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  2. 2. WHAT IS A FAMILY? • The main function of a family is the care and protection of its members. The law in Australia governs family r/ships to ensure people in family r/ships are financially secure and that any children of the r/ship are properly cared for. • The more traditional and easily recognisable family r/ship is one based on a marriage. However, a range of family r/ships currently exist in Australia including but not limited to: - ATSI Customary marriages - Same–sex r/ships - Single-parent families - De facto r/ships - Blended, Extended etc
  3. 3. MARRIAGE LAW • Under section 51 (xxi and xxii) of the Constitution, the federal government has the power and authority to make laws governing marriage and divorce. • The Marriage Act 1961 (Cth) established the legal requirement of a valid marriage. • The Family Law Act 1975 (Cth) sets out the legal duties and obligations that a marriage creates. The main aim of this Act was to reform the law governing the dissolution (end) of a marriage.
  4. 4. WHAT ABOUT DE FACTO’S? • Previously, only state parliaments could pass laws relating to de facto r/ships, but now the states have referred their powers to the Cth with respect to parenting and property disputes in the context of a marriage or de facto r/ship. • Once the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) was passed, any questions about property division and de facto spousal maintenance are now determined by the FLA.
  5. 5. LEGAL REQUIREMENTS OF MARRIAGE Legal definition • In Hyde v Hyde and Woodmansee (1866) Lord Penzance concluded that marriage is the voluntary union, for life, of one man, and one woman, to the exclusion of all others.’ Elements: - must be voluntarily entered into [Di Mento v Visalli (1973)] - for life (although legally now have right to divorce) - different sexes (heterosexual; man and woman only) - two people only (no polygamy)
  6. 6. REQUIREMENTS FOR VALID MARRIAGEThe MA 1961 (Cth) sets out the following requirements in order for a marriage to be considered VALID in Australia: • GENDER – s88E states specifically that same–sex marriage that took place in another country will not be considered valid in Australia. • MARRIAGEABLE AGE – 18 years, however between 16-18 application must be made to a judge/magistrate. Not under 16. • PROHIBITED R/SHIPS – Cannot marry anyone closely related by birth or marriage. No descendant / ancestor. • NOTICE – Must be given to the authorised celebrant no earlier than 18 months before and no later 1 month, 1 day before. Notice must be in writing and signed by both parties in presence of witness. Proof of age is necessary and any relevant documentation must be provided (e.g. in case of previous marriage, dissolution certificate). • VALID CEREMONY – Authorised celebrant, two witnesses over 18 years and signed certificate.
  7. 7. VOID MARRIAGES • Certain circumstances render a marriage void: - Parties are of same sex - Consent not freely given - One / both parties at time already married - One / both parties too young - Too closely related - Marriage did not meet MA requirements • If a marriage is found invalid a court can nullify (declare legally invalid) the marriage. This annulment (declaration by court that supposed marriage is invalid) is deemed to have never taken place.
  8. 8. LEGAL CONSEQUENCES AND RESPONSIBILITIES OF MARRIAGE • Marriage is a legally binding agreement between a man and woman which imposes mutual duties and obligations. These are: 1. Mutual duties of husband and wife 2. Maintenance 3. Property Rights 4. Contract and Agency 5. Wills
  9. 9. MUTUAL DUTIES • While spouses are mutually responsible to one another, the law only intervenes: - in cases where marriage has broken down - where one/both parties have not fulfilled their responsibilities - when spousal rights have been infringed. • The legal expectation is that both parties will support each other financially, emotionally, and remain faithful ; expectations which CANNOT be enforced by the law. • Interesting point: marriage doe not give an automatic right to sexual relations with one’s spouse. Anyone who intentionally engages in sex with a person who has not consented has committed a crime, whether or not he/she is married to the victim.
  10. 10. MAINTENANCE Definition: a financial payment made by one spouse to contribute to the care and welfare of the other spouse and/or children of the marriage. • S72 of the FLA can obligate a spouse to pay maintenance to the other spouse if: - The proposed payee is unable to support him/herself, and - The proposed payer spouse has the capacity to pay. e.g. the person has care/control of a child of the marriage who is <18 OR the person is unable to be employed due to age or mental/physical incapacity.
  11. 11. MAINTENANCE cont • There is no automatic right to maintenance, as the court considers the question of ‘need’ when deciding on matters of maintenance. • Courts must consider the factors set out under ss75(2) and 79(4) of the FLA in respect of both spouses. • If it is sought SM is only granted once a marriage has ended and for a limited period of time (e.g. until the spouse becomes financially independent). CHILDREN AND MAINTENANCE • The Child Support (Registration and Collection Act 1988 (Cth) created the Child Support Scheme (CSS) and the Child Support Agency (CSA) which both collect and enforce court orders and child support agreement and spousal maintenance. • The Child Support (Assessment) Act 1989 (Cth) established set formulas in the assessment of child support. • The aim is to ensure both parents fulfil their financial responsibility for their children.
  12. 12. MAINTENANCE cont • In calculating the amount parents are capable of paying the CSA takes into account taxable income, the amount needed by the parent to pay for their own needs (self- support) and the parent’s percentage of care of the child. • If parents have shared child care, CSA is further adjusted and both parents may receive family assistance payments to help them support their children.
  13. 13. PROPERTY RIGHTS • This relates to all types of property acquired by the married parties. • Usually the largest asset is the family home. When purchased, there are a number of ways to do so, however the more popular option for owning a home for married couples and de factos is joint tenancy. • Joint tenancy means that if one partner dies, the surviving spouse automatically inherits the property. • Tenancy in common is preferred when a spouse may not want their share to automatically go to their surviving spouse and instead may wish it to be inherited by a child of a previous r/ship (for example). • Not all property acquired during the marriage may be joint property, meaning that any property acquired in one name will belong to that person as well as any property owned by a person prior to the marriage. • Remember, marriage does not automatically change property ownership; it is the parties themselves who may wish to alter the property interests. If they do not agree this is where the FC steps in (see page 301 for court’s considerations).
  14. 14. CONTRACT & AGENCY What about debts? • Just like there is no law stating that assets become joint property after marriage, the same applies to debts. • One spouse cannot be held liable for the debts acquired by the other in their spouses’ name. Courts however, may wish to alter property interests (s79 FLA) and it is here is where some spouses may wish to exercise s 119 of the FLA allowing them to sue each other in contract or tort.
  15. 15. WILLS Definition: a document that states how a person intends to have his / her property distributed after death. • An executor must obtain a grant of probate before the will of the deceased person can be administered (that is when money/ assets can be released). • If someone dies without a valid will they die ‘intestate’ and the state laws govern the distribution of such a person’s property. [ Generally, when all expenses are paid for, the estate usually goes to the surviving spouse or children of the marriage. Also, parents and siblings of the deceased may all inherit if there is no valid will]. • Under the Succession Act 2006 (NSW) which was amended by the Succession Amendment (Intestacy) Act 2009 (NSW) property is distributed to certain family members according to a predetermined formula. • The Succession Amendment (Family Provision) Act 2008 (NSW) also amended the SA 2006, so that while a person is able to leave property to whomever he/she may choose, a family member under s57 of the SA 2006 now allows certain family members to apply for a family provision order.