Australian Family Law Essay

1970 words - 8 pages

In this day and age there are many variations of what constitutes a couple or family in comparison to many years ago. Long ago the idea of a ‘nuclear family’ was considered the norm; it consisted of the conventional husband, wife and children . But as our society progressed through the years this definition became less conventional and criticisms were made, this definition of ‘family’ did not account for gay unions, soul parents nor did it acknowledge the prevalence of extended family. The definition of family has changed over time, as have the socially defined roles of mothers and fathers. Within these varied family units, situations occur in which divorces and separations take place and a lot of the times these tricky situations may involve children, which can make an already tricky situation even more problematic. There are pieces of legislation which are in place which aim to protect the best interests of a child during the time their parents are going through divorce but sometimes these avenues can be more problematic and ultimately destroy unions whereas other avenues of dispute resolution such as mediation, albeit with its own criticisms, helps to keep relationships afoot in that it provides an opportunity for peaceful and mutual agreements to be made in a more laid back environment.

In the Commonwealth of Australia’s Constitution Act s 51, powers of the Commonwealth Parliament to legislate on family law subjects is laid out, it states:
“The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxi) Marriage: (xxii) Divorce and matrimonial causes; and relation thereto, parental rights and the custody and guardianship of infants”.
Under this provision of their powers, the Commonwealth has defined the concept of marriage in the Marriage Act 1961 (Cth) as a ‘voluntary union by a man and a woman to the exclusion of everyone else voluntarily entered into for life’ . This historical definition was derived from the case of Hyde v Hyde and Woodmansee (1866) and denotes monogamous, heterosexual relationships; this restriction on the term ‘marriage’ has prevented the parliament from legislating in respect to de-facto and homosexual couples. However the Victorian Parliament has developed the Relationships Act 2008 (Vic) which recognises and registers the relationships between two people who aren’t married irrespective of ones gender.
In the year 2010 there where 50, 240 divorces granted in Australia alone . Under the Family Law Act (FLA) a divorce can not be filed within the first two years of the life of the marriage without court permission, unless a certificate is filed with the application. This certificate would state the two individuals have considered reconciling with a marriage counsellor or an appropriate officer of the family court. There are three main grounds for divorce, which are listed under sections 48 to 50 of the FLA; it is...

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