Definition

According to section 43(b) of the Family Law Act 1975 (Cth), a family is “the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children.” This definition is a particularly important one as it introduces the underlying concept of Family Law; the legal system is only required to interfere in a family relationship when it is necessary to protect dependent individuals (especially children), as the nominal function of a family is to provide care and protection for all members of the family unit. Nowadays, the state has only very loose control on relationships, except where infringement of the law occurs and even then its only concern is to ensure that vulnerable parties are protected.

The Marriage Act 1961 (Cth) was the first piece of Australian legislation concerning the formalities of marriage (where the Marriage Act 1753 (UK) developed by Lord Hardwicke had previously been followed) and according to this Act, no ceremony was necessary but certain requirements had to be met: an offer had to be made, a statement of acceptance delivered in response and an understanding of engagement on the part of both individuals. Essentially, engagement was once legally binding and any breach of terms rendered the offending party liable to litigation for damages. A spurned woman had little chance of receiving another offer. Fortunately, this binding commitment and the stigmatisation thereby created were removed by section 111(A) of the Marriage Amendment Act 1976 (Cth). Still, the decision made by Lord Penzance in the case of Hyde v. Hyde and Woodmansee 1866 is codified into both section 46(1) of the Marriage Act 1961 (Cth) and section 43(a) of the Family Law Act 1975 (Cth); a marriage is defined as a: “voluntary union for life of one man and one woman to the exclusion of all others.”

Dissolution

If a marriage can be demonstrated to have been the product of duress on the part of either party, it can be declared dissolute. Marriageable age in Australia is 18, save in exceptional circumstances. If either or both parties are 16-18 years in age, the court will consider the maturity and character of the couple, economic circumstances and parental views (although section 12 of the Marriage Act 1961 (Cth) state that parental consent can be overruled if the court believes that exceptional circumstances exist). Unfortunately, no definition as to what constitutes an exceptional circumstance exists, as (for instance) the pregnancy of a minor has and has not been accepted as a valid reason in different instances (Re K 1964 and Re W 1968, respectively - so labelled because they were minors).

Additionally, it is important that there has been a progressive deterioration in the formality associated with divorce; where the grant of a divorce was once contingent on a ‘matrimonial offence’ (usually habitual intoxication, cruelty, adultery, criminal conviction or failure to observe ‘conjugal rights’), all that is now required is an intent to separate (and a 12 month period where the individuals live “separately and apart,” unless there are children who would be negatively affected by such an arrangement. The “for life” element of the definition is now accepted as being a statement of intent, rather than an acceptance of a contractual obligation. The increasing sensitivity of the legal system in dealing with this most poignant of issues is perhaps the only trait which distinguishes Family Law from Consumer Law.

Accepted types of marriage

It is important to note that ‘families’ recognised by the Australian legal system tend to be nuclear in structure, although there is increasing recognition of new types of units (blended, single parent and |de facto families in particular). A homosexual marriage is not currently permissible, although concessions have been made to this effect, such as the case of Hope and Brown v. NIB Medical Insurance Ltd. 1994, (which treats homosexual unions as legal marriages for medical insurance purposes) and the Property (Relationships) Legislation Amendment Act 1999 (Cth) (which amends its counterpart, the De Facto Relationships Act 1984 (Cth) - now the Property Relationship Act 1984 (Cth) - in order to give same sex couples some of the same property division and inheritance rights as heterosexual couples) and the definition of the Victims Support and Rehabilitation Act 1996 (NSW) has been amended to expand the definition of a ‘family victim’. Same sex couples are still unable to adopt children, however - the Adoption of Children Act 1965 (Cth) forbids it, semantically. In the case of W v. G, Justice Hodgson made one lesbian pay her ex-partner $150,000 child maintenance for two children born via artificial insemination.

Marriages concerning individuals who have undergone transgender surgery are a particularly sensitive issue in Australia at present; the matter of Corbett v. Corbett 1971 initially dictated that the gender an individual was born with was immutable for legal purposes, although that decision has been (very recently) overthrown in the matter of Kevin and Jennifer 2003 where the court now acknowledges an individual’s ‘brain sex’ - the gender they believe is mentally right for them.

