The Australian Marriage Act 1961 defines “marriage” as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
People at the age of 18 or over may marry a person of the opposite sex, thought people over 16 but under 18 may marry with the court’s authorisation and the consent of the parents or guardians. It is an offence to marry a person who is not of marriageable age.
Marriages are to be performed by either marriage celebrants (at the Registry or privately) or religious celebrants.
A completed notice of intention to marry must be given to the celebrant at least a month before the date on which the marriage is to take place.
Foreign marriages are valid under Australian law if they were validly made under the law of the foreign country.
It is an offence (of bigamy) to marry whilst already married.
De facto relationships
The Property (Relationships) Act 1984 (NSW) defines a de facto relationship as “a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family”. Unlike marriage, this includes two persons of the same sex.
When determining whether or not a de facto relationship exists, all of the circumstances of the relationship are to be taken into account, including:
- the duration of the relationship
- the nature and extent of common residence
- whether or not a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- the ownership, use and acquisition of property
- the degree of mutual commitment to a shared life
- the care and support of children
- the performance of household duties
- the reputation and public aspects of the relationship
Divorce and nullity
The Family Law Act 1975 (Cth) defines “divorce” as the “termination of a marriage otherwise than by the death of a party to the marriage”.
The Family Court, state Supreme Court and Federal Circuit Court have the jurisdiction to grant a divorce or a decree of nullity to either Australian citizens, persons domiciled in Australia or persons who are an ordinary resident of Australia and have been so for the 12 month period prior to proceedings being instituted. Proceedings are usually brought in the Federal Circuit Court.
A party may make an application for divorce if there has been an irretrievable breakdown of the marriage and the court is satisfied that the parties have separated and lived separately for a continuous period of 12 months before the application and there is no reasonable likelihood of the cohabitation being resumed. The divorce order takes effect 1 month after the date on which the divorce order is made.
A party may make an application for a decree of nullity of marriage on the ground that the marriage was void in the first place.
Division of property
The Family Court, State Supreme Court and the Federal Circuit Court have the power to divide matrimonial property after the separation of the parties, upon an application from one or both of the parties. The orders the court makes can either by the consent of the parties or by the court’s own determination.
All de facto couples have the same rights as married couples provided that one or more of the following applies:
- the de facto relationship lasted for at least two years in total
- the de facto partners had a child together
- a partner has made a substantial contribution to the property or finances of the other partner
- the relationship was registered under a State or Territory law
- the partner making the application lived for at least one-third of the relationship in NSW or another state or territory to which the law applies.
The court only considers property that arises out of the relationship but this is quite broad and includes property owned by the parties before the marriage, property purchased during the marriage, gifts and inheritances, superannuation, assets and goodwill built up in a business and compensation awards, redundancy payments and windfalls.
Once the matrimonial property and debts are identified, the court alters the property interests between the parties by making orders dividing or redistributing the property and debts. First they decide the value of the property that each party owns. Then they consider the financial and non-financial contributions in the past (as a percentage); and the parties present and future needs, including their income and capacity to earn, care of the children and the effect of orders on capacity to earn and financial resources. Then they consider whether or not the proposed division is just and equitable in all of the circumstances of the case.
Maintenance is paid by one party to another for financial support or the support of the children.
Spouse maintenance is paid to a former spouse when it can be shown that the former spouse is unable to support themselves due to them caring for the children or else unable to work due to ill health, age or lack of job sills. Spouse maintenance applications can be made to the court after separation and must be made within 12 months of divorce, unless special leave is granted by the court.
Child maintenance is payable by all parents, whether they are married, divorced, de facto or never lived together, regardless of who the children live with. The amount is collected by the Child Support agency and depends on the financial situation of both parents.
Parenting after separation
On the application of a party, the court may make orders about the parenting arrangements of a child (“parenting order”). The order may be either by consent, or by the court’s determination.
Parenting orders may stipulate:
- who the child lives with
- how much time the child will spend with each parent as well as other people, such as grandparents
- the allocation of parental responsibility (which can be joint)
- how the child will communicate with the parent they do not live with, or other people
- any other aspect of the care, development or welfare of a child.
If there is joint parental responsibility, a genuine effort must be made to reach a joint decision and long term decisions about the child must be made jointly.
The status of an order may be altered in the future if the parties enter into a parenting plan.
If you require advice on a family law matter, contact Peter O’Grady on 0418 248 214.