Courses Arts Legal 1218166860 2008 Legal Studies Assessment Task

How successfully does the law protect parties to both
marriages and de facto relationships when such relationships

dissolve?
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, whereas the NSW De Facto
Relationships Act 1984 recognises de-facto relationships as two adults living
together as a couple and are not married. The law makes provision for
protection regarding property division, maintenance and care of children on
dissolution of both types of relationship. The laws regarding dissolution are:
Family Law Act 1975 (Cth) and Property (Relationships) Act 1984 (NSW).
The Family Law Act 1975 (Cth) 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. When the
court has decided that an application for divorce is successful, it grants a
decree nisi, which is an interim order that states that the couple may not
remarry until the decree absolute is granted one month later. According to
the Property (Relationships) Act 1984 (NSW) there is no formal requirement
needed to dissolve the de-facto relationship.
Property settlements are often made by agreements between the parties,

which saves the cost of going to court. Property that can be dealt by the
court includes: property purchased during the marriage, superannuation,
gifts and inheritances received by either party, property owned by the parties
before the marriage, assets and goodwill that a party has built up in a
business, compensation awards, lottery winnings and redundancy packages.
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. The Property
(Relationships) Act gives de-facto couples property rights similar to those of
married couples, and it adopts a definition of property similar to that in the
Family Law Act. 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. The spouse maintenance
provisions of the Family Law Act are gender neutral- that is; either a man or
woman may get maintenance from their former spouse provided they can
establish the need for support and the ability of the party to pay. 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. In a de- facto relationship, either partner can claim
spouse maintenance from the other within two years of the end of the
relationship. A de-facto partner has a right to maintenance only when they
cannot undertake their own support adequately because they are caring for a
child of the relationship who is under 12 or their earning capacity was
reduced as a result of the relationship.
Under the Family Law Reform Act 1995 (CTH), 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, whether they
are married, divorced, separated or remarried. 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. The family
court made decisions about maintenance until 1989 but two problems
emerged: the amount of maintenance ordered by the court was often much
lower than the real cost and most parents avoided paying child maintenance.
As a result of this many single parents and children were living in poverty as
they did not receive enough child maintenance in order to survive. The child
Support Agency can collect maintenance from parents in a number of ways
including: deduction from wages, interception of tax refund cheques,
withholding and diverting monies owed to the parent paying maintenance
and seizure and sale of assets.
Until the 1999 amendments to the Property (Relationships) Act 1984 (NSW)
homosexual, or same-sex, couples were not recognised by the law at all.
Under the amendments, same sex couples in NSW have the same rights and
responsibilities as other de-facto couples, including rights to maintenance,
property division, inheritance and decisions during illness. The Federal
Government has no power under the Constitution to make laws about de
facto relationships. While laws about marriage and divorce are federal law,
the law about de facto relationships is state law and is different in all states.
There are a number of differences in the law regarding marriage and divorce
and in the law regarding de facto relationships, particularly in the areas of
property allocation, spousal maintenance and adoption.
There is less protection available for parties in de facto relationships than

parties in a marriage. Children in both de-facto relationships and marriages
are treated equally in this sort of case as mentioned above their interests are
taken into consideration. De-facto relationships should get more protection
from the laws equalling it out with marriages, making sure that the parties
are satisfied from the results of the dissolution.
Words: 1298
By: Rainee Naidu
Bibliography:
Websites:
 http://www.familycourt.gov.au/
 http://www.weblaw.edu.au/weblaw/display_page.phtml?
WebLaw_Page=Family+Law
 http://www.aph.gov.au/library/intguide/law/famlaw.htm
 http://www.femail.com.au/property-settlement-calculator-aussie-
legal.htm
 http://www.legalonline.vic.gov.au/wps/wcm/connect/Legalonline/
Home/Relationships/Property+Settlement/
 http://www.law4u.com.au/cgi-bin/contents_frameset.asp?
region_id=2&topic_id=9&title=Property+settlements
 http://www.lawaccess.nsw.gov.au/HomePageResults.asp?
term=HomePage&subbrowse=+Divorce&browse=Family+
+Law+and+Relationships
Books:
 Legal studies Heinemann Textbook 3rd edition

 The Law hand book 10th edition
 Family Law, 2nd edititon, Nutshell

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Courses Arts Legal 1218166860 2008 Legal Studies Assessment Task

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How successfully does the law protect parties to both

marriages and de facto relationships when such relationships

Society places laws upon different family arrangements to ensure that

Property settlements are often made by agreements between the parties,

All parents are expected to contribute to the financial support of their

There is less protection available for parties in de facto relationships than

By: Rainee Naidu

 Legal studies Heinemann Textbook 3rd edition

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