The law plays a crucial role in supporting the struggles of the modern-day woman in the Australian family law arena. The problems faced by women today find their roots in the ‘traditional’ ideas of gender roles and family. Whilst society is gradually shaking up these gender norms they are still very much prevalent today and the Australian legal system has had to step up to ensure equality for woman and increased opportunities.
The introduction of the Family Law Act 1975 (Cth) has been pivotal in assisting woman with obtaining a fair and equitable resolution to their property settlement matters, divorce, family violence, spousal maintenance and child support. This legislation is constantly being improved and updated to ensure that it continues to reflect the ever-changing landscape.
The enactment of the Family Law Act in 1975 brought with it the concept of ‘no fault’ divorce. For the first time the only requirement to file for a divorce was that the marriage had irretrievably broken down which was evidenced by a separation for no less than twelve (12) months. This was pivotal in enabling women, in often abusive relationships, to obtain a divorce without having to satisfy to the Court that their husband had engaged in any wrongdoing or was insane.
Division of assets
The governing legislation in Australia has shifted away from ‘traditional’ property notions and now allows the Court to give consideration to non-financial contributions made by a party to the family, such as parenting and homemaking duties. The implementation of the Family Law Act enable parties to attribute fiscal values to non-economic work, the effect being that the indirect contributions ‘traditionally’ made by women are given weight equal to that of the primary income earner.
The case Stanford v Stanford established a four-step application for resolving property disputes.
The first step involves identifying the asset pool, including both matrimonial and business assets so that no attempt can be made to attempt to defeat a party’s property entitlement by hiding money and assets in a business.
The second step involves assessing both the financial contributions made by each party and the non-financial contributions made to the household and welfare of the family.
The third step is to consider the future needs of the parties. These are helpfully set out under Section 75(2) of the Family Law Act 1975 and involve factors such as age, state of health, earning discrepancy between the parties, and the ongoing care of child if relevant.
The fourth and final step is to determine what is just and equitable distribution of all the assets, including superannuation, under the circumstances.
Spousal maintenance is the provision of periodic financial support for a length of time that one party to a relationship must pay to the other under specific circumstances following a breakdown to the de facto relationship or marriage. Section 72(1) of the Family Law Act recognises the right for a party to obtain spousal maintenance if they are unable to support themselves and the other party has the capacity to provide this financial support. Spousal maintenance entitlements address the social reality faced by women trying to leave relationships where they do not have the means to financially support themselves, particularly whilst awaiting a property settlement outcome. In circumstances where one party may have sacrificed having a career and the associated financial benefits in order to care for the family and undertake homemaking duties then this party will find usually find themselves at an economic disadvantage following separation which is then balanced by a potential entitlement to spousal maintenance.
Sadly, many people in Australia experience domestic violence with the most vulnerable cohort being women and children. The Family Law Act defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.’
Pursuant to section 60CA of the Family Law Act, when deciding whether to make a parenting order pertaining to a child the Court must consider the best interests of that child. Section 60CC(2) of the legislation denotes ‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.’ This can give parents the peace of mind knowing that the Court provides a level of protection in ensuring that children are not placed in a living arrangements where they are at risk of harm or abuse.
Following separation the Child Support (Assessment) Act 1989 and the Family Law Act 1975 ensure that both parents continue to be financially responsible for children.
The Family Law Act 1975 provides in Section 61DA that both parents have ‘equal shared parental responsibility’ for the welfare and development of their children. It is not always practicable or in the best interest of a child to live equally with both parents and so arrangements for child support need to be put in place to reflect the child’s living situation. If the non-financial contributions, such as overnight care, made towards a child by one parent is significantly higher than that of the other parent then the parent with less care of the child should contribute more financially towards the child.
Currently there are six (6) formulas in part 5 of the Child Support Act that are used to determine the annual rate of child support payable by one parent to the other. These formulas take into consideration the different type of parenting arrangements that may be in place. Once and Assessment of child support payable has been determined by the Child Support Agency parents can opt to collect these monies privately or have the Child Support Agency collect them on their behalf. This is beneficial in circumstances where a parent is attempting to avoid that child support obligations. The Child Support Agency have wide reaching powers to recover child support monies owed which provides eligible parents with extra layers of protection.