Australian Family Law and Major Legal Problems of the Field

Family Law

The two cornerstones of Australian family law are a marriage and de facto relationship, including same sex relationship. The ultimate significance of a marriage and de facto relationship as the underlying fundamentals of Australia’s family law lies in the fact that these two types of family related states and interactions give birth to a wide array of legal issues that can be resolved only in the framework of family law. Most typical and important legal issues and thus topics of Australia’s family law include divorce, child support, spousal maintenance, property division, household content division, allocation and adjustment, parenting arrangements, adult child maintenance, etc.

The majority of the aforementioned legal issues, with the exception of child support, are regulated by Australia’s Family Law Act. This Act is a piece of federal legislation, which is enforceable in all states and territories of Australia. The Family Court of Australia and the Federal Magistrates Court exercise subject-matter jurisdiction under the Family Law Act. However, it needs to be mentioned that Western Australia has established its own Family Court, irrespective of the fact that the state also applies federal law to regulate the aforementioned legal issues. On the other hand, the issue of child support is regulated through child support schemes.

Divorce is the first and foremost legal issue encountered in the framework of Australia’s family law. It is extremely interesting to note that Australia has enacted a no-fault divorce legal regime. This implies that fault/guilt of either of the spouses is not taken into consideration by the court when deciding a case of divorce. The Family Law Act of Australia makes it crystal clear that the only ground for divorce, also defined as the dissolution of a marriage, can be a situation when the marriage ‘has broken down irretrievably’. The question is how to prove the irretrievability of breaking down of a marriage. The answer is that the irretrievable breaking down of a marriage can be established by virtue of the fact that the parties have separated and lived apart for at least one year. As soon as the aforesaid ground is established, the court will grant divorce. The major legal point in this area is that the court may decide not to grant divorce if it is not satisfied that necessary arrangements have been made by the parents in respect to their children.

Division, allocation and adjustment of marital property constitute another popular topic and legal issue of Australia’s family law. Broadly speaking, Australia has adopted a discretionary legal regime for division of property in case of divorce. However, the same discretionary regime is also applied to the breakdown of a de facto relationship, including a same sex relationship. This notwithstanding, the major legal problems in this domain may include jurisdictional requirements and consideration, such as the statutory duration of a de facto relationship as the qualifying requirement, the birth of any child from a de facto relationship and the minimal age of such a child (at least 2 years), the time of separation, specific geographical limitations, etc. Though the court is authorised to exercise discretional power to amend the interests of parties in the property as it deems appropriate, there are certain requirements that the court must take into account, such as: 1) the parties’ contributions, both financial and non-financial, to the acquisition, maintenance or repair of the property; 2) parties contributions to the welfare of the family; 3) the legal effect of any proposed order on the earning capacity of either party; 4) any liability ensuing from child support; etc.

Child support, spousal maintenance, parenting arrangements and adult child maintenance constitute other sets of legal issues and problems encountered by the spouses and Australian lawyers in the framework of Australia’s family law.

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