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
• 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
- ATSI Customary marriages
- Same–sex r/ships
- Single-parent families
- De facto r/ships
- Blended, Extended etc
• 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.
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
• 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
LEGAL REQUIREMENTS OF
• 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.’
- 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)
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
• 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.
• 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.
LEGAL CONSEQUENCES AND
• 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
3. Property Rights
4. Contract and Agency
• 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.
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,
- 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
• 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
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
• 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.
• 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
• 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).
CONTRACT & AGENCY
What about debts?
• Just like there is no law stating that assets become
joint property after marriage, the same applies to
• 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.
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
• 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
• 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