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Introductory Notes

Law Notes > Family Law Notes

This is an extract of our Introductory document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Family Law Introduction

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When we are talking about family law we are talking about domestic relationships. Common reasons for disputes: money, children (parenting disputes), violence and protection from violence. There is not just one statute to govern all family law disputes. The Family Law Act 1975 is the principal piece of Federal legislation (we do not need regulations and rules for our purposes). Family Court Australia is the main federal court in Australia.

History

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Early 19th century UK: Family law was not administered by state courts. It was dealt with in church courts and judges were trained in cannon law. A church law could decree an order of nullity (like a divorce). This meant you could live apart without sin. It was a system that depended on proof of fault. You could get a divorce by private act of parliament - the theory was that parliament could do what it wanted because it was sovereign, even when the church courts did not accept divorce. Matrimonial Causes Act 1857 (UK), was important because for the first time jurisdiction was taken away from church courts and given to state courts. Church courts were limited to internal matters. A new remedy was given - judicial divorce (rather than having to get one from parliament). But the same fault based doctrine continued - if you are sick of each other this is irrelevant. There had to be an innocent party and guilty party. Adultery was an initial ground but then other misbehaviour types like desertion or cruelty etc were accepted. It was fault based remedies. Married Women's Property Act 1870. Overturned but a system of separate property so that when she remarried she could keep her property. Marriage itself did not have any automatic property rights.

Australia's constitution

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Pre 1960s in Australia, see s 51 of the Constitution. There were powers for marriage and divorce but these powers were not used straight away after federation. Thus there was state family law till the 1960s. Each state had a marriage act and a matrimonial causes act. The Marriage Act would tell you about who could get married and the ceremony aspects. Matrimonial Causes Act was about divorce but these grounds differed between states. The Federal government decided to get involved using its' powers in the constitution. A package of legislation is introduced: Marriage Act 1961 and Matrimonial Causes Act

1959. This is now Cth law. The Marriage Act 1961 has not really changed to this day. But the Matrimonial Causes Act 1959 made divorce and related issues a federal concern, at this stage there was no intent to set up a special federal court to apply this law and so they vested federal jurisdiction to state supreme courts, it was still predominantly fault based procedure and there were 14 grounds and almost all of them required spouse misbehaviour like desertion, adultery or violence (the couple of exceptions to fault based caused major arguments and led to a parliament conscience vote - where they both wanted to separate but only after 5 years of separation or one spouse became mentally ill), it didn't just deal with divorce or nullity (for void marriages) but also money, property, kids and personal protection (but there was a pre-condition that the claim had to be attached to a claim for principal relief like divorce or nullity). This was replaced by the Family Law Act 1975 (FLA):

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