Ancilliary Relief

The case of Jonah v White (2012) 48 FAM LR 562 wishes to appeal the original decision of Murphy J, in which his Honour asserted that the appellant, (“Ms Jonah”) and the respondent (“Mr White”) had not been in a de-facto relationship in correspondence with the Family Law Act 1975 (Cth) (“the Act”). The appeal is bought before May, Strickland and Ainslie-Wallace JJ in the Full Court of the Family Court of Australia in Brisbane. The case seeks to question and determine what constitutes a law-binding de-facto relationship.

There has been a long history regarding reform proposals and recommendations surrounding the law of divorce. The first legislation which was introduced in divorce law was the Matrimonial Causes Act 1857, which allowed people to obtain a divorce. However, today the provisions within that act are outdated, yet, it represented society in 1857. In 1937, legislation altered to catch up with societal changes and additional grounds of divorce were introduced. This again occurred in 1973, where legislation changed altering the grounds and facts in which a divorce could be obtained. This is the current legislation relied upon today.

This left women with a clear disadvantage. The system worked well in happy marriages, but if a situation such as a husband's death, desertion from his family, or divorce were to arise, it was usually the woman who suffered as a result. According to the Code, a contract was necessary for marriage. Also, when a man and woman were getting married, the most important item to be negotiated was the bride price. This, again, shows that men were superior to women when it came to the ownership of property. Regardless of the amount of this bride price, it was managed by the husband and it was used to support the wife and her children: "If a woman who lived in a man's house made an agreement with her husband, that no creditor can arrest her, and has given a document therefore; if that man, before he married that woman, had a debt, the creditor can not hold the woman for it" (Pritchard 155). The bride's father had the right to change his mind about the marriage, in which case he would have been required to refund the purchase price in full showing again how women were nothing more than a piece of property: "If a man bring chattels into the house of his father-in-law and pay the price; if then the father of the girl say "I will not give you my daughter," he shall give back all that he brought with him" (Pritchard 156). Another horrific example of how women were regarded as nothing more than mere possessions was that if a wife died before giving birth to

The property rights of women during most of the nineteenth century were dependent upon their marital status. Once women married, their property rights were governed by English common law, which required that the property women took into a marriage, or acquired subsequently, be legally absorbed by their husbands. Furthermore, married women could not make wills or dispose of any property without their husbands' consent. Marital separation, whether initiated by the husband or wife, usually left the women economically destitute, as the law offered them no rights to marital property. Once married, the only legal avenue through which women could reclaim property was widowhood.

The first is division, as Grant Knight and Vicky Lewis state in their article; Is division and sale a useful remedy: “First, there is the issue of whether the property can be divided and if it cannot then it requires to be sold.” With the present case of Amanda and John the house could not be divided equally between the two parties and would therefore require the house to be sold. Division and sale is therefore, the only logically remedy that the courts could impose. Division and sale is the selling of the house with which the: “proceeds thereafter should be in proportions which are just and equitable.” Dividing the proceeds equally, prevents the general principle of nemo dat quod non habet being an issue. Division and sale is an absolute right and under common law for an unmarried couple there is no defence to this. A case which highlights the courts effectively implementing the remedy of divison and sale is the case of Berry v Berry. In this case the husband wanted to buy out the wife’s shares. However, the outer house refused to allow him to buy out her shares as It was seen in both the party’s best interests to have a sale on the open market which would raise a higher price. Although, in this case Berry and Berry are a married couple and have the be benefit to implement the Matrimonial Homes (Family Protection) (Scotland) Act 1981 it still shows the

The aim of Australia’s family law while responding the ever changing values of society, is to achieve justice in any activity it undertakes. The success of this is valued and determined by whether any significant action has been taken as a result, and what the effects of such actions are on improving the situations of all parties involved. The effectiveness of family law on changing values cannot be determined when regarded as a whole. However, when broken down into certain values, such as in the topic of best interest of the child during separation and the issue of surrogacy, it can be seen that Australia’s family laws are not effective in levelling with the community’s changing values.

Family law is the most complex aspect of the Australian legal system as it is constantly under review and reform pursuing to adopt society’s continual change in values and principles. The changing of laws in an attempt to be parallel with society is a strenuous process. Nevertheless, legislations are reflective of contemporary society’s values and ethics. Numerous legal issues arise in regards to family including, same sex relationships, domestic violence and divorce ideally on the best interest of the child, where family laws have been imposed to protect individuals and aim to achieve justice.

