FAMILY LAW

tch?v=4-94JhLEiN0  The role of the family in providing for the physical, financial and emotional needs of its members is regarded as crucial to the welfare of society at large. Any erosion of the institution of marriage is seen by many as a threat to society.  But the traditional image of family is under challenge. The number of one-parent families has increased. More couples are living together without entering into a marriage.  Same-sex couples are demanding that their unions be recognised as valid marriages. Some fathers believe the law actively discriminates against them.  In this area of study you will be asked to consider if we can be confident that the law has the capacity to address the challenges.

Key knowledge:

Is this a family?

What about this?

FAMILIES — AUSTRALIAN-STYLE  Most of us have an idea of what constitutes a family based on our own individual situation and life experience. Traditionally, the word ‘family’ has been used to describe a group comprising married parents and their children. This version of family is also known as a ‘nuclear family’.  Families, however, now come in all shapes and sizes. Take, for instance, Louise and Jenny, a same-sex couple with two children to the same sperm donor. The children know they have two mothers. The children also have regular contact with their donor dad. To use another example, 12-year-old Patrick spends one week living with his father and grandmother and one week with his mother. His mother has a six-month-old baby with her new partner, Jason.  Another family, Adem and Huri, have a marriage that was arranged by their parents. They have been happily married for four years with a new baby and say their life is working out perfectly.

What makes a marriage valid?  There are many different cultural groups in Australia, each with its own marriage customs and rituals. The primary purpose of the Marriage Act 1961 is to set strict legal requirements for a valid marriage. If these requirements are not met, the law will regard the marriage to be void.

Definition of marriage  The common law definition of marriage was stated in the case of Hyde v. Hyde and Woodmansee as “the voluntary union for life of one many and one woman to the exclusion of all others”.

Requirements for a valid marriage  In 2004, the Marriage Act was amended to formally define marriage as, ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.  Three legal requirements flow from this definition. A marriage must be:  heterosexual  monogamous  voluntary.  Other legal requirements imposed by the Marriage Act include:  the parties must be of a marriageable age  the parties must not come within a prohibited relationship  the parties must follow the procedure specified by the Act prior to the marriage ceremony.

Heterosexual union  The words ‘a man and a woman’ in the definition of marriage mean Australian marriages must be heterosexual.  Same-sex couples may take part in a commitment ceremony where they publicly make promises to each other.  They may exchange wedding rings, receive a certificate and merge their names by making an application to the Registry of Births, Deaths and Marriages for name changes. But the ceremony is symbolic as the ‘marriage’ is not legally recognised.  Same-sex marriage is lawful in a number of countries, including Canada and Spain.  As a general rule, Australia recognises marriages that have been contracted overseas if the marriage meets the lawful requirements of the particular country.  However, the Marriage Act was amended to provide that same-sex marriages validly contracted overseas are not recognised by Australian law.

Same sex marriage debate  1/s htm

Transsexual relationships  The requirement that marriage can only be between ‘a man and a woman’ has raised issues for transsexuals. A transsexual is a person who has the body of one sex but overwhelmingly identifies with the other sex. For example, a child may be registered at birth as a male but later feel that he is a female in the wrong body.  Can a person who is registered at birth as a female, but who undergoes surgery to remove female physical characteristics, validly marry a female? This question was considered in Re Kevin (Validity of marriage of transsexual) [2001] Fam CA 1074.

Is this a VALID MARRIAGE?  At birth, Kevin was identified and registered as a female. However, psychologically he always felt he was male. He resisted his mother's efforts to try to persuade him he was a girl. As an adult, Kevin had hormonal treatment and irreversible surgery. Socially, and at work, he was perceived and accepted as a man.  Kevin married Jennifer in 1999 and they conceived two children through the IVF process. The couple applied to the Family Court for a declaration that their marriage was valid. The trial judge considered a range of matters including Kevin's biological, psychological and physical characteristics at the time of marriage, and concluded Kevin to be a male person at the time of marriage. Therefore, the marriage was valid.

