The Family Law Act

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The Family Law Act 1975 (Cth) applies across Australia and establishes the only ground for divorce is that the marriage has broken down irretrievably. This act established the Family Court which deals with divorce, property, maintenance, parenting orders of all children and defacto relationships.

Background

The Family Law Act 1975 (Cth) (“FLA”) is a law of federal parliament that came into operation on 5 January 1976. It applies in every state and territory in Australia because federal parliament, under the Commonwealth Constitution (s 51(21), 51(22)), has the power to make laws with respect to marriage, divorce and “matrimonial causes”.

The FLA replaced the Matrimonial Causes Act 1959 (Cth) (“Matrimonial Causes Act”), which was the first time federal parliament had exercised its powers.

Until 1961, each state had its own law dealing with divorce and related issues such as property, maintenance, custody and access. Then the Matrimonial Causes Act came into operation and for the first time there was just one law throughout Australia for these matters. Grounds for divorce (e.g. adultery) were, with one exception, based on the “fault” of either husband or wife.

The exception and the major innovation in the Matrimonial Causes Act was the introduction of a “no fault” separation ground. Once separated for five years a spouse could obtain a divorce without proving fault on the part of the other spouse.

Overview

The FLA abolished fault as a relevant factor in divorce or other proceedings under it; the only ground for divorce is that the marriage has broken down irretrievably (seeWhat are the grounds for divorce?”). It established a specialist court, the Family Court, and provided for a specialist counselling service to be part of the procedure. The Family Court was intended to be a “caring” court and the aim was for marriage breakdown to be dealt with as simply and as sensitively as possible.

The FLA now deals with divorce, property, maintenance, and parenting orders. It provides ways of getting protection from personal violence and preventing disposal of property (seeInjunctions”). It has been amended several times, in attempts to extend its operation to all children and more recently in relation to property division of persons who are not legally married but who had previously been in a de facto relationship.

Substantial amendments to the FLA in relation to the manner in which the court deals with children’s matters were made in June 1996, with a new part VII (see Parental responsibilities and child support), and more recently by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) in July 2006.