Legal Essay – Family Law

Society places laws upon different family arrangements to ensure that members of all families have legal protection. Marriage is the union of man and women to become husband and wife. However, when a couple undergoes divorce, in order for each individual to achieve justice, there are various laws that come into place. The laws regarding dissolution are: Family Law Act 1975 (Cth) and Property (Relationships) Act 1984 (NSW).

The Family Law Act 1975 (Cwlth) is a statute that governs divorce law. Under this act there is only one ground for divorce and this is to prove that there has been an irretrievable breakdown of marriage, which means that the marriage has broken down to such an extent that it cannot be put back together. Divorce breaks the legal bonds of marriage between couples. It does not deal with other matters such as: maintenance, the division of property, where children will live and who will be responsible for children’s care.

To prove this couples must live separately and a part for a period of 12 months before applying for divorce. Separately and apart can be defined by five different criteria’s; Intention, Separation under one roof, The ‘Kiss and make up’ clause, Marriages of less than two years and Decree nisi and decree absolute. For a couple to be living separately and apart there must be the intention on the part of at least one of the parties to the marriage to end the relationship. Under the Family Law Act, couples who are separates may try living together again for one period of up to three months.

Property settlements are often made by agreements between the parties, which saves the cost of going to court. According to the Property (Relationships) Act 1984 (NSW), when deciding on how to divide the property after the end of a marriage, the court will consider four things: the financial contribution of each party, the non-financial contribution of each party, the future needs and obligations of each party and whether or not there is a pre-nuptial agreement. Under the Property (Relationships)

Act, the court should divide the property in a way that is just and equitable, based on the partners contributions to the property, both financial and non-financial, and their contributions as homemaker and parent to the welfare of the family. For example in the Theodoropoulos v Theodosiou (1996) case one party got a greater share of the property based on their need for it in the future.

After a marriage breaks down, the Family court may make two kinds of maintenance orders; for one spouse to maintain the other and/ or for one parent to pay maintenance to the parent with whom the child will be residing. Spousal maintenance is not often awarded by the court and only if one party is unable to support him/herself. In considering the income of a person applying for spousal maintenance, the court may not take into account an income-tested pension or allowance like the parenting payment.

Under the Family Law Reform Act 1995 (Cwlth), parents whether married or not both have the responsibility for the care and welfare of their children. Both parents separately have responsibility for their children. The best interests of the child are of dominant consideration.

When deciding what is in the best interest of the child the court will consider the following: the wishes of the child, whether the order made is likely to lead to further dispute, the effect of the separation on the child, the nature of the relationship between the child and the parents and the need to protect the child. The court may order that a child’s interests be separately represented by an independent children’s lawyer. The lawyer’s duties include putting the child’s views before the court and minimising as far as possible the trauma of the proceedings

All parents are expected to contribute to the financial support of their children whether they were married, lived in a de-facto relationship, or never lived together at all. The amount to be paid depends on the income and financial situation of both parents. After a marriage breaks down, the Family Court may make two kinds of maintenance orders: for one spouse to maintain the other, and/or one parent to pay maintenance to the parent with whom the children live for the upkeep of children. Both parents have a duty of care to maintain their children until they reach the age of 18.

It is evident that when both parties undergo divorce, justice is always delivered through the family law act 1975 (cwlth). Although divorce is easy to obtain, it is made sure child maintenance is always in the childs best interests and property settlements are equally divided through court, thus showing that the law is effective in achieving justice for parties involved in relationship breakdowns.