The Dissolution Of Marriage Essay, Research Paper
The Dissolution of Marriage
There are three family Law Act processes that cover the ending of marriages, they are:-
1. Decrees of divorce, which is the Dissolution of marriage
2. Decrees of nullity
3. The declarations for validity of marriage
While today I shall be talking about the first one I said, The dissolution of marriage, which is the most common out of the three.
Why a marriage has broken down is not an area that the Family Court is interested in. Causes such as adultery, desertion, violence etc. that have may of contributed to the ending of in marriage are not considered by the court, as these use to be considered under the Matrimonial Causes Act 1959 (Cth). As this is the principle of “No Fault” where neither partner can be blamed for the causing of the breakdown in a marriage. And so the only ground for divorce is to prove that your marriage has ended (which is an irretrievable breakdown) and this is done by living separately for at least 12 months.
If you happen to try to live as husband and wife for less than three months, your 12-month separation will not be invalid.
Though it is possible for you and your spouse to live under the same roof and say you live separate and apart. For this to take part both parties are not allowed to sleep together, not go out with each other, have a reason for still living together such as lack of finances or children, they should intend to separate in the future and there are many more.
After a marriage has broken down the welfare of the children (if any) has to be settled. Some parents feel that the use of the terms ‘custody’ and ‘access’ belittled them as, it was a win or lose situation of who got the children. So just recently the term ‘residence’ with ’specific issues’ orders has replaced ‘custody’ and the term ‘contract’ replaces ‘access’. While also ‘Guardianship hardly exists in the Family Law Act 1995 (Cth) as it has been replaced with the concept of ‘Parental responsibility’. This concept now brings in all duties, powers, responsibility and authority which by law, parents have in relation to children. As it was usually only thought of when a parent had custody of a child, now both parents have responsibilities.
When deciding of who should have ‘residence’ or ‘contact’ to the child, the court will consider, who has been caring for the child since the separation, the best interests long term for the child, the wishes of the child, any special needs of the child, the childs’ relation ship with each parent, the parents willingness to care for the siblings involved and anything else the court finds relevant. Though then one wonders to what extent does the court consider the interest of the child when deciding this. Well by requirement of the law the interests of the child is paramount. As to lessen any undue hardship a child feels to the separation, this is why the law has been written this way.
Then the maintenance of the child, which is a financial payment has to be considered which includes providing physical support, health needs, education and any other matters regarding the growth of the child. When deciding the amount of maintenance to be paid, the court will consider the amount of support needed to maintain the child, to maintain the parents, and if parents need to support anyone they are legally financially responsible for. All of this will be decided under the Child Support Act 1988 (Cth).
The effectiveness of spouses using the Family Court to settle disputes arising from the dissolution of marriage can be very beneficial as it has a simplified procedure in which divorce can be obtained, it reduces the cost of divorce and upholds the dignity of the parties involved through private hearings, it is more effective to enforce ‘residence’ and ‘contact’ orders, and it has the ‘No Fault’ clause.
Though overall divorce today is becoming very common to marriages as approximately one in three first marriages end in divorce. The reason’s for this is probably because it is so easy to get a divorce.