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Australian family law
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Australian family law
Australian family law is principally found in the federal Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as well as in other laws and the common law and laws of equity, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the Federal Circuit and Family Court of Australia and the Family Court of Western Australia. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51(xxi) and (xxii) of the Constitution of Australia and internationally by marriage law and conventions, such as the Hague Convention on Marriages (1978).
Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the Family Law Act 1975, which established no-fault divorce in Australia. Since 1975, the only ground for divorce has been irretrievable breakdown of marriage, evidenced by a twelve-month separation. However, a residual "fault" element remains in relation to child custody and property settlement issues. The federal Family Law Act 1975 covers divorce, children's orders, property division, spousal maintenance and related matters.
Under the Family Law Act 1975, a decree of nullity can be made if a marriage is void. Annulment does not involve termination of a marriage, but rather a declaration the purported marriage is in-fact void.
What constitutes a void marriage is determined by section 23 of the Marriage Act 1961 The distinction that existed before 1975 between void and voidable marriages no longer exists. In addition, the 1975 Act also abolished the legal concept of non-consummation of marriage as a ground for annulment, so that a divorce application would need to be made.
A marriage is void if:
An application for a decree of nullity takes precedence over an application for divorce, so that if it is found that a marriage is void, then divorce application becomes irrelevant, though other remedies may still be available.
In Kallestad v Brodie, the husband (Mr Kallestad) sought declaration that his marriage was void on the grounds that his wife (Ms Brodie) had previously been married to another person with that marriage still being live at the time Mr Kallestad was married to Ms Brodie. The Family Court of Australia found the marriage was void on the grounds Ms Brodie's original marriage was still valid at the time the second marriage was made.
Bown v Jalloh
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Australian family law
Australian family law is principally found in the federal Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as well as in other laws and the common law and laws of equity, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the Federal Circuit and Family Court of Australia and the Family Court of Western Australia. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51(xxi) and (xxii) of the Constitution of Australia and internationally by marriage law and conventions, such as the Hague Convention on Marriages (1978).
Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the Family Law Act 1975, which established no-fault divorce in Australia. Since 1975, the only ground for divorce has been irretrievable breakdown of marriage, evidenced by a twelve-month separation. However, a residual "fault" element remains in relation to child custody and property settlement issues. The federal Family Law Act 1975 covers divorce, children's orders, property division, spousal maintenance and related matters.
Under the Family Law Act 1975, a decree of nullity can be made if a marriage is void. Annulment does not involve termination of a marriage, but rather a declaration the purported marriage is in-fact void.
What constitutes a void marriage is determined by section 23 of the Marriage Act 1961 The distinction that existed before 1975 between void and voidable marriages no longer exists. In addition, the 1975 Act also abolished the legal concept of non-consummation of marriage as a ground for annulment, so that a divorce application would need to be made.
A marriage is void if:
An application for a decree of nullity takes precedence over an application for divorce, so that if it is found that a marriage is void, then divorce application becomes irrelevant, though other remedies may still be available.
In Kallestad v Brodie, the husband (Mr Kallestad) sought declaration that his marriage was void on the grounds that his wife (Ms Brodie) had previously been married to another person with that marriage still being live at the time Mr Kallestad was married to Ms Brodie. The Family Court of Australia found the marriage was void on the grounds Ms Brodie's original marriage was still valid at the time the second marriage was made.
Bown v Jalloh