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Nature of family law 1






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Nature of family law 1 Presentation Transcript

  • 1. Family Law
    The Nature of Family Law
  • 2. Themes and Challenges
    The role of the law in encouraging cooperation and resolving conflict in regard to family
    Issues of compliance and non-compliance
    Changes to family law as a response to changing values in the community
    The role of law reform in achieving just outcomes for family members and society
    The effectiveness of legal and non-legal responses in achieving just outcomes for family members.
    Nature of Family Law
  • 3. Wide ranging area of law which covers care of children, property allocation when a marriage breaks down and domestic violence etc
    Main Function of the Family: Care and Protection of its members
    The Concept of Family Law
  • 4. Family Relationships
  • 5. Why is it difficult to define a family?
    Outline the factors that have led to change in our society for the development of alternative family relationships
    Discussion Time
  • 6. Marriage is ‘the union of a man and a woman to the exclusion of all others’ Marriage Act 1961 (Cth)
    Based on the English Case Hyde V Hyde and Woodmansee (1866) ‘voluntary union for life of one man and one woman, to the exclusion of all others’
    Marriage is voluntary, is for life (however having legal right to divorce), must be different sexes and polygamy is illegal.
    Legal Requirements of Marriage
  • 7. Gender
    States that marriage involves only the union of man and woman (s5)
    Marriageable age
    May marry at 18, if between 16 to 18 you must apply to a judge or magistrate (s12) for marriage authorisation. Only exceptional cases will be approved
    Prohibited Relationships (consanguinity)
    Cannot marry a blood relative (ancestor, descendant, sibling) including adopted persons
    Used to include Affinity Relationships (Through Marriage – Uncle, Niece etc) however in 1975 this was abolished
    Marriage Act 1961 (Cth)
  • 8. Notice of Marriage
    Couples must complete a notice of intended Marriage form authorised by a marriage celebrant. Must include proof of age and whether they have been married previously
    Requirements of a valid marriage ceremony
    Authorised Marriage celebrant must perform the ceremony and there must be two over 18 witnesses
    Issue of a marriage certificate which is signed by the husband, wife and two witnesses
    One copy of the certificate must be lodged within 14 days
  • 9. Void Marriages
    Same- sex
    Consent was not given by one individual
    One or both of the individuals was married previously
    One or both of the individuals were too young
    Too closely related
    If the court decides the marriage to be invalid, in the eyes of the law it is nullified
  • 10. Mutual duties of husband and Wife
    The law does not set out partners duties and responsibilities. It does intervene where the marriage breaks down.
    Consortium – care and affection for each other
    Traditional belief – Unito Caro ‘the man and wife are one and that one is the husband’
    No Law against Adultery
    Financial payment made by one spouse to contribute to the care and welfare of other spouse and/or children
    Spousal Maintenance is not automatic and may only be granted for a limited period
    Legal consequences and responsibilities of marriage
  • 11. Property Rights
    Marital home – can be purchased in equal or unequal shares
    Ownership is based upon who paid for it
    Contracts are not altered by marriage
    Spouses cannot be held responsible for each others debts
  • 12. Wills
    A document that states how a person intends to have his/her property distributed after death
    Intestate – Person who does not leave a will
    Executor – person who administers the estate(property)
    Family members can apply for a family provision order to be included in the Will