Upon the dissolution of marriage property has to be taken into consideration of who gets what. This is called property settlement. The property includes all property of the partnership no matter whose name it is in. The term property includes houses, units and land but that is not all furniture, cars boats shares and even superannuation can be divided up amongst the two parties.
The scheme of the family law act is to encourage agreement in property settlement this is where counselling and mediation can help. Once an agreement is reached it can be formalised in consent orders, or financial agreements.
In the existence of no agreement being reached then an application to the family court can be made and then the property will be settled in court.
The court will take in some factors before deciding on the allocation of property. These include the contributions that each person has made to the marriage.
They could be previously owned property or shares, money made during the marriage gifts or inheritances. If one party does not work then consideration will be made for homemaking and parenting. In today's society there is a large sway toward the parenting and homemaking because you simply can't put a price on it. Once the court has looked at past contributions they will look at future needs. These are determined by the party's potential earning power, health, children or their superannuation.
Because of the present system under the Family Law Act: 1975 (Commonwealth) the no fault component of the law covers the party who filed for divorce against unbalanced property distribution. The only other key factor that would differ the courts decision is a pre-nuptial agreement and in that case the agreement would come out first and then followed by the allocation of property.
However in the case of a de facto relationship the property settlement is slightly different. Instead of entering into a pre-nuptial agreement de facto relationships enter into cohabitation agreements. This is to act as insurance in the event of the relationship breaking down. This would be a well planned step as 2 out of every 5 de facto couples end up separating (Hartley family law).
In Queensland the State law provides separating de facto couple (including same sex couples) a right to obtain property in state courts. They must have:
Separated after 21 December 1999
They were genuinely in a de facto relation ship; AND
They lived together for at least 2 years; OR
There is a child in the relationship under 18; OR
Failure to make an order would result in serious injustice to the party who made financial or non-financial improvements, including parenting to the other party's property
So therefore the separation of property in the case of a de facto relationship is much the same as a married couple.
Once a married party has decided to separate they may apply for a divorce or in some cases where the marriage is declared void then they would be granted an annulment. An annulment is a court order stating that the marriage never existed due to one or both parties not following the laws of marriage for example being under age, homosexual or placed under duress. However we will focus on divorce for annulment is not a popular way of dissolving marriage.
Prior to 1975 the law stated that one party had to be at fault, this was stated in the Matrimonial causes act (1857). Under this law one party had to prove that their spouse had committed an offence to prove they were at fault. Some of these include adultery, habitual cruelty or desertion by either party for a period of no less than 2 years
However today under the family law act: 1975(commonwealth) you are required to prove that the marriage has 'broken down irretrievably' (Legal studies for Queensland volume 2, fourth edition, p75). This is shown by 12 months separation, the 12 month period must be:
A total of 12 months only broken by one period of reconciliation of no more than three months.
The parties may cohabitate during the 12 month period. However if there is proof to say that they had shared time together socially then the courts will have reason to believe that the couple could reconcile and the 12months would not count.
If the parties are successful in their separation then an application will be filed to the federal magistrates court, this is because they share registry facilities with the family court. The case will be heard around 2 months after the filing. The couple would then receive a decree nisi which means that the divorce has been granted but there is a final one month 'reconciliation period'. After the one month they will receive a decree absolute which finalizes the divorce and the parties are eligible to remarry.
When a married couple separate, the children of the marriage need to obviously take residence with one of the parties mother or father. If the couple arrange the residence between themselves and come to an agreement then the court will issue a consent order. There are some cases where the parents cannot decide, and then the court has to decide for them. However the court will put magnitude on the child's interests rather then of the parents. These include:
The child's wishes
The child's relationship with both parents
The effect on the child of any changes in circumstances
The difficulty and cost of having contact with one parent
Each parents capacity to care for the child
The child's background, maturity and sex (may include the aboriginal and Torres straight islander culture connections)
The need to protect the child against a family members abuse
Any factor the court considers relevant
Residence does not have to go to one of the parents but can be granted to a family member or someone else significant in the child's life. This will also occur the same in a de facto relationship as the law puts importance on the point of all parents are parents and being married has no effect.
Where there is residence there also comes maintenance payed by one party to the other. This is a monetary payment to help provide for the child who doesn't reside with them. It helps the other parent pay for food, clothes, school fees, house and car. These payments are regardless of marriage, de facto relationship or never lived together. There are 2 stages for claiming child support or maintenance. The first (stage 1) refers to parents separated before 1 October 1989 and every child was born before that same date. In this stage the court would decide how much money would be payed. This stage however is soon becoming irrelevant because the date is16 years ago and most new cases don't fit the criteria.
Stage 2 applies to separated spouses on or after 1 of October 1989 and at least one child was born on or after the same date. In this stage the child support is calculated using a formula. In most cases if the property and children go to one party then the maintenance will also be paid to them, leaving the other party in financial trouble.
Most couples live together in one of two ways, marriage or de facto. De facto is the co-habitation between two people. According to the Australian Bureau of Statistics since 1986 to 2001 marriage rate per 1000 has dropped from 7.2 to 5.3 (ABS) this may suggest that more couples are choosing to live as a de facto. The Queensland de facto law reform package and Acts interpretations Act (1954) define a spouse as "either one of two persons who are living together, and who are not married or related". The key point of this definition is that the two must cohabitate, because if they don't then the law can not count them as a de facto.
On the other hand there is the situation of marriage. This sometimes thought as the next step to de facto relationships. In the case of Hyde V Hyde in 1866 a definition of marriage was brought about. Lord Penzance stated "I conceive as marriage, as understood by Christendom, may be defined as the voluntary union of one man and one woman to the exclusion of all others." (Legal studies for Queensland, Volume 2, Fourth Edition, p56). It is clear that the definition does not include de facto's or homosexual marriages.
After the couple have reached legal age to get married, they must comply with 4 steps. There has to be one man and one woman. This means no homosexual marriages. This rule is quite serious and as shown in the case of Corbett V Corbett (1971) the judge ruled that even a biological sex change was not enough to prove he was a female.
The next step is to the exclusion of all others. In Australia the law states that the married couple must remain monogamous. This means that the married couple can't have more than one partner. In other countries men can have more than one wife, this known as polygamy, and in reverse a woman with more than one husband is called polyandry. If a person enters into another marriage whilst already married then they have committed an offence of Bigamy. This is a criminal offence and the second marriage would be declared void, the maximum is seven years prison.
The marriage must be voluntarily entered into, which means any duress used would declare a void marriage. Even a religious marriage could be annulled if the person felt pressured into the marriage.
The final step truthfulness to you and your partner in thinking the marriage will last for life. For the rate of 5.3 marriages in 2001 per 1000 there were 2.8 divorces. However this does not mean that half of all marriages will end up in divorce.
This assignment is required to compare the dissolutions of de facto's and married couples so that will be the main focus.