Australian family law
Australian family law is principally found in the federal Family Law Act 1975 as well as in other laws and the common law and laws of equity, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the Federal Circuit Court of Australia, Family Court of Australia or the Family Court of Western Australia depending on the location and complexity of the matter. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51 and of the Constitution of Australia and internationally by marriage law and conventions, such as the Hague Convention on Marriages.
Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the Family Law Act 1975, which established no-fault divorce in Australia. Since 1975, the only ground for divorce has been irretrievable breakdown of marriage, evidenced by a twelve-month separation. However, a residual "fault" element remains in relation to child custody and property settlement issues. The federal Family Law Act 1975 covers divorce, children's orders, property division, spousal maintenance and related matters.
Annulment
Under the Family Law Act 1975, a decree of nullity can be made if a marriage is void. What constitutes a void marriage is determined by section 23 of the Marriage Act 1961 and is "one that is void and invalid from its beginning. It is as though the marriage never existed and it requires no formality to terminate." The distinction that existed before 1975 between void and voidable marriages no longer exists. In addition, the 1975 Act also abolished the legal concept of non-consummation of marriage as a ground for annulment, so that a divorce application would need to be made.A marriage is void if:
- one or both of the parties were already married at the time
- the parties are in a prohibited relationship
- the parties did not comply with the marriage laws in the jurisdiction where they were married
- one or both of the parties were under-age and did not have the necessary approvals, or
- one or both of the parties were forced into the marriage.
Divorce
No-fault divorce
Australia has no-fault divorce with the only ground for divorce being a claim of an irretrievable breakdown of marriage, evidenced by a twelve-month separation. Sometimes the couple may still be living together in the same home and be considered separated. If that is the case for any part of the twelve months before filing the application.A sole applicant will need to file an affidavit providing evidence that there has been such separation. As well as an affidavit from an independent third party.
For a joint application both parties should file an affidavit, a third party affadavit is NOT needed in this case.
If the parties have reconciled for 3 months or more, then the 12-month qualification period has to start anew.
Though the Commonwealth had the power since federation in 1901 to make laws affecting divorce and related matters such as custody and maintenance, it did not enact uniform national laws until 1961, when the Matrimonial Causes Act 1961 came into operation. The Act continued the fault-based system operating under state authority. Under the Commonwealth law a spouse had to establish one of the 14 grounds for divorce set out in the Act, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity. In reality, the system was very expensive and humiliating for the spouses, necessitating appointment of barristers, often private detectives, collection of evidence, obtaining witness statements, photographs and hotel receipts, etc. Failure to prove a spouse's guilt or wrongdoing would result in a judge refusing to grant a divorce. The Matrimonial Causes Act 1961 was replaced by no-fault divorce system of the Family Law Act 1975.
Divorce application
Either party to a marriage may apply to the Family Court of Australia for a divorce, or both parties may apply jointly. However, an application for divorce cannot be filed before the expiration of at least two years since the marriage had been entered into. The application can be lodged online or using a hard copy form. A fee is payable. If the application is made by one spouse, the divorce documents must be served on the other spouse, at least 28 days before the court hearing if the spouse is in Australia or 42 days if overseas. The spouse can challenge the application in a "response", claiming, for example, that the timeframes set out in the Act have not been satisfied, or that the applicant is not an Australian citizen or resident, etc. The response must also be served on the applicant and filed in court. If both spouses agree to divorce a "joint application" is filed, which does not need to be served and no response can be made.An application for divorce can be made in Australia if either spouse:
- regards Australia as their home and intends to live indefinitely in Australia and is an Australian citizen or resident, or
- is an Australian citizen by birth or descent or is a naturalised Australian citizen, or
- ordinarily lives in Australia and has done so for 12 months immediately before filing for divorce.
If there are children of the marriage aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. A child of the marriage includes:
- any child of either spouse, including a child born before the marriage or after separation,
- any child adopted by the spouses or either of them, or
- any child who was treated as a member of the family prior to the final separation; for example, a step-child or foster child.
After the divorce is finalised, each party can apply to the Family Court of Australia for a proof of divorce certificate.
