The original Family Law Act was a radical social instrument in its time. Its features, which reflected updated and contemporary ideas about family breakdown, included:
- the ‘no-fault divorce’;
- that the best interests of the child must be the ‘paramount consideration’ in deciding parenting arrangements after divorce;
- equal valuation of the homemaker’s and breadwinner’s contribution to family life (in deciding on property distribution);
- equality of position as between father and mother in relation to custody of a child after separation; and
- provision for a comprehensive new system of court-based marital counselling.
However, a serious problem remained. The limitation of the Commonwealth’s powers under the Australian Constitution meant that the new Family Law Act could only apply to the children and breakdown of family relationships of married couples.
Constitutional roadblocks to Commonwealth coverage of ex-nuptial children
Under the Australian Constitution, state and territory parliaments have powers to make any laws they consider necessary for the ‘peace, order and good government’ except if such a law would be inconsistent with a valid Commonwealth law. This power to make law in areas not already occupied by valid Commonwealth law is called the states’ residual legislative power.
By contrast, the Constitution (at section 51) says that the Commonwealth Parliament may make laws in a listed set of areas only. These areas include marriage, divorce and pensions and benefits. They also include the custody and guardianship of children, but only for those children whose parents are or have been married and are involved in marital breakdown.
Because of these limits on the power of the Commonwealth under the Constitution, the original 1975 version of Commonwealth’s Family Law Act could deal only with the property, financial and parenting arrangements of a married couple experiencing relationship breakdown. Parenting arrangements involving casual or de facto relationships were not covered. Post-separation financial and property disputes for people in de facto relationships, also, were not covered. Unmarried people with these issues needed to attend at a state court under state legislation rather than a federal court under the Commonwealth’s family law legislation.
A solution is found for parenting disputes
Between 1986 and 1990, all the states and territories except Western Australia passed laws to refer (hand over) to the Commonwealth the part of their residual powers that deals with parenting arrangements for children of unmarried partners.
The Family Law Act 1975 (Cth) was amended in 1995 to reflect the states’ referral of power. Although this solution was not as tidy nor as long-term as an amendment to the Constitution, it was a lot easier to achieve and meant that all children caught up in relationship breakdown could be dealt with under the one law, whether their parents were married or not.
Western Australia decided to keep its powers in relation to the children of unmarried partners, rather than referring them to the Commonwealth. It maintains a separate Family Court of Western Australia, which deals with both federal and state issues in relation to children, as well as all matters arising from relationship breakdown, irrespective of the marital status of the parties.
Dealing with the property issues of de facto partners
A significant amount of the Family Law Act deals with the division of property and finances after relationship breakdown. Similarly to the case with children’s issues, the Constitution allows the Commonwealth to make laws and decisions about property only in relation to marital breakdown. So for many years, the property issues of de facto couples experiencing relationship breakdown were not covered under the Act.
This situation effectively discriminated against unmarried couples, who were required to take their property disputes to the state court instead. Not only are the costs of going to a state court much higher than the costs of a property case in the Commonwealth’s Family Court, but the state legislation for property division on relationship breakdown uses different criteria. (Less wealthy, low-earning unmarried partners are likely to receive significantly less from a property distribution in a state court than they would under the Commonwealth law because the state legislation does not take into account likely future earnings of a high-earning spouse.) For more information see How the court decides property and financial issues.
The unfairness and inconvenience of this situation had long been recognised and so progressively from 2003, the states and territories began passing laws referring their power over the property of de facto couples to the Commonwealth. Under the Family Law Amendment (De facto Financial Matters and other Measures) Act 2008 de facto couples (including same-sex couples) can now access Commonwealth law and Commonwealth courts in relations to property distribution and other financial matters at the end of their relationships. For further details see Removing discrimination in Commonwealth law.