Lawlink NSW: 2. The Constitutional and Legislative Background

2.1 Under the Australian Constitution power to legislate with respect to family law is divided between the Commonwealth and the States. The framers of the constitution showed considerable foresight in granting the Commonwealth Parliament power to legislate with respect to “marriage” and “divorce and matrimonial causes”. ¹This was a bold departure from the American model under which laws relating to marriage and divorce remained the responsibility of the States. While the framers were prepared to act boldly in conferring powers over marriage and divorce on the Commonwealth it is hardly surprising, in the social climate of the 1890’s, that no thought was given to empowering the national Parliament to regulate other aspects of what is now known as family law.

2.2 The Constitution enabled the Commonwealth to overcome the great variations in State law on matters of status that had plagued the United States. As events turned out, the Commonwealth Parliament did not exercise its powers, except in a limited way, until nearly 60 years after federation with the enactment of the Matrimonial Causes Act 1959 and the Marriage Act 1961. The Family Law Act 1975 (which replaced the 1959 Act) now governs divorce and other consequences of marriage breakdown while the Marriage Act 1961 established a uniform law of marriage throughout Australia.

2.3 While there is now a national law of marriage and divorce in Australia, the terms of the Australian Constitution have produced a fragmented system of family law. The conventional view is that the Commonwealth’s power to legislate with respect to “marriage” and “divorce and matrimonial cause” does not extend to important areas of family law. These include the rights and duties of de facto partners and the custody, guardianship and maintenance of ex-nuptial children whose parents have never married. These areas, which are examined in this Report, remain within the province of the States. ²

2.4 The conventional interpretation of the Constitution has not gone unchallenged. It has been suggested, for example, that the Commonwealth pursuant to its power to make laws “with respect to ... marriage”, can redefine marriage to include de facto relationships and thereby regulate the rights and duties of de facto partners as between themselves and as against third parties. ³

2.5 A paper presented at one of our seminars by Mr Justice Nygh put the argument in favour of this view. ⁴The starting point for the argument is that the term” marriage” was understood in 1900 (when the Australian Constitution was passed as an enactment of the United Kingdom Parliament to extend both to ceremonial and informal marriages. This was because at common law, until Lord Hardwicke’s Act of 1753, marriage could be constituted by consent of the parties alone without a formal religious or civil ceremony. ⁵The common law continued in force in the colony of New South Wales for 40 years after its foundation, ⁶and as late as 1939 Scottish law recognised irregular marriages. ⁷For these reasons Mr Justice Nygh suggested that it may be

2.6 We asked Associate Professor M. Coper of the University of New South Wales to address this question in an opinion prepared for us. Professor Copeis conclusion was as follows: ⁹

2.7 There would be obvious advantages if the Commonwealth could enact valid legislation dealing with de facto relationships. Such legislation would override State laws and achieve uniformity throughout Australia. However, we do not need to express a concluded view as to whether the Commonwealths power to make laws with respect to marriage extends to regulating the consequences of de facto relationships. It is perhaps enough to say that a strong body of opinion rejects the argument that the concept of marriage can constitutionally extend to relationships where the parties have never participated in a ceremony in the nature of a marriage celebration. The High Court has not directly addressed the question” ¹⁰and, as Professor Coper points out, there must be significant doubt as to the constitutional position even assuming the Commonwealth were prepared to legislate in the way suggested. Consequently, we do not think that a policy-making body should proceed on the assumption that the Commonwealth can rely on the marriage power to regulate de facto relationships.

2.8 The Family Law Act does not directly affect the rights of people living in de facto relationships. ¹¹Nonetheless it is useful to identify the major features of the Act, since it is the most significant legislation in the field of family law. Also, we often have occasion in this Report to refer to its provisions. In this section we briefly identify the main features of the Act, which applies to a variety of proceedings between the parties to a marriage or proceedings brought on behalf of a child of the marriage. ¹²

2.9 The Family Law Act abandons the concept of the “matrimonial offence”, which formed an integral part of the pre- existing law, and introduces a single no-fault ground of divorce. Divorce is now available only on the ground of irretrievable breakdown of marriage, established by proof of separation for at least 12 months preceding the filing of the application.

2.10 The Act proceeds on a broad view of the Commonwealth’s constitutional powers, although not as broad as the unconventional view referred to earlier. Unlike the earlier Matrimonial Causes Act, the Family Law Act governs maintenance and custody proceedings between married persons even where they are instituted before an application for divorce is filed. Important amendments to the Act were introduced into the Commonwealth Parliament in October 1981. These lapsed with the dissolution of the Commonwealth Parliament in February 1983. New legislation the Family Law Amendment Bill 1983, was introduced into Parliament on 1 June 1983. If enacted this legislation will substantially expand the scope of the Act, allowing, for example, the Family Court to deal with property disputes between married persons independently of divorce proceedings.

