Legal Studies Essay

How successfully does the law protect parties to both marriages and de facto relationships when such relationships dissolve?

Society places laws upon different family arrangements to ensure that members of all families have legal protection. Marriage is the union of man and women to become husband and wife, whereas the NSW De Facto Relationships Act 1984 recognises de-facto relationships as two adults living together as a couple and are not married. The law makes provision for protection regarding property division, maintenance and care of children on dissolution of both types of relationship. The laws regarding dissolution are: Family Law Act 1975 (Cth) and Property (Relationships) Act 1984 (NSW).

The Family Law Act 1975 (Cth) is a statute that governs divorce law. Under this act there is only one ground for divorce and this is to prove that there has been an irretrievable breakdown of marriage, which means that the marriage has broken down to such an extent that it cannot be put back together. Divorce breaks the legal bonds of marriage between couples. It does not deal with other matters such as: maintenance, the division of property, where children will live and who will be responsible for children’s care. To prove this couples must live separately and a part for a period of 12 months before applying for divorce. Separately and apart can be defined by five different criteria’s; Intention, Separation under one roof, The ‘Kiss and make up’ clause, Marriages of less than two years and Decree nisi and decree absolute. For a couple to be living separately and apart there must be the intention on the part of at least one of the parties to the marriage to end the relationship. Under the Family Law Act, couples who are separates may try living together again for one period of up to three months. When the court has decided that an application for divorce is successful, it grants a decree nisi, which is an interim order that states that the couple may not remarry until the decree absolute is granted one month later. According to the Property (Relationships) Act 1984 (NSW) there is no formal requirement needed to dissolve the de-facto relationship.

Property settlements are often made by agreements between the parties, which saves the cost of going to court. Property that can be dealt by the court includes: property purchased during the marriage, superannuation, gifts and inheritances received by either party, property owned by the parties before the marriage, assets and goodwill that a party has built up in a business, compensation awards, lottery winnings and redundancy packages. When deciding on how to divide the property after the end of a marriage the court will consider four things: the financial contribution of each party, the non-financial contribution of each party, the future needs and obligations of each party and whether or not there is a pre-nuptial agreement. The Property (Relationships) Act gives de-facto couples property rights similar to those of married couples, and it adopts a definition of property similar to that in the Family Law Act. Under the Property (Relationships) Act, the court should divide the property in a way that is just and equitable, based on the partners contributions to the property, both financial and non-financial, and their contributions as homemaker and parent to the welfare of the family. For example in the Theodoropoulos v Theodosiou (1996) case one party got a greater share of the property based on their need for it in the future.

After a marriage breaks down, the Family court may make two kinds of maintenance orders; for one spouse to maintain the other and/ or for one parent to pay maintenance to the parent with whom the child will be residing. Spousal maintenance is not often awarded by the court and only if one party is unable to support him/herself. The spouse maintenance provisions of the Family Law Act are gender neutral- that is; either a man or woman may get

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