Family Law TOPIC 2 LECTURE 2: Marriage, Divorce, and De Facto Relationships Study Notes

Family Law Lecture Notes: Marriage, Divorce, and De Facto Relationships

Introduction

This lecture builds upon the foundational concepts of the Family Law Act in Australia. It covers:

  1. Legislative requirements for marriage and factors that may render a marriage invalid.

  2. Divorce legislation under the Family Law Act.

  3. An overview of de facto relationships and recent legal provisions concerning them.

Marriage

Historical Origins of Marriage

  • The concept of marriage has existed for several thousand years, initially observed in Mesopotamia.

  • Before modern nuclear families, groups of up to 30 people, often with multiple leaders, existed.

  • The development of agrarian societies necessitated more stable familial structures, leading to formalized marriage arrangements.

  • Ancient civilizations, such as the Hebrews, Greeks, and Romans, ingrained marriage as both a property arrangement and a social contract.

    • Ancient Greece: Fathers began the practice of giving away daughters for legitimate offspring, primarily to ensure paternity.

  • The institution of marriage during the Middle Ages incorporated religious doctrines under the control of the Roman Catholic Church, requiring respect and fidelity from husbands.

  • The Reformation and Enlightenment shifted marriage towards companionship and love, moving away from viewing women as property, although traditional hierarchies remained.

  • Recent legal changes require the recognition of equality in marriages, including same-sex and interrelational unions.

Legislative Requirements for Marriage in Australia

  • Defined under Section 5 of the Marriage Act 1961 (amended in 2017): "Marriage means the union of two people to the exclusion of all others voluntarily entered into for life."

    • This change legalized same-sex marriage after a plebiscite where 61.6% voted for the amendment.

  • Key requirements include:

    1. Parties must be of marriageable age (18 years or older).

    2. Consent must be freely given - consent must not be obtained by fraud, duress, or if one party is mentally incapable.

    3. Marriage must be solemnized properly by authorized persons, which includes registered ministers and celebrants.

    4. Prohibited Relationships - defined under Section 23B (ancestors, descendants, and siblings cannot marry).

Validity and Voids in Marriages

  • Void Marriages: According to Section 23B:

    • If either party is lawfully married to someone else.

    • Parties must not be in a prohibited relationship.

    • Marriage must not be incorrectly solemnized, must have real consent, or if one party is not of marriageable age.

  • If a marriage is declared void (by the Family Law Act), it is treated as if it never existed, eliminating the need for a divorce.

  • Courts can declare marriages valid based on evidence, such as cohabitation, despite the absence of a marriage certificate.

Historical Context of Divorce

  • Until the Matrimonial Causes Act 1857, divorces had to be obtained through a private act of Parliament.

  • After 1857, the Matrimonial Causes Act (NSW 1873) allowed the Supreme Court jurisdiction over divorces.

  • Early divorce relied on fault-based grounds, focused on protecting family morals, and often causing complex legal entanglements concerning custody and property rights.

Divorce under the Family Law Act

  • The Family Law Act 1975 now governs divorce proceedings:

    • Ground for divorce: Irretrievable breakdown of the marriage (Section 48).

    • Requires parties to live separately for 12 months prior to filing.

    • Conditions for separation include communication of intention to separate.

    • Jurisdiction: Can be issued in Federal Circuit and Family Court or a state’s Supreme Court.

    • Divorce orders take effect after one month and a day from being granted, unless a party dies.

    • Children’s custody arrangements need to be resolved before a divorce order can take effect.

  • Recent legislative updates have removed mandatory counseling for divorces of less than two years.

De Facto Relationships

  • Defined by Section 4AA of the Family Law Act as:

    • Both parties not legally married and not related by family.

    • Living together on a genuine domestic basis with factors considered:

    • Duration of the relationship, shared living arrangements, financial interdependence, and child support responsibilities.

  • Courts assess the existence of a de facto relationship based on circumstantial evidence, often leading to varying interpretations.

  • Relationships can exist even if one partner is legally married or previously in a de facto relationship.

  • Financial arrangements post-separation are governed by provisions in Part 8 of the Family Law Act, with two years to file claims related to property division after separation.

Conclusion

The complex evolution of family law in Australia illustrates the gradual transformation from marriage as a property and contract-focused institution to a more egalitarian framework that recognizes diverse relationships. The legislative nuances in marriage, divorce, and de facto relationships reflect ongoing changes in societal norms and values. Understanding these legal frameworks is crucial for effectively navigating family law issues in Australia, especially as societal norms continue to evolve.