ALTERNATIVE FAMILY RELATIONSHIPS ATSI customary law marriages (not just any marriage between Aboriginal people!) do not comply with the requirements of a valid marriage, such as: Girls younger than 18 may marry The marriage may not be entirely voluntary (because sometimes girls are “promised” to men before they are old enough to make that decision) 1. Aboriginal and Torres Strait Islander peoples’ Customary Law Marriages

So, if they’re not legal/valid marriages, then what are they? ALTERNATIVE FAMILY RELATIONSHIPS So, if they’re not legal/valid marriages, then what are they? Aboriginal customary law marriages are treated as de facto relationships (which means they get most of the rights of married couples, including access to the Family Court if the relationship breaks down). 1. Aboriginal and Torres Strait Islander peoples’ Customary Law Marriages Recognition of Aboriginal Customary Laws (ALRC Report 31) (1986)

ALTERNATIVE FAMILY RELATIONSHIPS There has been a huge increase in the number of single parent families. In 2011, 22% of families were headed by a lone parent (18% lone mothers & 4% lone fathers) ‘Australian Households and Familes’ Australian Institute of Family Studies (2013) 2. Single Parent Families

ALTERNATIVE FAMILY RELATIONSHIPS LEGAL ISSUE 1: Child support ALTERNATIVE FAMILY RELATIONSHIPS It used to be that an agreement would be made between the residential and non-residential parent and they’d have to go to court to force a parent to pay if they weren’t contributing. LEGAL RESPONSE: The Child Support Scheme 2. Single Parent Families LEGAL ISSUE 2: Shared parental responsibility Between 2006 and 2008, changes were made to the Family Law system (including Child Support). Because of the new emphasis on shared parenting, some men are paying less and more women than ever are having to pay child support payments.

ALTERNATIVE FAMILY RELATIONSHIPS One-third of all registered marriages involve individuals who are marrying for the second time (ABS) 3. Blended Families Blended families are families where a couple lives together (either married or de facto) with children from previous relationships. However, these couples may also produce more children who are fully related to both parents.

ALTERNATIVE FAMILY RELATIONSHIPS The Family Court can order a step-parent to pay financial support if it can be shown that the step-parent has a duty to maintain the child (FLA) The process for a step-parent to adopt their partner’s child is much easier than a regular adoption. Step-children do not have an automatic claim to the estate of their step-parent if the step-parent dies without a will (they have to prove that they were financially dependent on the step-parent) – the Succession Act 2006 (NSW). 3. Blended Families

ALTERNATIVE FAMILY RELATIONSHIPS These are relationships where two people (hetero- OR homosexual) live together on a permanent basis and also share a sexual relationship. The legal phrase is that they need to live together on a “genuine domestic basis”. Basically, it’s people living as a married couple without legally being married. 4. De facto Relationships

ALTERNATIVE FAMILY RELATIONSHIPS Tricky things: You can be in multiple de facto relationships, you can actually be married AND be in a de facto relationship! (s4AA(5)(b) of the FLA) The rights people have when separate are basically like married couples, so court cases in this area are usually a fight over whether there really was a de facto relationship. IMPORTANT CASES: Ricci v Jones – It is up to the person bringing the case to court to prove that there was a de facto relationship Jonah v White – The guy was married during the 13-year relationship. They never lived together though, so just adding up the time doesn’t count Sinclair v Whittaker – The relationship went for about 6 years but the guy didn’t admit it (the judge said it doesn’t matter whether the person thinks there’s a de facto relationship, so too bad) The facts on de facto, Law Institute Journal (2014) ALTERNATIVE FAMILY RELATIONSHIPS 4. De facto Relationships

ALTERNATIVE FAMILY RELATIONSHIPS These are relationships where two people (hetero- OR homosexual) live together on a permanent basis and also share a sexual relationship. Basically, it’s people living as a married couple without legally being married. De facto couples can now access the Family Court (Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008) This means that now when a de facto couple separates (including same sex de facto couples), the entire separation is resolved through the federal system (dispute resolution, parenting orders, etc). This is better for de facto couples AND any children they’ve had together because they don’t have to go through two separate courts. ALTERNATIVE FAMILY RELATIONSHIPS 4. De facto Relationships

ALTERNATIVE FAMILY RELATIONSHIPS Same sex couples have not had equal rights under Australian family law. REPORT: Same-sex: Same Entitlements, Australian Human Rights Commission (2007) GOVERNMENT RESPONSE: The federal government amended 84 Commonwealth Acts through the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 to remove discriminatory treatment of same-sex couples. BUT The Marriage Act 1961 (Cth) has still not been amended to allow for same-sex marriage. The Greens and a Labor MP tried to get the Marriage Amendment Bills 2012 through parliament, but they failed. ALTERNATIVE FAMILY RELATIONSHIPS 5. Same-sex Relationships

ALTERNATIVE FAMILY RELATIONSHIPS The A.C.T. passed the Marriage Equality (Same Sex) Act 2013, THINKING that the federal government was not allowed, under the Constitution, to pass laws about same sex marriage. The High Court decided in Commonwealth of Australia v Australian Capital Territory (2013) that the A.C.T. was wrong. The High Court decided that: The Commonwealth government already had an Act that covers ALL marriage in Australia The A.C.T. Act COULD NOT operate concurrently with that (because it would clash); so… The A.C.T. Act was completely invalid. 5. Same-sex Relationships

ALTERNATIVE FAMILY RELATIONSHIPS Polygamy is having more than one wife. While some cultures and religions allow polygamous marriages overseas, polygamous marriages are not legal in Australia. However, a polygamous marriage that was entered into overseas can be ‘deemed’ to be (“seen as”) a marriage if there’s an issue that goes to court. A marriage will be declared invalid if one of the parties was already married (Mathus & Pews (2011)) Marrying a 2nd person when you’re already married is also a CRIME known as BIGAMY (Bigamist admits forging divorce papers, ABC News (2010)) ALTERNATIVE FAMILY RELATIONSHIPS 6. Polygamous Relationships

Questions There are 5 alternative family types that the law regulates. What are they? (scroll through the PP and you’ll see all 5 on the left hand side of each slide) How are customary marriages treated legally? You have to realise that this has been a part of law reform. Our law has changed and finally recognised customary marriages to some extent. What is the document that has catalysed the recognition of customary marriages? (slide 2) If customary marriages are legally considered as de facto relationships then what laws govern them? (see slide 7 on http://legaloptionsuhsmraziz.weebly.com/uploads/7/6/3/0/76303457/study_notes_-_nature_of_family_law_-_lesson_1_-edrolo.pdf) What is the data that you can draw upon in regards to single parent families? Also see page 336-337 on http://legaloptionsuhsmraziz.weebly.com/uploads/7/6/3/0/76303457/alternative_family_relationships.pdf (slide 3) Single parent families have been regulated heavily (so lots of law reform and also changing values). How have they been regulated? (see slide 4 and see last paragraph on left hand side of paragraph 337 on http://legaloptionsuhsmraziz.weebly.com/uploads/7/6/3/0/76303457/alternative_family_relationships.pdf) Blended families are an increasing trend in our society. How has the law kept up with this trend? How has the law not kept up with this trend? (slide 5 and 6) There are positive and negative legal developments regarding same-sex couples. List them using slide 10-11. How does the law deal with polygamy? (slide 8) Please note – I have not included questions on de facto couples because this is complex and we will investigate this in class.