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Family Law Handbook 26 Family law Janet Loughman Women’s Legal Services NSW Mari Vagg Women’s Legal Services NSW Carolyn Jones Women’s Legal Services NSW Natalie Neumann Women’s Legal Services NSW Ruth Pilkinton Legal Aid NSW Contents [26.10] Marriage, separation [26.460] Property and divorce [26.480] Agreements between de facto partners [26.20] Marriage [26.500] Other issues in de facto [26.110] Divorce relationships [26.240] Property and [26.540] Children maintenance – marriage [26.550] Rights and responsibilities under [26.240] Legislation the Act [26.260] Property division after marriage [26.590] If parents can reach agreement breakdown [26.620] Family dispute resolution [26.300] Agreements and consent orders [26.640] Parenting orders [26.320] Maintenance [26.670] Family violence [26.680] Applications for parenting orders [26.400] Property and [26.690] Enforcing parenting orders maintenance – de facto [26.700] Variation of parenting orders relationships [26.720] Relocation [26.730] Abduction of children [26.400] Legislation [26.440] Maintenance Law Handbook_12e CH26.indd 703 14/5/12 10:27:44 AM 704 The Law Handbook [26.10] Marriage, separation and divorce The law regulating marriage in Australia is the Separation and divorce, including property federal Marriage Act 1961. The Act sets out distribution and issues concerning children, is who can marry, who can perform a marriage covered by the federal Family Law Act 1975. ceremony, and how, where and when marri­ age ceremonies can be performed. Marriage [26.20] Who may marry? Religious celebrants are authorised under the Age limits rules of the particular religion. Both men and women can marry at 18. Fees People under 18 The Registry of Births, Deaths and Marriages charges between $337 and $430, depending on In special circumstances, a person who is under the time and day of the week of the ceremony. 18 but over 16 may marry with the authorisa­ Private civil celebrants also charge fees. tion of the court. The consent of the person’s Celebrants of religious marriages usually parents or guardians is also generally required, receive a donation. but the court may dispense with this in some cases (Marriage Act ss.12, 13). Time and place Same-sex relationships A marriage can take place anywhere and at any time as long as basic legal requirements are The law only recognises marriage between met. people of different sexes. Notice of intention to marry The law dealing with the relationships of lesbians and A notice of intention to marry must be comp­ gay men is discussed in chapter 37, Same-sex couples leted and given to the celebrant at least one and their families. month before the marriage. Notice forms are available from any Registry of Births, Deaths and Marriages. [26.30] Procedure Both parties in the presence of an authorised Australian law recognises civil, religious and celebrant or other ‘approved person’ (such as a foreign marriages. justice of the peace or a solicitor) must sign the Marriage celebrants notice. A person who performs a marriage ceremony is Documents required called the marriage celebrant. The marriage celebrant must also be given: Civil marriages can be conducted by: • the parties’ birth certificates or passports • a celebrant from the Registry of Births, • statutory declarations as to the parties’ Deaths and Marriages current marital status • a private celebrant (these are listed in the • if one of the parties has been married before, telephone directory). either: Law Handbook_12e CH26.indd 704 14/5/12 10:27:44 AM 26 Family law 705 – a final divorce order (previously called a • they are made in the presence of consular or decree absolute), or diplomatic staff from the foreign country – the former spouse’s death certificate • they observe Australian laws about age and (s.42(10)). prohibited relationships (s.55). Fee Prohibited relationships There is a notice of intended marriage fee of A prohibited relationship is a relationship $147. between: • a brother and sister (including half-brothers [26.40] Marriage certificates and half­sisters) A marriage certificate is proof of the marriage. • a person and their ancestor or descen­ They are required for various purposes, dant, including adopted as well as natural including: children. • obtaining passports and visas Cousins can marry. • proving next of kin status for probate Polygamous marriages purposes Polygamous marriages (marriages that permit a • changing the name on bank accounts, if the person to have more than one husband or wife) person changed their name are not valid if made in Australia (ss.23, 23B). • in any application by a married person However, a party to a polygamous marriage under the Family Law Act. made outside Australia (for example, in an Marriage certificates are prepared on the day of Islamic country where it is legal) may make the marriage by the marriage celebrant. applications to the Family Court, such as for