Family_Relationships

In contemporary Australia there exists a wide variety of family structures. However, the law has traditionally recognised the nuclear family and has been slow to recognise other family arrangements. As a consequence, not all families receive equal recognition under the law. However, there has been a gradual movement towards equality for all family units, regardless of their composition. The nuclear family, composed of a legally married couple, as defined by the Family Law Act 1975 and their children has traditionally been the family structure that has received legal recognition and regulation. The law imposes certain responsibilities upon spouses, such as maintenance, and rights, such as the right to inherit in a case of intestacy. The law also creates obligations and rights between parents and children. Parents must provide children with an education and medical treatment and are responsible for their care and control and for imposing reasonable discipline. These rights derive from the common law as well as statute law, including the Education Act 1990 (NSW) and Children and Young Person’s (Care and Protection) Act 1987 (NSW). De Facto relationships have become a very common family structure in Australia. The Australian Bureau of Statistics has found that 66% of modern couples live in a de facto state prior to marriage. The widespread social acceptance of such relationships and the lack of legal regulation over them prompted all state governments to pass legislation in this area. The De Facto Relationship Act 1984 (NSW) aims to protect individuals in de facto relationships and to clarify the rights of the parties in the event of the relationship breaking down. Aboriginal and Torres Strait Islanders often marry according to the law, customs and rituals of their own communities. Such relationships are not within the legal definition of marriage as established by the Marriage Act 1961 (Cth) or the De Facto Relationships Act 1984 (NSW). Therefore, partners to a customary marriage are not afforded the same degree of protection as other Australians who marry according to statute law. However, if the relationship fails, it may be treated as a de facto arrangement, with the partners receiving protection according to de facto legislation. Any children of a customary marriage will be protected under the Family Law Act 1975 (Cth) in the same manner as children of any other relationship. Due to the high level of divorce and subsequent re-partnering in Australia, there are many blended families in existence. Such families consist of re-partnered adults, biological siblings, step-siblings and many other combinations. The amount of legal regulation in such families varies depending on the exact nature of the structure. For example, if the adults have remarried there will be more regulation than if a de facto relationship has been entered into. If someone legally adopts the children from their partner’s previous relationship, a different amount of recognition will exist than if the children had not been adopted. It should be noted that children now have the same essential rights regardless of their birth circumstances. Therefore, children who are the product of a marriage, a de facto relationship, or living in a single parent household have equal status in the eyes of the law according to the Children (Equality of Status) Act 1996 (NSW).. The high level of divorce in Australia, has also lead to the existence of many single parent families. Such families receive varying degrees of legal recognition and protection, depending on how this single status resulted. If children are in sole parent family due to divorce, they have a clear right to maintenance which can be enforced through the Child Support Agency or a Family Court order. Sole parents who were never married to the other parent of their child can also claim maintenance. However, this is more difficult and costly, because a court case is often necessary. Hyde v Hyde & Woodmasee established that under the common law, only monogamous marriages are valid. Thus polygamy and polyandry are illegal. However, due to the fact that all marriages legally entered into overseas are recognised in Australia, some limited recognition of polygamous marriages does occur. If a person enters into multiple marriages overseas and subsequently migrates to Australia, the first marriage is recognised under the Family Law Act 1975 (Cth). Any other marriages are treated as de facto relationships. This gives protection to the various parties if the relationships break down. Relationships between same sex couples receive only limited legal recognition and regulation because they do not fit legal definition of a marriage. In NSW there has been a movement towards improving the legal rights of parties in same sex relationships, with the De Facto Relationship Act 1984 (NSW) amended in 1999 to cover same sex couples. Homosexuality is no legal barrier to gaining custody of a biological child. Same sex couples are now able to access social security benefits in the case of the death or injury of their partner and are also able to take family leave entitlements to care for a same sex partner. However, same sex couples are not afforded rights equivalent to those granted to heterosexual couples and Anti-Discrimination Act 1977 (NSW) has still not been amended to include same sex relationships. The Australian legal system shows varying degrees of effectiveness in regulating family arrangements. Marriages and de facto relationships are highly regulated compared to polygamous and same sex relationships. Blended families and indigenous customary marriages are subject to varying degrees of regulation. Since regulation often implies protection, it is evident that whilst some family arrangements are well protected, others have very little protection under the law. The challenge for law-makers and reformers is to confront differing community expectations, cultures and moralities, to create a legal system which grants equal legal rights to all, regardless of their family’s composition.