What is Family Law in Australia? | History, Sub-Domains & Role

A family in Australia is often defined as two or more individuals living under the same roof and bounded by marriage that can be registered or a de facto relationship, adoption, blood, or fostering. The Australian Government has a set of rules to govern families in Australia so that they can seek guidance from the law in problematic circumstances.

The family laws in Australia are very strict yet very flexible. It provides several chances for families to resolve their conflicts without appearing in court and going through the stressful and emotionally traumatic experience of family disputes. Family laws cover all aspects of the life of a family, such as marriage, divorce, parenting, child custody, spousal maintenance, and property distribution.

In this blog, I will tell you all the information you need to understand family law in Australia. From the sub domains of family laws to their role and functioning in Australia, everything is explained in detail for you. Read it through to learn the facts of family law.

History of Family Law in Australia

The family laws of Australia were not always there, as we all see them now. The laws underwent several reforms because, with time, people’s attitudes towards marriage also changed, which is reflected in the law. There is a long history behind the Family Law Act 1975 of Australia, which is currently being implemented in the country with several amendments over the years. 

Australia was a self-governing British colony before the Commonwealth of Australia was created in 1901, and until 1857, there was no such thing as divorce. In 1857, the Divorce Act was passed. Still, it was not implemented all over Australia until 1901, when Australia became independent and had power over divorce and marriage laws.

In 1959, the right to divorce was granted, but under specific circumstances such as adultery, desertion, addiction, insanity, violence, and imprisonment of a spouse. This divorce was called fault-based divorce, and it was essential to have a specific reason for divorce.

The Australian Government, led by Gough Whitlam, enacted the “Family Law Act 1975.” This Family Law Act introduced the “No Fault” divorce. In 1983, the concepts of “custody” and “guardianship of children” were introduced, and in 1996, the laws of mediation were added to save marriages. Furthermore, in 2009, the Australian Government included de facto couples under the Family Law Act.

Sub-Domains of Family Law in Australia

Family law in Australia is vast, as it covers almost all significant aspects of a person’s life. If you are looking for family law act 1975 summary then you are on right page. The following are the essential points of family law:

1. Divorce and Separation
2. Child Custody and Support
3. Property Settlement
4. Spousal Maintenance
5. Domestic Violence
6. Adoption and Surrogacy
7. Paternity Disputes

1. Divorce and Separation

Section 48 of the Family Law Act 1975 states, “(1) An application under this Act for a divorce order about a marriage shall be based on the ground that the marriage has broken down irretrievably.” Divorce is the legal dissolution of marriage in Australia. A couple can legally end their marriage with mutual understanding or on the grounds of one person’s fault. 

Australia also has a ”no-fault” divorce. This means that the court will not look for a reason for granting the divorce. None of the spouses has to prove that the other caused a problem that became a reason for the marriage breakdown. The reason for a “no-fault” divorce is that there are no chances left for the couple to get back together.

Divorce cases are dealt with under Part VI of the Family Law Act 1975 in the Federal Circuit and Family Court of Australia. The issues of financial support, child custody, and property divisions are not settled, and neither is the divorce. It is just the formal agreement at the end of a marriage.

2. Child Custody and Support 

Australian family laws promote a solid and meaningful bond between parents and children. Protecting the child is the primary focus when it comes to child custody. Family courts always aim to share parental duties, regardless of gender. However, in some cases, custody is given to one parent, in the child’s best interest.

Family courts only promote the deprivation of parental rights if it is essential on some specific grounds. Several important factors are considered when evaluating children’s custody and visitation arrangements. Several factors impact child custody, including moral character, financial status, and residential conditions.

3. Property Settlement

A property settlement is the legal property division between a couple after divorce or separation. It is essential to understand that property settlement differs from divorce. Property settlement is the formal order from the court or Binding Financial Agreement.

It records how the property has been distributed among a de facto married couple after the marriage breakdown. The division of property can be done while the couple is living together. Section 79 of the Family Law Act of 1975 has a four-step process for property division. These four steps of property division are as follows:

1. Valuing The Assets
2. Valuing The Contributions of Each Party
3. Calculating Future Needs
4. Considering The Practical Effect

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4. Spousal Maintenance

Spousal maintenance under the Family Law Act 1975 is when a person cannot meet his/her financial obligations from their income; their partner is responsible for supporting them financially. They are either in a relationship, a former couple, or a de facto partner.