Signatures required divorce, property settlement, parenting orders The certificate is signed by: or injunctions (Family Law Act s.6). • the husband and wife • the celebrant Change of name • two witnesses, who must be 18 or over. There is no legal requirement that either party should change their name on marriage. Although women often Lodging the certificate adopt a new surname, they may choose to continue The certificate must be forwarded to the using their own name after marriage, or hyphenate Registry of Births, Deaths and Marriages names with their spouse. It is entirely up to the woman within 14 days (Marriage Act s.50(4)). what she chooses to call herself. Copies of the marriage certificate Three copies of the marriage certificate are usually [26.60] Property and debts made immediately after the ceremony so that the Married people are treated as individuals if they parties can have their own copy. Marriage certificates buy property or incur debts in their sole name. should be kept in a safe place with birth certificates, wills and other important documents. Property owned before marriage Property belonging to a person before marriage remains their individual property after the [26.50] Foreign marriages marriage ceremony. This includes furniture, Marriages performed overseas bank accounts, vehicles and household goods. Most marriages performed overseas are recog­ A person may transfer property from their nised in Australia as valid marriages if they were sole name to joint ownership with their spouse made according to the other country’s laws (for without incurring stamp duty on the transfer. exceptions, see Marriage Act s.88D). However, there is no legal requirement to transfer property into joint names. Marriages performed in Australia under foreign law Property acquired after marriage Marriages performed in Australia according to Property acquired while a person is married another country’s laws are generally valid if: generally belongs to the person in whose name Law Handbook_12e CH26.indd 705 14/5/12 10:27:44 AM 706 The Law Handbook it was bought, or who paid for it (but see What When abortion is legal in NSW property is considered? at [26.280]). Since 1971, the law in NSW is that abortion is Jointly owned property legally available under certain conditions. It is lawful for a medical practitioner to terminate a Married people commonly buy homes, units or pregnancy if they are satisfied that it is neces­ land in their joint names. sary to prevent serious damage to a woman’s Disposal of jointly owned property physical or mental health. Neither party can dispose of jointly owned The woman’s social and economic situa­ property without the other’s consent, even if tion, as well as medical considerations, should one party provided the finance. be taken into account. This means that if a For more about the law of owning property woman believes that in her circumstances at the with another person (as joint tenants or tenants time she could not cope with having a baby and in common), see chapter 29, Housing. bringing up a child, she may lawfully terminate Loan security the pregnancy. Property belonging to either or both parties Abortion services may be used as security for either or both for a In NSW, abortion services are offered mortgage or loan. by a number of health institutions and Debts practitioners. Debts acquired in one party’s name are the Specialised clinics responsibility of that person. The person’s There are clinics set up to provide counselling, husband or wife has no legal responsibility for pregnancy tests and terminations. Anything the debt. told to them is confidential. A referral from a doctor is not required. If the marriage breaks down Most clinics offer a choice of surgical If the marriage breaks down, a court can, under abortion up to the twelfth week of pregnancy the Family Law Act, look behind the parties’ legal or medical abortion if a woman is less than ownership of property and make orders to transfer nine weeks pregnant. Some clinics also provide property or debt from one spouse to the other on the surgical abortions after 12 weeks. basis of what is fair in the circumstances. Medical practitioners Some doctors are prepared, after examination, [26.70] Sexual relations to make a recommendation to a gynaecologist, Sexual offences within marriage who performs the operation in a local hospital. Marriage does not give a husband or wife a legal Such recommendations are common, and have right to sexual intercourse with their spouse. no legal repercussions. A husband or wife can be convicted of any of Medicare benefits are available, as for other the categories of sexual assault on their spouse medical services. (Crimes Act 1900 s.61T – see chapter 38, Public hospitals Sexual offences). Some public hospitals carry out abortions. The requirements about psychiatric and other refer­ Contraception rals vary from one hospital to another.
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