Polygamy is not legal; moreover, bigamy (as it is known) is a crime - only the first marriage entered into will be acknowledged. Despite the customary Australian practice of acknowledging marriages legally entered into in other nations, polygamy is not acknowledged save where divorce, property settlement and various types of court orders are concerned (provided under section 6 of the Family Law Act 1975 (Cth)). In a similar vein, a new marriage cannot begin until the previous one is formally terminated - in the case of Schmidt 1976 a marriage was declared void as it had taken place before the termination of its predecessor.

Ceremonies

A valid marriage ceremony is a complicated issue unto itself. The Marriage Act 1961 (Cth) lists the following criteria as being necessary:

  • The ceremony must be performed under the supervision of an authorised marriage celebrant (either a religious minister or a civil marriage celebrant).
  • Two adults (i.e. individuals 18 years or over) must bear witness to the marriage.
  • The celebrant must state their authority to perform the marriage service and make a statement denoting the seriousness of the couple’s decision.
  • The celebrant must provide details of the marriage to the appropriate authorities by way of registering the marriage.
  • The celebrant must provide the couple with the signed marriage certificate. Signatures must be taken from the celebrant, the prospective husband and wife and the two adult witnesses.
  • Besides this, there is no restriction on the nature of the ceremony - section 45(1) of the Marriage Act 1961 (Cth) dictates all that is necessary; a marriage will, however, be declared void if it violates section 21 of the Marriage Act 1961 (Cth) - this section requires that:
  • Both parties must be free at the time to marry, including being of marriageable age or have appropriate consent.
  • The parties must not be within a prohibited (consanguineous) relationship.
  • Both parties must give real and unforced consent.
  • The marriage must be duly solemnised.
  • Most of these requirements can be traced back to the Marriage Act 1753 (UK).

    A recent addition to the convolution is the increasing demand for acknowledgement of indigenous Australian (Aboriginal and Torres Strait Islander) customary marriages, which have to date been rebuked as they do not meet the criteria above. A parliamentary report entitled ’Twenty years of Law Reform’ suggested, however, that marriages should be acknowledged to preserve the civil rights of indigenous people (despite the technicalities of the Social Security Act 1947 (Cth) and Income Tax Assessment Act 1936 (Cth), each of which is innately prejudiced against customary law (which has received little to no recognition in most aspects of the Australian legal system, save perhaps criminal justice). The best that can yet be achieved is a kind of de facto relationship status.

    Marital expectations

    Legal responsibilities that accompany marriage are fairly minimal - the notion of a mandatory sexual relationship (a legacy of the doctrine of unito caro) has been abolished and unless criminal infractions occur, the couple are free to conduct themselves as they see fit, although there are, of course, social expectations that each spouse will care and display affection for the other. There are some exceptions, particularly in instances where one spouse is financially dependent on the other. Section 72 of the Family Law Act 1975 (Cth) sets out the basic provisions for spousal maintenance, including care and control of a child (under 18 years) of the marriage, physical and/or mental incapacitation and “any other adequate reason” determined by the court. The case of Rowen and Rowen 1977 was the first application of these principles, wherein the wife was refused a maintenance order because the criterion of ‘need’ was not met.

    Marriage does not generally alter property ownership, although joint ownership is an issue that can become very awkward in court - where this does become an issue, ownership of the matrimonial home generally goes to the wife as statistics indicate that women are more frequently made primarily responsible for care of children and still have lower earning power - this is, of course, situation-specific and there is no legal doctrine which favours conferral of property or responsibility for children upon women. Laws of agency no longer apply and either party can begin legal action against the other. If a will existed prior to the marriage, it is nullified and it is assumed that the individual’s spouse will become responsible for property after their death (in accordance with the Family Provision Act 1982 (NSW) which also requires that some provision be made for children of a marriage).