De facto couples
Since 1 March 2009, in all states or territories except Western Australia, matters arising from separations of de facto relationships, such as child custody and property rights, are also covered by the Family Law Act under powers conferred to the Commonwealth by five of the states. Since 2009, the definition of "de facto couple" under the federal Act has included same-sex couples and applies throughout Australia, except Western Australia. A de facto couple must cohabit for a minimum of two years for the Family Law Act to apply, unless if they have a child together, have registered the relationship, or have made significant contributions to the relationship. Parties to a de facto relationship have only two years after separation in which to file for property and/or spousal maintenance in the Family Court.Before March 2009, state and territory laws applied to de facto relationships. The names for de facto and similar relationships in each state and territory were/are as follows:
| State/territory | Name | Law |
| New South Wales/Norfolk Island | "Domestic relationship", encompassing "de facto relationships" and "close personal relationships" | Before 1 March 2009, Property Act 1984. Since July 1, 2016 all NSW laws also apply to the approximately 2,000 residents on Norfolk Island, under both the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016 - because the Norfolk Legislative Assembly was abolished on 1 July 2015. |
| Victoria | "Domestic relationship", defined to mean "de facto relationships" | Before 1 March 2009,. Property Law Act 1958 Part IX has now been repealed effective 1 December 2008, now encompassed in the Relationships Act 2008. |
| Queensland | "De facto relationship" | Before 1 March 2009, Property Law Act 1974 |
| South Australia | "Close personal relationship" | Before 1 July 2010, Domestic Partners Property Act 1996 |
| Western Australia | "De facto relationship" | Family Court Act 1997, Part 5A |
| Tasmania | "Personal relationship", encompassing "significant relationships" and "caring relationships" | Before 1 March 2009, Relationships Act 2003 |
| Australian Capital Territory | "Domestic relationship" and "domestic partnership" | Before 1 March 2009, Domestic Relationships Act 1994, Legislation Act 2001 s 169 |
| Northern Territory | "De facto relationship" | Before 1 March 2009, De Facto Relationships Act 1991 |
Recognition outside Australia
Because of how the power from state or territory to federal jurisdiction was conferred, de facto couples outside Australia are not covered by the Family Law Act. This is because there must be a nexus between the de facto couple and a state or territory, as the law can only be applied within a state or territory. If a de facto couple moves out of an Australian state or territory they do not take the state or territory with them so the law cannot apply to them. The legal status and rights and obligations of the de facto or unmarried couple would then be recognised by the country's laws of where they are ordinarily resident. See the section on Family Court of Australia for further explanation on jurisdiction on de facto relationships. This is unlike marriage, which is legally recognised internationally outside of the country of marriage.Laws affecting children
The family law framework also deals with parenting arrangements to ensure the best interests of children, especially in circumstances where they are at risk or where their parents or carers are separating. Although child protection is primarily dealt with on a state and territory basis, under state and territory legislation, parenting arrangements could also be dealt with under the federal Family Law Act 1975.A government-administered child support scheme enables parents to reach private agreements, or to register with the Child Support Agency Australia, which may require one parent to make payments to the other, depending on the division of care and on each parent's income, among other factors. Since 1989 child support has been assessed under the Child Support Act 1989, administered by Child Support Agency Australia.
Australian domestic law also enacts some of Australia's obligations under international law, such as the Hague Convention on the Civil Aspects of International Child Abduction, which is dealt with in the Family Law Act 1975.
On 22 May 2006, the Family Law Act 1975 was amended by the Family Law Amendment Act 2006, which applies to any court matters involving children that were in court on or after 1 July 2006. The primary object of this law is to ensure that courts always have the "best interests of the child" as the paramount consideration. An object of this law is to ensure that the best interests of children are met by ensuring that "children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child". Many however argue that such an arrangement actually works against achieving this, and today continue to push for further reform. In the last decade not one Australian father has been given equal parenting access in any case reported on the Austlii website. Instead judges applied the McInstosh-Chisholm doctrine that sought to limit time children spend with children. This approach has now been debunked by academics, even though never challenged by any family court judge.