Last Updated 25 Jun 2021

Family Law Reflecting Moral and Ethical Issues

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The legal system continuously endeavours and reforms to provide effective legislative remedies and modify existing legislation to reflect the changing nature of the Australian family structure. Family law has always been a colossal aspect of Australian society with many effective measures in place for family matters. Numerous values and their effectiveness have been debated through various features of family law, and these debates continue to the present day.

Divorce is the legal dissolution of a marriage by an official court decision and was once frowned upon within society, and prior to 1974, married couples who wished to divorce had to apply under the Matrimonial Causes Act 1959 (Cth) on the ground of “fault” – that is, on the basis that one or both spouses admitted to acting in a way that undermined their marriage (for example, adultery, cruelty, insanity and desertion).

However, the first major change to family law in Australia occurred when the law took reform in this aspect with the Family Law Act 1975 (Cth), which states that the only ground for divorce is the “irretrievable breakdown of the marriage”, such as the case in the marriage of Todd (1976), one or two of the spouses must consent for divorce. The declining influence of religion and the idea that marriage does not always “last for life” were social factors that influenced this change.

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The erosion of the concept of fault and the establishment of a single ground for divorce thus demonstrates changing societal values and how law is changed over time. Australian society believes that it is important to protect the disadvantaged, or those who cannot act to preserve their own rights – particularly children. After a marriage has been dissolved, it is the responsibility of both parents to provide financial support for their children as the case of Campbell and Campbell (1998) established that it is in the best interests of the child to maintain the lifestyle to which they have grown accustomed.

The Australian Bureau of Statistics Marriages and Divorces 2011 Media release indicates there are 44,000 children under 18 affected by divorce. As such, the Child Support (Assessment) Act 1989 (Cth) requires that children receive a proper level of financial support from their parents and the Child Support (Registration and Collection) Act 1988 (Cth) ensures that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis.

Prior to the Acts, only 40% of claims for child maintenance were being met, whereas after the Acts were passed, approximately 70% of claims are being met. The new emphasis on children’s rights and parental responsibility reflects the social perception that children are vulnerable members of our society and thus require greater legal protection.

Another important change in social attitudes has been the increasing acceptance of same-sex relationships, and recent law reforms have centred on providing same-sex couples with the same rights as de facto heterosexual relationships, and removing discrimination based on sexuality. At the State level, the De Facto Relationships Act 1984 (NSW) was amended to the Property (Relationships) Act 1984 (NSW), for the growing acceptance of heterosexual and homosexual relationships highlighted by news article ‘Partners who just can’t wait (2010)‘ which states the growth in unmarried couples living together.

It now recognises same-sex relationships as having the same legal standing as heterosexual de facto relationships, and thus provides protection to people in same-sex de facto relationships in property division, inheritance and decision-making in illness and after death. The Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 (NSW) creates amendments to 57 pieces of state legislation to ensure de facto couples (including same-sex couples) are treated equally with married couples.

This Act also creates amendments to the Anti-discrimination Act 1977 (NSW) to ensure that same-sex couples are protected from discrimination on the basis of their “marital or domestic status” in employment, accommodation and access to goods and services, articulated in the Daily Telegraph ‘Gay couple win foster care case (2008)’, after a gay couple won $10,000 in damages when their application to become foster carers was refused. However in terms of federal laws at present, same-sex couples are unable to marry.

The Marriage Act 1961 (Cth) defines marriage as “the union of a man and a woman to the exclusion of all others voluntarily entered into for life”, a definition established by the case of Hyde v Hyde and Woodmansee (1866) and repeated in the Family Law Act 1975 (Cth). In 2004, the Commonwealth Government reconfirmed the traditional concept of marriage as the “union of a man and a woman” when it passed the Marriage Amendment Act 2004 (Cth) meaning same-sex marriage is automatically void in Australia, ncluding overseas marriages. Over time, both State and federal governments in Australia have enacted legislation to encourage and enforce practices which are not only in the public interest, but also reflect the moral and ethical standards of society. While legislative mechanisms have been reasonably successful in achieving this goal with regard to the introduction of “no-fault” divorce and the protection of children, there is the need for further review and reform of legislation concerning same-sex couples.

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