    Care of children

    Children are provided for by two measures: care and control. ‘Care’ refers to the need to meet standards of health, nourishment, shelter and other basic needs, while ‘control’ refers to the need to protect children from harm and illegal activities, as well as protecting others from that child; the law will intervene in a parent’s guardianship (or, rather more accurately, responsibility) of a child only when one of these has been violated (that is, when abuse has occurred or a child is declared uncontrollable - in some cases, the parent may be held liable for damages incurred as a result of the child’s actions). The Children and Young Persons (Care and Protection) Act 1998 (NSW) empowers the Children’s Court of New South Wales to place a child under the care and control of someone other than the biological parents - the child then becomes a ‘ward of the state’ until the age of 18. In exceptional cases, a child may choose another legal guardian if it is demonstrable that the child is mature enough to make such a decision and that the parents are not acting with the child’s best interests first and foremost (such as the case of the Marriage of A (1981).

    Parents do not have the right to refuse their child an education (the Education Act 1990 (NSW) states that a child must attend a recognised school and be educated to the highest possible standard between the ages of 6 and 15 according to NSW Board of Studies curricula), although the education system is limited in the punishments it can administer (section 35 of the Education Act 1990 (NSW) ensures that punishment is administered with respect to the child’s ‘human dignity’ - the Education Reform Amendment (School Discipline) Act 1995 (NSW) bans the use of corporal punishment). If any physical punishment performed upon a child is judged severe enough (under the Crimes Act 1900 (NSW)) then the party responsible may be charged with assault. Similarly, the court can overrule a parent’s decision to refuse a child access to medical treatment (eg a blood transfusion); once the child reaches 14 years of age, the Minors (Property and Contracts) Act 1970 (NSW) states that the child is responsible for any decision relating to medical treatment irrespective of the parent’s consent. Unfortunately, intellectually disabled children can experience great difficulty making such decisions and the case of Secretary, Department of Health and Community Services v. JMB and SMB (1992) denied parents the ability to sterilise their intellectually disabled daughter and thereby prevented most operations of this nature and intent occurring within Australia.

    Single-parent families are in a highly vulnerable situation, misrepresented by the media as being parasites within the social security system. In reality, while many do depend upon Centrelink and the Child Support Agency, this is most often the product of negligent ex-spouses, who can now be ordered to pay maintenance (according to the Child Support Scheme which has been in action since 1988), improving both the social security system and the lot of the single parent. It is also a criminal offence to discriminate on the basis of marital status according to the Anti-Discrimination Act 1977 (NSW) - if a single parent feels as though they have suffered some form of discrimination, they may apply to the Anti-Discrimination Board or, if they are unsuccessful there, to the Equal Opportunity Division of the Administrative Decisions Tribunal (ADT). The Tribunal can award damages of up to $40,000 or simply order the individual responsible for the discriminatory act not to repeat the action.

    Blended families (also known as step families) are primarily afflicted by difficulties associated with forming a cohesive unit after the break-up of another or the death of a previous partner. Interestingly, 33% of all registered marriages in Australia involved at least one other married partner and while men tend to remarry sooner than women, both are now marrying at increasingly greater ages. More couples who form blended families are cohabiting before marriage and there may in time emerge a trend which sees most prospective blended couples simply cohabiting, as there is less emotional commitment and more freedom. If a parent adopts step-children (which can be done normally, but with the complication of applying to the Family Court), then they are legally responsible for them as they would be their own. Unfortunately for these children, they have no purchase on their step-parent’s estate if that parent dies intestate (i.e. without a will).

    See also: Family law in America and Europe


    Information derived from Heinemann Legal Studies textbook, written by Michael Brogan, Wayne Gleeson, Tony Foley, Veronica Siow and Therese Ejsak for the NSW HSC syllabus.

    New Birth Technology

    One of the greatest challenges to the effectiveness of law reform over the past thirty years has been the technology advances. Especially in the area of birth technology, that raises a lot of moral and ethical questions.

    Nowadays children can be born from various means of conception, including:
    IUI- intra-uterine insemination
    GIFT- gamete intra-Fallopian transfer
    IVF- in vitro fertilization
    IVF with sperm donor
    IVF with egg donor
    IVF with egg and sperm donor
    ICSI- intracytoplasmic sperm injection
    surrogacy- using any combination of the above

    And recent development allows us to:

    Laws in this matter are for state governments, although many argue that there should be uniform laws across Australia.

    Some of the moral and legal questions that arise with new birth technologies include :

      Is it moral?
      This sort of technology can be seen as 'playing god' or that women’s bodies are being exploited.

