 Generally the law does NOT intervene into marital and
family life UNLESS there has been a breach of law
 In family law matters this only USUALLY occurs when
there is a breakdown in the marital relationship ie
divorce
 The other usual areas that the law becomes involved
can include criminal matters (eg domestic violence) or
children related matters (eg adoption)
 At law there are very few legally enforceable duties
 There is no legal impediment to adultery
 Nor is there a legal right to sexual relations in marriage
 Although there are many social expectations of a
married couple these are generally NOT reflected in
the law
Maintenance is a financial payment from one spouse to
another that contributes to the care and welfare of the
spouse and/or the children of the marriage.
Maintenance considerations are set out in s 72 of the
Family Law Act
72 Right of spouse to maintenance
(1)
A party to a marriage is liable to maintain the
other party, to the extent that the first mentioned party is
reasonably able to do so, if, and only if, that other party is
unable to support herself or himself adequately whether:
(a)
by reason of having the care and control of a
child of the marriage who has not attained the age of 18 years;
(b)
by reason of age or physical or mental
incapacity for appropriate gainful employment; or
(c)
for any other adequate reason;
having regard to any relevant matter referred to in subsection
75(2).
 Maintenance is NOT automatic – the Court considers
the NEED of the spouse seeking maintenance
 Refer to the handout to discuss the “matters to be
taken into account” in accordance with s 75(2)
 The Federal Government has established the Child
Support (Registration and Collection) Act which also
establishes the Child Support Agency. Additionally the
Child Support (Assessment) Act establishes formulas
to calculate child support
 Traditionally the most valuable asset acquired during a
marriage was the family home.
 In more modern times this situation may be changing
for some couples as a greater share of assets may be
held in shares, investment portfolios, superannuation
and the like
 It is crucial to understand that marriage DOES NOT
automatically change the nature of ownership of
property (including assests)
 As with all matters the preference is for parties to come
to their own agreement regarding property
distribution decisions.
 However, if it is not possible for the parties to agree,
the Court adopts a four step process:
 Estimating the value and nature of the assets and
liabilities at the determinant time
 Estimating the financial and non-financial contribution
direct and indirect that each party made to acquiring
and maintaining the assets
 What adjustments need to be made for the likely future
needs of the parties – refer to s 75(2)
 Confirmation that the outcome is just and equitable in
all the circumstances
 Marriage does NOT automatically create a right in one
spouse to act as the legal agent of the other
 Marriage does NOT alter the right for an individual to
enter into contracts with other persons, or for that
matter their spouses
 As a corollary to the right of individuals to enter into
contracts as individuals spouses do not automatically
become liable for the debts incurred by their spouse
either
 Finally spouses retain the right to individually sue or be
sued in their own names, including suing each other
 A spouse is NOT compellable to give evidence against
their spouse in any proceedings civil or criminal
 However, this does NOT mean that the spouse cannot
CHOOSE to give evidence
 Marriage automatically cancels any previous wills
UNLESS the will was made in contemplation of marriage
SUCCESSION ACT 2006 - SECT 12
12 Effect of marriage on a will
(1)
A will is revoked by the marriage of a testator.
(3)
A will made in contemplation of a particular
marriage, whether or not that contemplation is
expressed in the will, is not revoked by the
solemnisation of the marriage concerned.
 If a person dies without a will (intestate) State laws apply
 In NSW if the deceased leaves a spouse and no children,
the spouse is entitled to the whole estate
SUCCESSION ACT 2006 - SECT 111
111 Spouse’s entitlement where no issue
If an intestate leaves a spouse but no issue, the spouse is
entitled to the whole of the intestate estate.
In the event that an ‘eligible person’ is dissatisfied with the provisions of
a will or their apportionment under the intestacy laws an application for
further ‘family provision’ may be made
SUCCESSION ACT 2006 - SECT 59
59 When family provision order may be made
The Court may, on application under Division 1, make a family provision
order in relation to the estate of a deceased person, if the Court is
satisfied that:
(a) the person in whose favour the order is to be made is an eligible
person, and
(c) at the time when the Court is considering the application, adequate
provision for the proper maintenance, education or advancement in life
of the person in whose favour the order is to be made has not been
made by the will of the deceased person, or by the operation of the
intestacy rules in relation to the estate of the deceased person, or both.
SUCCESSION ACT 2006 - SECT 57
57 Eligible persons
(1) The following are "eligible persons" who may apply to the Court
for a family provision order in respect of the estate of a deceased
person:
(a) a person who was the wife or husband of the deceased person at
the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de
facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on
the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that
particular time or at any other time, a member of the household of
which the deceased person was a member,
(f) a person with whom the deceased person was living in a close
personal relationship at the time of the deceased person’s death.