Family Law - The Dissolution Of Marriage

Front 1

What is Marriage?

Back 1

S5(1) Marriage Act 1961: Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into life

Front 2

What is:

1. Polygyny

2. Polyandry

3. Bigamy

Back 2

1. Polygyny - a man has more than 1 wife

2. Polyandry - a woman has more thsn 1 husband

3. Bigamy - marrying someone while already married to another person

Front 3

What is the difference between divorce and separation

Back 3

Divorce is the actual formal ending of the marriage by the Courts, while separation is when the parties live separately but are still legally married

Front 4

What are the elements of Dissolution

Back 4

- Divorce

- Court orders that the marriage is at an end

- Distinguished from annulment because court recognises there was a valid

Front 5

What is S48(1) of the Family Law Act

Back 5

…the marriage has broken down irretrievably

Front 6

What is S48(2) of the Family Law Act

Back 6

establishmarriage has broken down irretrievably if the court is satisfied that theparties separated and thereafter lived separately and apart for a continuousperiod of not less than 12 months immediately proceeding the application.

Front 7

What is S48(3) of the Family Law Act

Back 7

No divorce if there is a chance of cohabitation being resumed

Front 8

What is S49(1) of the Family Law Act

Back 8

divorce can be granted becausecohabitation was brought to end by the action of one party only.

Front 9

What is S49(2) of the Family Law Act

Back 9

possible to be found to have separatedeven if the parties have resided in the same residence.

Front 10

What is "no fault divorce"

Back 10

Family Law Act 1975 - No need to rove adultery, cruelty, etc. however there must be a 12 month period of separation

Front 11

What are the grounds for divorce according to the Family Law Act

Back 11

The marriage has broken down irretrievably

Front 12

What is the process of divorce

Back 12

Application made (after 12 months) > filed in federal magistrates court > filing fee > divorce documents served on other party in marriage > other party may give a response > the matter is heard by the court who may grant divorce

Front 13

Children:

A divorce will not be granted unless proper arrangements are made for___________

Back 13

the care, welfare, and development of the children of the marriage.

Front 14

What is Involved in The Formal End of a Marriage

Back 14

Once Court grants divorce (makes order) aDecree nisi is given. After the expiration of one month, aDecree Absolute is given which is the formal end of the marriage.

Front 15

What is a Child of The Marriage?

Back 15

Biological Children:

- Of the husband and wife born before the marriage or after the marriage came to an end

- Who were born before or during the marriage of the husband and wife

Front 16

Who are children deemed to be children of the marriage?

Back 16

A child adopted by husband and wife or by one of them with the consent of the other

Front 17

What are the rights of a child of the marriage?

Back 17

A child has the right to know both parents, and spend regular time with both parents. A child should have the benefit of a meaningful relationship with both parents.

Front 18

What are the 'best interests' of the child?

Back 18

It is in the best interests of the child for both parents to have equal parental responsibility. This does not apply in circumstances where there is a family history of abuse or neglect, and does not automatically mean equal time with each parent.

Front 19

What is the parental responsibility?

Back 19

Parental Responsibilityin relation to a child,means all the duties, powers, responsibilities and authority which, by law, parentshavein relation to children. Basically, making of decisions about major long term issues affecting the child

eg. name, school, health matters, religion, etc

Front 20

What is a Parenting Plan?

Back 20

If the parents of the child agree, they may make a written agreement setting out parenting arrangements which is signed and dated. In this case there is no need to go to court, it is not legally enforceable, and changes can be made with the agreement of both parties.

Front 21

What is a Consent Order?

Back 21

Similar to a parenting plan, but an application is made to the court. A consent order formalises the agreement, and is binding for both parties.

Front 22

What is a Parenting Order?

Back 22

If the parents do not agree, a parenting order can be made by the court which sets out who has responsibilities for the child, such as with whom the child shall live, with whom the child shall spend time and with whom the child shall communicate. Orders are binding on the parties.

Front 23

What are the 4 ways of dividing the property of the marriage?

Back 23

- Agreement

- Consent orders

- Financial agreement

- Court deciding

Front 24

Division of property - what is an agreement?

Back 24

Parties simply agree as to who gets what, and the court is not involved. The disadvantages of this include unequal bargaining power, the fact that it cannot be enforced by the courts, and the lack of knowledge of entitlements.

Front 25

Division of property - what is a consent order?

Back 25

Parties agree as to who getswhat. The court reviews the agreement, and usually approvesthem. This becomes an order of the court.

Front 26

Division of property - what is a financial agreement?

Back 26

A written agreement that contains a statement that both partiesobtained independent legal advice before signing agreement as to effect,advantages and disadvantages of agreement. Has certificate from legaladvisor confirming advice annexed to the agreement, is binding, and can be enforced or set aside by the court.

Front 27

Division of property - why does/what happens when the court decides?

Back 27

The court decides if the parties are unable to agree ofdivision of property. An application to Court can be made up to 12months after the divorce. The Court will decide how theproperty is to be divided.

Front 28

What steps does the court follow when deciding how property will be divided?

Back 28

1.Determinethe pool of assets

2.Considercontributions of the parties 3.Considerfuture needs of the parties 4.Considerif proposed orders are just and equitable

Front 29

What is involved in determining pool of assets?

Back 29

- Determine what are the assets of the parties

- Identify and value those assets

- Deduct liabilities

Front 30

What is involved in considering the contributions of the parties?

Back 30

- Look at what each of the parties contributed to the pool of assets

- Look at financial contribution

- Look at non-financial contribution, including welfare of the family