      Women's Rights
      Some feminist groups argue that it abuses the rights of women, because they are being treated as 'living laboratories', used as experimental purposes, given dangerous medical treatments and drugs. They argue that the risks far outweigh the possible benefits.

      Rights of access to the technology:
      Not all people have the same access to new technologies.
      Factors include:-Cost, which is very high, so becomes a privilege for the wealthy. -And family arrangements, In NSW, ART (artifical reproduction technology) committees generally allow the treatment of heterosexual couples in long-term de facto relationships. However, in March 1997, the Human Rights and Equal Opportunity Commission (Cth) found that three women had been denied access to ART because they were not married. They had been discriminated against and were awarded $30 000 in damages. The rights of lesbian women gaining access to sperm banks has become an issue. It hasn't been tested, but it is likely that denying a lesbian access to fertility services would be illegal under NSW's anti-discrimination laws.

      Death of a spouse
      In Australia, the National Health and Medical Research Council guidelines state that it is unacceptable to use eggs, sperm or embryo harvested from dead people. In Victoria, the use of eggs or sperm from after death is illegal. In NSW it is legal to inseminate a woman with her dead husband’s sperm if there was no indication that the husband or family was against it.

      Effect on the resulting children Many people feel that such children have a right to know their genetic inheritance. However, the rights of the donor’s privacy needs to be protected.

      Embryo status and experimentation
      A by-product of the IVF program is that more embryos are created than are implanted. The question arises as to what to do with the excess embryos. Doctors argue that they should be able to experiment on them. Others argue that embryos are human life and should not be tampered with. In 1996, a Tasmanian court held that two embryos belonging to a women and her dead husband could inherit from the husband’s estate if a child was born from them.

      Legal liability of donors
      Who should be held responsible if the child is born with birth defects? Medical staff involved in the creation and implantation of the embryos in an IVF program? Or the donor of the egg or sperm? Or if its a surrogacy case, the surrogate mother?

    Under Australian common law, the mother of a child is the woman who gives birth, and the father is her husband (or de facto father) or person who acknowledges being the father.

    The Artificial Conception Act 1984 (NSW)- gave these children the same status as children conceived naturally. It also states that if the husband of the woman who is using the donor sperm consents to the use, then the husband is the father of the resulting child. The act did not extend to include those children conceived by donor egg, and the woman who gave birth is still the mother. The Artificial Conception Act was replaced by the Status of Children Act 1996 (NSW) which included the donated ova.

    The Adoption Information Act 1990(NSW) states that adopted children have the right to try and make contact with their parents.

    In the case of donated sperm or ova, the question arises to which adults should assume responsibility for care and control of the child. The Marriage Act 1961 (Cth) and the Family Law Act 1975 (Cth) both state that a child born as a result of birth technology has as parents the woman who gave birth and her husband or partner. The origin of the sperm or ova does not alter this. The Family Law Act 1975 (Cth) legitimises a child conceived by either artificial insemination or in vitro fertilization.

    The Adoption Act 2000 (NSW) states that commercial surrogacy is illegal. But altruistic surrogacy is permitted, and the birth mother has to relinquish the child to be adopted by the sperm donor’s wife.

    Points for and against surrogacy:
    For

    • people have a right to form a family in the way that they wish
    • a woman has the right to use and control her body as she wishes
    • surrogacy may be the only option for some childless couples
    • private surrogacy arrangements are impossible to prevent. Thus they should be legalised so that counselling and advice is available.
    • forbidding surrogacy will lead to a black market trade for babies
    • some surrogacy arrangements are morally commendable. For example, a woman having a baby for her sister.

    Against
    • a child can be treated as an item for sale
    • surrogate mother used as a baby-producing machine
    • can lead to exploitation of poor people
    • the surrogate mother and childless couple will suffer if the surrogate mother changes her mind
    • the child can be harmed because of confusion about family relationships.

    The Australian law still hasn't quite caught up with technology. People are still being discriminated against, and different ways of doing things have still not been taken into account.


    Information from Heinemaan Legal Studies textbook. By Michael Brogan, Wayne Gleeson, Tony Foley, Veronica Siow and Threrese Ejsak.

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