With fault based divorce in the 1960s, child custody depended primarily on the child’s age. If the child was under seven years old, also known as the ‘tender years,’ the mother would receive physical custody. This was because of the belief at the time that women are good caregivers and it was their job to take care of the children at home. However, if the children were older, custody would be granted to the parent of the same sex. Sometimes judges would also award custody of children dependent on martial or sexual conduct of the spouses. When custody was awarded in this way, the presiding judge could be more focused on the rights of the parents than what is best for the child in that situation. Either way, it was quite noticeable that child custody was based on the judge and their opinion, which could change from case to case.

A 2011 case, Kreet v Sampir, Ms Kreet, the victim, wished for her marriage to Mr Sampir to be annulled as it was not a valid marriage under Australian law. Ms Kreet married her husband under duress from her family, therefore not giving her free and full consent making the marriage invalid under the Marriage Act 1961 (Cth). The marriage was then annulled (AustLII, 2011). In this case, Ms Kreet believed that her family was taking her overseas to be married to her boyfriend, Mr U, however while overseas, under duress, she was forced to marry Mr Sampir.

Before marriage it was perfectly acceptable for a woman to go out to work, pay into the NI scheme and receive welfare but once married, regardless of how much they previously paid in, they had no right or claim to the same level of welfare. Vogel argues “once married, a woman’s identity is centrally based on her identity as a wife rather than a citizen” (Vogel, 1991, p75) this meant that after marriage a women was entirely dependent on her husband. The husband earned the family wage and it was the responsibility of the wife to cook, clean and raise children. The idea of a nuclear, patriarchal family was what was considered as normal and god given –the status quo-.

Father’s had claimed that there was sexual discrimination in custodial court cases and decisions, sparking concern for infringement of constitutional rights. They also showed concern for the feminist movement. At the time, there was also a shift from the mother being the homemaker and caretaker as women had to work and by the 1970s, the maternal preference was gone. The Uniform Marriage and Divorce Act of 1970 provided for an unbiased perspective that held the best interest of the child at a standard. This went on to be adopted by many states and for the first time, the interest of the child would be the most important in custodial decision

In the world today, many men and women believe divorce is always a dreadful thing that occurs, but there is actually a beneficial side to it. Divorce has been around for many years and mainly just men were the only ones capable to make the decisions. Until, The Guardian states,” The 1857 Matrimonial Causes Act allowed ordinary people to divorce.” Under this new law, it was capable for women to make the decision, they just had to prove the facts to withhold a divorce. Following 1857, in 1923 there was a private member’s bill that allowed women to petition for a divorce for adultery. However, it only made it a little bit easier, they still needed to prove the reason. A few years later, they were able to pass another law, this law allowed divorce

It was not until 1839 that mothers were permitted to have custody of their children after a divorce but with one catch. The children had to be younger than seven to remain with their mothers were. In 1857, women were permitted to get a divorce from their husbands on the basis that the husband was abusing her. In 1870, women were granted the right to keep their wages earned from their jobs. In 1891, women were granted the right to live separately from their husbands while they were a married couple. Besides the limitations of women’s rights when dealing with domestic issues, there were societal restrictions as well.

The claimant, Ahmad Raja Ghaidan, on the protected tenant’s death (Mr Hugh Wallwyn-James), brought possession proceedings by means of paragraph 2 schedule 1 the Rent Act 1977 . Two impediments went against Mr Godin-Mendoza, firstly, paragraph 2(2) is gender specific. Secondly, the ruling of the Fitzpatrick v Sterling Housing Association in the House of Lords rejected the argument that a same-sex partner could bring himself or herself within the scope of paragraph 2(2) . The county court judge deemed that Godin-Mendoza did not succeed to the tenancy of the flat as the surviving spouse of the original tenant, but was granted a lesser assured tenancy by virtue of section 3(1) of the Rent Act as a member of the original tenant’s family .

It is believed that men are the least affected by divorce. However this doesn’t mean that they do not suffer at all. Indeed, men suffer financially from divorce; they are obliged to support their children as well as their ex-wives. And because before divorce the responsibility was shared by both husband and wife, divorced men cannot always afford to pay alimony, thus they may be