Monogamous marriage  The definition of marriage includes the words ‘to the exclusion of all others’. This requires marriage to be monogamous. A person can be married to only one person at a time. If one party to the marriage is already lawfully married and is a party to a further ‘marriage’, the crime of bigamy applies. A person found guilty of bigamy faces a maximum penalty of five years imprisonment. The second ‘marriage’ is considered to be void at law.

Question: should polygamy be allowed?

SHOULD POLYGAMY BE LEGAL?  Some religious leaders are calling for polygamy to be legal. The demand has gained momentum with the increase in the number of single female refugees who are young mothers. Religious leaders claim that it makes sense that these women ‘join’ an existing family, rather than struggle on their own.  Some new arrivals to Australia come from countries that allow polygamy. Experts have observed that women in polygamous relationships suffer emotionally and psychologically. They argue polygamy is not in keeping with mainstream Australian values and is contrary to all our attempts to achieve gender equality.

Voluntary consent  The inclusion of the words ‘voluntarily entered into’ in the definition of marriage means that both parties to the marriage must give true consent. Consent is not real where one party makes a mistake as to the identity of the other party, or where a party is incapable of understanding the nature of the marriage ceremony. A marriage that is forced will be regarded as void.

 In the case of Campani & Suyapto [2008] FamCA 1121, the court found that there was no real consent to the marriage because Mr Campani was mistaken as to the identity of Ms Suyapto at the time of the marriage. Ms Suyapto had fraudulently provided a false name and false details of her identity. Therefore, the court declared the marriage to be null and void.

Case: WAS SHE FORCED?  The Family Court was asked to decide whether or not there was duress in the Marriage of S [1980] FLC At the time of her arranged marriage, ‘S’ was aged 16 years. The ceremony was conducted according to the practices of the Egyptian Coptic Orthodox Church. Her parents maintained pressure on ‘S’ to marry, even though, right up until the ceremony, she resisted. She consented largely out of a sense of loyalty to her parents and younger sisters. Four days after the marriage she returned to her parents' home and went back to school. The marriage was never consummated. The court decided that the marriage was void as the girl's consent was obtained by duress.

Marriageable age  The marriageable age in Australia is 18 years. This applies equally to both males and females.  In exceptional circumstances, it is possible for a couple to marry even though one of the parties has attained the age of 16 years but has not yet reached 18 years. The law requires consent by the minor's parents or guardian as well as court consent. If the minor's parents or guardian unreasonably refuse to agree to the marriage it is possible for the court to dispense with their consent.

 The court hearing the case must decide whether or not the circumstances are unusual and exceptional enough to justify consenting to the marriage. Some factors that are likely to be considered by the court are:  the financial situation of the parties  the length of their relationship  the maturity of the parties  whether or not the parties have the support of their parents  pregnancy (though pregnancy by itself is not sufficient grounds).

Some parents persuade their daughters to marry while they are young in the belief this will help to preserve their religious and cultural traditions.

TOO YOUNG TO MARRY?  Department of Human Services & Brouker & Anor [2010] FamCA 742  In this case, the Family Court heard evidence from the Victorian Department of Human Services that a 14 year-old girl had missed school and was about to travel overseas to be married to another child. Under Australian law, the Marriage Act would prevent the proposed marriage from being performed. Therefore, the court ordered that the girl could not leave Australia and her parents were restrained from applying for a passport for her until she reached the marriageable age of 18 years.

Prohibited relationships  The law places restrictions on who can marry. A marriage will be void if the parties are within a prohibited relationship. The Marriage Act prohibits a marriage between a person and:  an ancestor (mother, father, grandfather, grandmother)  a descendant (son, daughter, grandson, granddaughter)  a brother and a sister, whether whole blood or half-blood.  It is possible to marry a cousin as this relationship is not prohibited. It is also possible for an aunt to marry her nephew or an uncle to marry his niece and for stepbrothers and sisters to marry. However, the law deems that an adopted child has the same relationship to his or her parents and siblings as a natural child even though they do not have a blood relationship.

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