The History Of Family Law In Australia

| | February 19, 2024

Issues regarding family can often be an emotional and stressful time for all involved. However, family law as we know it hasn’t always been the way it is.

As attitudes change around marriage and family, so must the law reflect that. Often what was forbidden, and frowned upon is now accepted as a social norm.

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Australia is no exception! Australian family law is rooted deeply in its history. As Australia grew from a penal colony to its own independent nation, so too has the institution of family grown and evolved.

READ MORE: The History of Hardwicke’s Marriage Act of 1753

Marriage & Divorce In Colonial Australia
Australia was first established as a penal colony of the British Empire in 1788. In the early years, not very many wives and husbands of convicts were able to follow their spouse from England to Australia.

Adequate records were not available in the early years, so any records of a convict’s original marriage were usually not available (and hence enforceable). As a result, convicts who arrived without their spouses often entering into a second marriage.

In many cases, many first settlers simply lived together without a formal marriage arrangement. There was also the belief in England and other colonies that if one partner were sent overseas, then both partners were release from their marriage and free to marry again.

Until 1857 Divorce was not generally available in England, unless it was by Act of Parliament, and rarely was it available to women. This was to safeguard a man’s lands and titles for his heirs.

This double standard meant that if a wife committed one single act of adultery then the husband could apply for a divorce. However, it was only available to a wife if her husband had committed adultery with aggravating circumstances such as desertion, cruelty, sodomy or bestiality, bigamy or incest.

In 1857, the British Parliament passed the English Divorce Act, and its colonies (including Australia) were able to pass similar legislation.

In 1858, a Divorce Act was introduced to the Tasmanian Legislative Council, however, it was strongly opposed on the grounds of immorality.

A second attempt in 1860 was successful, however, the focus was shifted towards protecting wives and children of husbands who had deserted their family.

Marriage & Divorce In The 1900s
When Australia became an independent nation in 1901, the British Parliament allowed the 6 existing Australian colonies to govern themselves as part of the Commonwealth of Australia. This meant Australia now had its own power over marriage and divorce, however, this wasn’t completely exercised for 60 years.

Marriage and divorce came under federal jurisdiction when the Commonwealth Marriage Act (1961) and Matrimonial Causes Act (1959) came into force. Before that, marriage and divorce were still managed by the States.

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The Matrimonial Causes Act 1959 provided 14 grounds for a divorce. The most common grounds included desertion, adultery, habitual drunkenness, cruelty, insanity and imprisonment. To succeed on one of these grounds, a spouse had to prove marital fault. This is known as fault based divorce.

Fault Based Divorce
Fault based divorce is when one spouse may argue that the other spouse did something which caused the marriage to fail.

To prove marital fault a spouse would often hire a solicitor or private detective to collect evidence to support the claim. This process was often expensive which made it difficult for the less wealthy to get a divorce.

There was only one ‘no-fault’ ground that was accepted when applying for a divorce. If the couple had been separated for more than 5 years, then a spouse had grounds to apply for a divorce.

The Matrimonial Causes Act all also outlines that, except with leave of the court, a spouse could not apply for a divorce unless the couple had been married for at least 3 years.

The Family Law Act (1975) & No-Fault Divorce
In 1975, the Family Law Act was enacted by the Australian Government led by Gough Whitlam, the Australian Prime Minister at the time.

The biggest change the Family Law Act introduced was the no-fault divorce. In a ”No fault” divorce it is not necessary for a husband or wife to prove that the other spouse did something wrong in order to obtain a divorce. One spouse must simply show that their relationship has suffered an irreconcilable breakdown in order to get a no-fault divorce.

The Act also reduced the amount of time a divorce comes into effect from 3 months to 1 month. This resulted in a large amount of divorces recorded in 1976.

According to the Australian Bureau of Statistics, since the 1980’s the divorce rate in Australia has increased steadily, whilst the amount of de facto relationships continues to increase. The number of marriages has also steadily decreased

Shifting Focus To Children
In 1983, the Family Law Act tried to reduce the formal and antagonistic nature of family law by clarifying the concepts of “custody” and “guardianship of children”. As a result, Court procedures were simplified in 1987 and the requirements for barristers and judges to wear traditional wigs and gowns was removed. The goal of this change was to remove the idea that a spouse had to “win” a family law case which created a less threatening environment for families.

In 1990, Australia participated in signing the UN Convention On The Rights Of The Child (UNCROC). This continued Australia’s shift towards protecting children and resulted in the Family Law Reform Act (1995).

In 1995, both parents legally had the same (but not shared) parental responsibilities for their children. This was regardless of where and with whom the children lived unless specified by the Court. The introduction of “shared parental responsibility” recognised the desire for a continued joint duty and co-operation in parenting after separation and divorce.

More changes were also introduced to increase a child’s rights and protection from violence, with the focus shifting towards what is in the child’s best interest.

Moving Towards Mediation & Dispute Resolution
In 1996, there was a clear move away from litigation to dispute resolution and mediation. The purpose of this was to enable couples choosing to divorce to avoid long and expensive court trials. The simplified procedures were found to reduced the psychological and emotions effects of divorce, resulting in better decisions.

In the early 2000s, there was was a move to reduce delays to access services and also allow families to attend voluntary counselling.

The Introduction Of Family Relationship Centres
Due to the shift towards dispute resolution and mediation, 2006 saw the opening of Family Relationship Centres. Couples were now required to attend compulsory mediation before they made any application to the Court regarding children.

The Family Law Act previously only covered situations concerning children born or adopted into a marriage. It was only until 2006, the Family Law Act was changed so that the Commonwealth was able to handle circumstances related to children born outside of the marriage.

De Facto Marriages
In Australian law, de facto relationships were barely recognised. This resulted in struggles with partner’s rights, particularly property settlement, when a de facto couple broke up.

In 2009, the Australia Government responded by including all de facto couples (including same sex couples) under the Family Law Act. This granted de facto and same-sex couples the same property rights as married couples.

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Continuing Improvement
It is clear that marriage and divorce have changed significantly since colonial days. Even today, the Family Law Act in Australia continues to evolve since its conception in 1975.

Attitudes to marriage and divorce around the world continue to change. Even today, there is a push towards equity for all family units, regardless of its composition. As advances in technology and social norms continue to evolve, Family Law will continue to adapt as a result.

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