The Legal Meaning Of Family
A husband and a wife (usually with children) has been a very popular model picture of a family in Australia and many other countries, (until now).
However, popular model beliefs change over time, hence same-sex marriage. These ideal family scenarios, (either man and wife, man and man, wife and wife) are and will always be undermined by elements such as: divorce rates continually going up, less people getting married in the man/wife conventional way, de facto marriage on the rise. nevertheless marriage is at the nucleus of family law in Australia.
Gough Whitlam’s Family Law Act in 1975 brought in No-fault Divorce, made available to the Australian People. A no-fault divorce refers to a type of divorce in which the spouse that is filing for divorce does not have to prove any fault on the part of the other spouse. All a spouse has to do is give any reason that the state honors for the divorce.
Another question must be addressed and asked: does the act of getting married subsequently place the two in marriage into a contract? A Contract equals – An Enforceable Agreement. The expected obligations and duties in a marriage are far too indefinite and unclear to be enforceable as a contract. In contracts, the terms must be clear and unambiguous, whereas marriages are not so clear and unambiguous in nature. Ever since 1975, The Family Law Act in Australia, doesn’t recognise marriage as a contract.
The Marriage Act of 1961(Cth) makes it only legal if it is in accordance with all requirements in Australia. This Marriage Act of 1961(Cth) states and details how these marriages are to be fulfilled, such as Age, Formalities and Solemnization of the Marriage.
In 2004 The Commonwealth Government had strong concerns of the possibilities of Courts Recognizing Same Sex Marriage in Australia. Subsequently an amendment was made to the Marriage Act. These amendments were to prevent the possibility of same-sex marriages taking place in other countries, and these new same-sex married couples coming to Australia and having their same-sex unions recognized by the courts of Australia. Liberal Prime Minister John Howard in power at this time.
Historically for Australia our early definition of a Marriage was derived early from a British Case – This case Being ‘Hyde versus Hyde and Woodmansee’ in 1866. The judge residing over this case was Lord Penzance, said that marriage is: “A Voluntary Union for life of one man and one woman to the Exclusion of all Others” These three main features or ingredients being the importance of – A Heterosexual Union, A Monogamous Union, A Voluntary Union. Marriages that do not have these elements may be recognized and viewed as being Void.
The legal recognition of ‘Same-Sex Marriage’ now here and around the world is as follows: Argentina, Australia, Belgium, Brazil, Canada, Columbia, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, The Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, United Kingdom, United States and Uraguay, and the list grows on with common sense here and everywhere else being the great prevailer.
The legalization of same-sex marriage has been quite a roller coaster ride to say the least. When this day finally arrived – what an emotional finish line it was. For so many Australians and others around the world, this has been a horrific path to endure and to finally see this time in history, the never approaching rainbow at the end of this dark cruel tunnel of inequality, intolerance and hatred. Sadly not all of these same-sex crusaders lived to see the day. Hearts go out to these poor souls who didn’t quite get to this monumental day of change for one reason or another. This legalization doesn’t fix all the wrongs – not by a long shot. Decades and decades of taunts, physical, psychological, spiritual irreversible discriminatory harm the LGBTIQ community have endured. Trying to do better as a community is a tall order. Amongst this rainbow celebration and jubilation, let’s look back and remember the pain and wounds it took for us to achieve this semi-rectifying leap forward in history.
Transsexuals – Male and Female Meaning:
What gender is a person with the body of a male (may have fathered children) but who has the self-image as a woman? The Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission  FamCA 94 Held that: Gender is determined at the time of Marriage – not at the time of birth.
The Ceremony of Marriage: the Legal Marriage Act regulates these few elements: A Marriage Ceremony must be conducted by a person that is authorized. If the marriage celebrant is religious, this religion must be a recognized one. Any celebrant that happens to be a civil celebrant, this Civil celebrant must be authorized to conduct ceremonies. Any place, any time, any day, marriages can very well be solemnized. Marriages by proxy are not allowed – (Absentees of one party during the ceremony) parties must be both present. As long as certain key words are spoken by the authorized celebrant, the ceremony can take on any form or fashion. Two witnesses over the age of 18 are required.
To be legally married in Australia, a person must: not be married to someone else. not be marrying a parent, grandparent, child, grandchild, brother or sister. be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years of age.
Pregnancy: Permission to marry in cases where pregnancy is the case is considered but courts rarely find this to be adequate. Cultural Considerations: Girl’s marry early in some cultures, although culturally accepted in many countries, in Australia more often than not these cases are refused. Foreign marriages: Marriages undertaken overseas can be dissolved or declared valid (by the family court) Overseas Marriages are generally Recognized as being valid if under that country’s law the marriage was valid. Polygamous marriages: Marriage must be monogamous to be treated as valid but, if for on reasonable grounds the person believes that their first spouse is deceased, then this just may be a valid defence. In reasonably proving with evidence, their first marriage can be made Null and Void.
Void Marriages: If for some reason a marriage was not legal then this marriage can be made null and void. A Decree of Nullity may be applied for to state formally that no marriage existed legally. Procedural Irregularity: According to the Marriage Act, if a marriage is not solemnized according to required procedure, then this marriage will be null and void. Real Consent: Both parties to a marriage must give ‘real consent’. Any duress or fraud undertaken to obtain consent, automatically renders marriage null and void.
Annulment and the Effects of Annulment: The Federal Court declaring a certain marriage was NOT Valid, and thus being therefore the validity of this marriage has NO legal effect. A Decree of Nullity of a Marriage: Annulment Grounds in these cases and Void Granted if Bigamy was present, A close relative as mentioned above have entered into this marriage, Duress or Fraudulence present therefore no real consent, marriage formalities were not properly observed and followed, Age of parties to marriage are not of legal age.
Mistake in Marriage: In 1979 a woman married a man only to find out he was a hermaphrodite (This man had the attributes of both male and female), this woman was genuinely under ‘Mistake’ and thought she was marrying a man. In this circumstance the ‘Mistake’ was sufficiently proven – Annulment granted. On the other hand Mistake is not always enough of a reason for annulment: a person’s position of character or a person’s wealth brought to the other party’s knowledge is not enough to have Annulment Granted – Annulment Refused.
Marriage Dissolution: The process of taking a Valid Marriage and formally dissolving it. This freely opens up the door legally to re-marriage if desired. Divorce Application: Instituted proceedings as long as – Territorial Nexus is sufficiently to either one party – either one party is Domiciled in Australia, An Australian Citizen, An Australian Resident in Australia. Dissolution Grounds: Irretrievable Breakdown, to prove this – the parties must live separately for at least twelve months. Short Marriages: A Marriage of less than 2 Years, in these situations a divorce may be granted as long as reconciliation has at least been tried.
Granting a Divorce: A Decree Nisi, After One Month and One Day from the forming of this decree it becomes absolute. The reason for the one month and one day is to allow time for an appeal, as many divorces are of an ‘ex parte’ nature (only one party present in the application). Ancillary Relief: Property and/or maintenance does not automatically get addressed in Divorce Hearings. For these extra issues there are further legal applications to be made. Inside 12 Months of Divorce becoming Final an application must be made for division of property and/or maintenance.
‘The immortality of our spirit we thrive toward is the essence we discover in marriage of definitions previously unknown’.
A D Solomon