The law of spousal maintenance is equally applicable to both partners. An individual has to support his partner as much as possible, even after the couple’s separation. The extent of support depends on the person’s income, and they are not burdened with spousal maintenance they cannot afford.

5. Domestic Violence

Family Law Act 1975, Section 4AB states that “for this Act, family violence means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member ) or causes the family member to be fearful.” Domestic violence has been observed as a significant health and welfare issue; therefore, the Australian Government is attempting to make laws even more strict regarding domestic violence in families.

Increased cases of domestic violence against women have impacted the laws. Therefore, the government has fixed the penalty from 2 years to up to lifetime imprisonment for a domestic law offender. The duration and severity of punishment depend on the gravity of the crime.

6. Adoption and Surrogacy

Adopting a child means choosing them as your child. It is essential to follow the legal pathway to adopt a child in Australia, as the parents are required to understand and fulfil their responsibilities toward the adopted child. The adoption rules differ for the de facto couple and are stated under Section 60HA of the Family Act of 1975.

Surrogacy is the process by which a couple or an eligible single person gets in contact with a woman to give birth to his/her/their child and give it to their parents upon birth. The surrogacy laws are mentioned in Section 60H(2) of the Family Law Act 1975. It includes the rights and responsibilities of both the surrogate and the actual parents of the child.

7. Paternity Disputes

Although, in most cases, it is still considered that the mothers are prioritised when it comes to the custody of a child, this is simply untrue. The Family Law Act has made sure that none of the parents is given priority based on gender, as the law has always been gender-neutral. 

When it comes to paternity disputes, it is essential to understand that it is not sufficient to provide a DNA test as proof that a man is not the father of a child to cancel child support. You need a court order that states the cancellation of child support. Therefore, the court will have to be involved in the process regardless of any results from the DNA testing or whether all parties are willing to participate in them.

Role of Family Law In Australia

Australian Family Law plays a significant role in maintaining law and order in the country. It helps individuals to solve the issues within family relationships through legal help. These laws often encourage people to resolve disputes and problems without going to court. The Australian Government offers various services and information to assist people with family issues.

The support fact sheet and family law services have information on where to access family relationships, legal and family violence services, alternative dispute resolution, and services for people’s well-being. If you cannot solve your disputes even after attending the mediation, you can apply to the courts to make a final decision.

How Family Law Act 1975 Function in Australia?

Family laws in Australia are designed to resolve people’s issues. These laws have a proper way of functioning that starts with the legislation. Family Law Act 1975 is the foundation of the problems related to marriage, divorce, child custody, and property settlement. Many amendments have taken place to this act over the years to adjust it according to the needs of people.

Cases related to family law are dealt with in the Federal Circuit and Family Court of Australia. But before a case is presented in court, the family can resolve their issue outside the court and make peace with each other’s condition. When a family fails to fix their problem, it is presented to the court to make a final decision.

Closing Insights

Family Law Act 1975 is the governing law in Australia that solves issues among families and de facto couples. It covers almost all the aspects of the life of a family, such as parenting disputes, marriage, divorce, surrogacy, child adoption, and property settlement. The importance of hiring a competent family lawyer is undeniable during a family dispute.

Aussie Legal Partners is a renowned law firm with a team of professional and skilled family lawyers. Our family lawyers understand the sensitivity of issues related to a family. Hence, they offer personalised solutions to your problems and show great empathy during tough times. Book a free consultation with our family lawyer to discuss your case and get advice that matches your interests.

FAQs

What is family law in Australia?

Family laws are rules and regulations designed to run the family system in a legal and civilised manner. Australian family law is governed under the Family Act 1975, which covers all the legal prospects of family law.

Which divorce law is currently applicable in Australia?

Currently, “no-fault” divorce is implemented in Australia. According to this rule, a spouse doesn’t have to prove that the other partner is at fault to get a divorce.

Do mothers get priority in child custody cases?

Australian laws don’t prioritise a parent during child custody because of gender. These laws are known to be gender-neutral and fair. A father gets an equal opportunity to get a child’s custody. However, the decision is made in the best interest of children.