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Family Law

Family Law. Marriage. A few points to note. Privacy issues with sharing of ‘stories’ Church viewpoint different from legal view that we are investigating Weebly address http://year12legalstudies.weebly.com Resources and assessment all on the weebly site

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Family Law

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  1. Family Law Marriage

  2. A few points to note • Privacy issues with sharing of ‘stories’ • Church viewpoint different from legal view that we are investigating • Weebly address http://year12legalstudies.weebly.com • Resources and assessment all on the weebly site • THIS YEAR IS SUMMATIVE, THEREFORE WORK HARD!!!

  3. Family Law • How would you define the word ‘family’? Please add you response to the forum on the weebly site. (please note that we will have one topic for discussion each week and it is expected that you will add to the forum) • Has the concept of Family changed?

  4. A family is defined by the ABS as two or more persons, one of whom is at least 15 years of age, who are related by blood, marriage (registered or de facto), adoption, step or fostering, and who are usually resident in the same household. Each separately identified couple relationship, lone parent-child relationship or other blood relationship forms the basis of a family. Some households contain more than one family. Non-related persons living in the same household are not counted as family members (unless under 15 years of age). • a group consisting of two parents and their children living together as a unit (Oxford Dictionary)

  5. What Do You Know? • What percentage of Australian’s never marry? • What percentage of couples live together before marrying? • Is the divorce rate higher or lower for couples who live together before marrying? • What is the median duration of a marriage to divorce? • Who file for divorce more? Men or Women? • Which state has the highest divorce rate? • Which state has the highest rate of second divorces? • Approximately what percentage of marriages end in divorce? • What is the median age for marriage for men and women? • What percentage of divorces end up being settled by a judge in court?

  6. What Do You Know? Answers • What percentage of Australian’s never marry? 29% • What percentage of couples live together before marrying? 74% • Is the divorce rate higher or lower for couples who live together before marrying? Higher • What is the median duration of a marriage to divorce? 12.5 years to divorce and 8.8yrs to separation • Who file for divorce more? Men or Women? Women 35%, Men 37%, Joint 38% (but interestingly 65% of separations are initiated by women and they think about it for approx 2 yrs prior)

  7. Which state has the highest divorce rate? NSW, then Vic then Queensland? • Which state has the highest rate of second divorces? Qld • Approximately what percentage of marriages end in divorce? 33% • What is the median age for marriage for men and women? 29.2 yrs for women and 31.4yrs for men • What percentage of divorces end up being settled by a judge in court? 3-4%

  8. Interesting Facts • In the past two decades, Australians started to marry less and divorce more. • However the divorce rate has been decreasing since 2001 but was as its highest in the late 1970’s. • The number of joint application divorces has risen in the last few years. • The average age for divorce – Men 40-44 Women 35-39. • 1/3 of today’s children are born outside of a traditional marriage. • 2/3 of grooms are older than their brides, and ¼ of brides are older than their grooms.

  9. Family law - chapter 5 • 1866 case of Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, gave the first definition of marriage. Lord Penzance gave the definition. • It’s now been transferred to legislation • 1. • 2.

  10. Four elements of marriage: 1. 2. 3. 4. From the marriage Act 1961 (Cth) Section 46 (1)

  11. Man and Woman • 1971 – Corbett v Corbett (otherwise Ashley) (read page 58 Q1-3)

  12. 4 definitions came from the corbett case 1. transsexual 2. transvestites 3. Hermaphrodite 4. Homosexual (watch Clickview Girls will be Girls)

  13. Re Kevin (2001) Fam CA 1074 (validity of marriage of transsexuals) case (read pg 59 Q1-4) • Consider the impact changes eg birth certificates

  14. To the exclusion of all others • Monogamous Relationships • Marriages from OS with more than one spouse?

  15. Polygyny • polyandry

  16. Polygamy • Bigamy • Bigamy is a crime under sec 360 of the Criminal Code 1899 (QLD) and is an offence under the sec 94 of the Marriage Act 1961 (Cth)

  17. Voluntarily entered into • Sec 23B of the Marriage Act 1961 (Cth) requires that there be genuine consent. • A marriage is void if there was no real consent due to: 1. Duress (read Case study page 62 Q1-3)

  18. 2. Fraud (read case study page 63, Q 1-5) What about pregnancy?

  19. 3. Mistake (read hypothetical pg 64 and interesting article weebly) 4. Mental Capacity Interesting Case – AK & NC (2003) FC 1006. Although the wife had dementia, the court determined that she knew the husband and had some understanding of the ceremony and was therefore valid

  20. For Life • Consider the fact that the divorce rate is so high, should ‘for life’ continue to be in the definition?

  21. Interesting Points • A Notice of Intention to Marry must be completed and given to an authorised celebrant not more than 6 months and not less than one month before the wedding. This is from the registry of Births, Deaths and Marriages. Therefore marriages in Australia can not be on the spur of the moment, unless you fly to Vagas!! • On the day of the marriage, two certificates are prepared, one for the couple and one to give to the registry. • These must be signed by the couple, the celebrant and two witnesses. • There is no legal requirement to be engaged nor to change their surnames, however historically women change their names to the husbands surname.

  22. Who can Marry? • Marriageable age: (read case study pg 66 Q1-3, investigate case ex parte willis (1997) FLC 92-725)

  23. Not married to someone else • Prohibited relationships • Genuine consent

  24. Financial Agreements • This will be discussed further in the dissolution section. • The Family Law Act 1975 (Cth) Part VIII A allows couples to make an agreement about property and financial resources if the marriage breaks down. • They can be created before, during or after a marriage break down. • Do you think that financial agreements encourage the idea that a marriage is not for life?

  25. Review Questions Pg 67 • Please complete review questions pg 67 Q1-13

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