Term
| What are the 4 elements of marriage? |
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Definition
The 4 elements of marriage are:
- Between a man and woman
-Voluntarily entered into
-for life
-to the exclusion of all others |
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Term
| What is one case that "between a man and a woman" comes into question? |
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Definition
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Term
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Definition
The act of a person, who is already married, going through the act of marriage with another person during the lifetime of his/her husband or wife.
Punishment is 7 years imprisonment. |
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Term
| What is the legislation surrounding Bigamy? |
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Definition
Marriage Act 1961 (CTH) (s94)
Criminal Code (QLD) (s360) |
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Term
| Is polygamy legal is Australia? |
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Definition
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Term
| Name a case regarding "to the exclusion of all others" |
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Definition
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Term
| What does "voluntarily entered into" mean? |
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Definition
| According to section 23B of the Marriage Act 1961(cth), for a marriage to be declared valid, it must have been genuinely consented to by both parties. |
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Term
| When is a marriage declared invalid? |
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Definition
1. Obtained by duress
2. Obtained by Fraud
3. Mistake was made by one of the parties as to who they were marrying or the type of ceremony being performed (did not realise it was a marriage ceremony)
4. One of the parties was mentally incapable of understanding the nature and effect of the ceremony |
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Term
| What is duress? (in relation to marriage) |
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Definition
| Duress is the use of force or the threatened use of force. If threats are made by one party and another party agrees to marry because of such threats, then real consent does not exist. |
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Term
| What is fraud? (in relation to marriage) |
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Definition
| If the consent of one of the parties to the marriage was obtained by fraud. Meaning that one person induced another person to marry them by telling him or her some untruth about a fact. The untruth, however must be so serious that one person entered into the marriage based upon that truth and was not truly consenting to the marriage. |
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Term
| What classifies as entering into a marriage by mistake ? |
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Definition
| If one party genuinely did not know that they were entering into a marriage contract. |
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Term
| In regards to marriage, what does it mean to be mental incapable? |
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Definition
| That the man or a woman is mentally incapable of understanding the nature and effect of the marriage ceremony. This means that they did not give real consent |
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Term
| What does "for-life" mean? (in relation to marriage) |
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Definition
| That when a party enters a marriage, they are aware that they are entering into a life-long commitment of trust and faithfulness. |
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Term
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Definition
Residents of Australia are free to marry if:
1. of marriageable age
2. not already married to somebody else
3. not within a prohibited relationship
4. genuinely consenting |
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Term
| What is the marriageable age in australia? |
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Definition
the marriageable act in Australia is according to Marriage Act 1961 (CTH) s(11,12):
Any person who has attained the age of 18
Any person between the age of 16-18 may be able to apply to a judge to authorise a marriage. The judge must be satisfied that the circumstances are 'exceptional and extraordinary' to make an order. At least one of the parties must be of normal marriageable age.
Whether the parents consent is taken into account. if they do not consent, then the court has to give consent instead. |
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Term
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Definition
| Annulment is a declaration that the marriage between a man and a woman did not ever exist |
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Term
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Definition
| The legal dissolution of a marriage by a court or other competent body. |
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Term
| What is the difference between fault and no-fault divorce? |
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Definition
| The difference between a fault and a no fault divorce is the grounds for the divorces. No-fault divorce's only grounds is there are irreconcilable differences. |
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Term
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Definition
The grounds of no fault divorce is
- Adultery by either party
- Desertion by either party for a period of no less than two years
- habitual cruelty
- rape of one of the parties to the marriage by either party
- habitual drunkedness for a period of at least two years
- Imprisonment of either party for not less than 3 years since conviction
- one party is not of sound mind and is unlikely to recover. preceeding 6 years before the application for divorce, the unsound party must have spent 5 years or more in a mental institution
- Living seperately for not less than 5 years
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Term
| What is the current legislation regarding divorce? |
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Definition
Family Law Act 1975 (CTH) (s 48,49,50)
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Term
| What are the grounds for the divorce in Australia? |
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Definition
| Irretrieveable breakdown in the marriage with 12 months of seperation. |
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Term
What is a defacto couple? |
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Definition
A defacto couple is according to the Family law Act a de facto relationship is with two parties who are not legally married and have a relationship as a couple living together on a genuine domestic basis.
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Term
| How does the court decide if a defacto relationship exists? |
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Definition
1. duration of the relationship
2. the nature and extent of their common residence
3.whether a sexual relationship exists
4. degree of financial dependence or interdependence
5.the ownership and use of their property
6. degree of mutual commitment to a shared life
7. whether the relationship is or was registered under a prescribed law of a state or territory
8. the care and support of children
9. the reputation and public aspects of a relationship |
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Term
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Definition
| a will is a legal document under which a persons property, which the person has at the date of their death, passes to his or her beneficiaries in accordance with the directions contained in the document. |
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Term
What legislation governs distribution of property? |
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Definition
| Succession Act 1981 (QLD) |
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Term
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Definition
| a person who has made a will |
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Term
· What does intestate mean? |
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Definition
| a person not having made a will before they die. |
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Term
| What are the requirements of a valid will? |
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Definition
1. In writing
2.signed by testator
3. signed by at two witnesses in the presence of the testator
4. made freely and without undue influences |
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Term
| What is a parenting order? |
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Definition
| A parenting order is a set of orders made by a court about parenting arrangements for a child. |
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Term
| What legislation is relevant for disputes concerning children? |
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Definition
| Family Law Act (CTH) (FLA) |
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Term
| What are the typical orders? |
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Definition
The orders that a court now typically makes are:
- The child live with the mother or the father
- The child spends time with the father or mother as agreed between the mother or father or at the following times..
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Term
| What is the presumption? (Regarding children.) |
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Definition
a presumption is a principle which must be applied unless circumstances warrant it to be set aside.
In regards to the child, the presumption is that it is in the best interests of the child for the parents to have equal shared parental responsibility (s61D) except where there has been violence or abuse. This does not mean the child spends equal time with both parents but both parents participate in the making of decisions about major long term issues affecting the child. |
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Term
| What are other parenting orders? |
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Definition
1. How school holidays is to be divided up for children to spend time with both parents
2. phone calls that can made by one parent to the children during the week
3. each parent keeping the other informed of his or her residential address and his or her telephone number.
4. one parent authorising doctors, dentists, and other healthcare professionals to discuss the childs treatment with the other parent
5. One parent authorising any kindy, pre-school or school at which a child attends to provide other parent with details of events related to the child.
6. one parent not denigrating the other parent in the presence of any of the children |
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Term
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What are the best interests of the child?
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Definition
Is the paramount consideration which contains 2 tiers of consideration: Primary and additional
Additional:
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
- Each parent’s ability (and that of any other person) to provide for the child’s needs.
- The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
- The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
- The attitude of each parent to the child and to the responsibilities of parenthood.
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Term
· How is property divided if a person is intestate? |
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Definition
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Term
| Where is best interest of the child found in legislation? |
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Definition
| Family Law Act 1975 (s61DA) |
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Term
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Definition
Primary:
- Protecting children from physical or psychological harm, abuse, neglect or family violence (including being exposed to those things)
- Ensuring that children have the benefit of both of their parents having meaningful involvement in their lives to the extent possible within the best interests of the child
- It is more important for the child to be protected from harm than to have a meaningful relationship with both parents
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Term
| Additional Considerations |
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Definition
Additional:
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
- Each parent’s ability (and that of any other person) to provide for the child’s needs.
- The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
- The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
- The attitude of each parent to the child and to the responsibilities of parenthood.
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