2.11 The Family Court of Australia is a specialised federal court which has jurisdiction to hear and determine “ matrimonial causes” arising under the Family Law Act. ¹³The judges of the court are to be suitable “by reason of training, experience and personality to deal with matters of family law.” ¹⁴Counsellors and welfare officers are attached to the Court and have a wide range of functions, particularly in relation to custody proceedings. State Supreme Courts no longer have jurisdiction to hear cases arising under the Act although lower courts (Local Courts in New South Wales) may continue to hear certain kinds of cases, such as disputes relating to the custody or maintenance of children.

2.12 The Act adopts a novel approach to the adjustment of the financial relationship between the parties to a marriage. Among other things, the Act specifies detailed criteria to be applied in determining a claim by one party for a transfer of property or for maintenance. These criteria ignore questions of matrimonial fault and direct attention to such matters as the financial resources and needs of the parties, their custodial and other family responsibilities and their contributions to the acquisition conservation or improvement of property in dispute. The relevant provisions of the Family Law Act are examined in more detail in Chapter 6.

2.13 The divided constitutional and legislative framework governing Australian Family law has attracted increasing concern and criticism as the inconvenient consequences of the division have become apparent. For example, serious disquiet has been expressed by judges that in certain circumstances, no single court in Australia has jurisdiction to make orders with respect to the custody of all children living within a common household (Chapter 15). One important proposal to overcome the difficulties caused by the divided jurisdiction is that the States should refer to the Commonwealth power to legislate in areas of family law not already within the Commonwealth power. Such a reference of powers, it is argued, would enable the Commonwealth to avoid the worst consequences of the current constitutional position and adopt a more coherent and systematic approach to family disputes between persons other than married couples. As already noted (paragraph 1.1), our terms of reference note that we will take into account the proposed reference of powers to the Commonwealth. We, therefore, consider briefly the terms of the reference as they stood in May 1983, bearing in mind that the language of the proposed reference might well be amended as the result of further negotiations.

2.14 During the meetings of the Australian Constitutional Convention held from 1973 to 1976 consideration was given to matters that might be referred to the Commonwealth, with particular reference to family law. The 1975 Convention resolved that the topics of illegitimacy, adoption and maintenance (other than in divorce proceedings) should be the subject of a reference of powers. ¹⁵This resolution was affirmed at the 1976 Convention, which also rejected a proposal by the New South Wales Attorney General that the reference of power should cover property rights between parties “to a domestic relationship in the nature of marriage”. ¹⁶

2.15 The question of a reference of power was pursued by the Standing Committee of State and Commonwealth Attorneys-General. In April 1978 it was announced that the Standing Committee was considering a draft reference to enable the Commonwealth to legislate with respect to

At about the same time the Commonwealth Attorney-General stated that he would be prepared to recommend to the Government that it act on a reference from some States only. ¹⁸

2.16 Since 1978 discussions have been held on the proposed reference among a number of States and the Commonwealth despite repeated expressions of support for the proposal by the Family Law Council and other bodies, ¹⁹the reference of powers has not yet been implemented. The Family Law Amendment Bill 1983, to which we have referred, covers some of the ground of the proposed reference. ²⁰For example, the Bill if passed, would allow the Family Court to consider a claim for the custody or maintenance of a child of one party to the marriage (such as an ex-nuptial child), where the child has been a member of the marital household. It would also empower the Family Court to determine a property dispute between married persons independently of divorce proceedings. While the Family Law Bill takes a broad view of the Commonwealths constitutional powers, it does not attempt to covet maintenance and custody claims in respect of children living with parents who have never been married to each other.

2.17 The position at May 1983 is understood to be that several States are continuing to negotiate with the Commonwealth on the form of a reference of powers. A proposal has been drafted and submitted to the Commonwealth. The reference, as drafted, provides for an agreement under which each of the original States “undertakes to submit [to its Parliament] a Bill in substantially the form of the draft reference Bill attached to the agreement”. The draft Bill refers to the Commonwealth certain matters relating to property claims between married persons. It also refers legislative power on the following matters, to the extent that they are not already within Commonwealth power

The draft agreement provides that, as soon as practicable after each of the original States passes the reference legislation the Commonwealth must submit to Parliament legislation

2.18 The draft agreement also provides that the Commonwealth is not to submit legislation to Parliament or propose regulations in respect of a referred matter unless the legislation or regulations comply with the provisions of the agreement and have been agreed to by each State which is a party. The most significant requirements are the following:

2.19 Under the proposed agreement an original State ceases to be a party if it does not enact legislation in the form of the draft reference Bill within six months or such further term as may be agreed. A State may withdraw from the agreement by giving notice to this effect the draft reference Bill provides for the sections referring power to the Commonwealth to cease to have effect on a date fixed by proclamation. While the agreement is in force the Commonwealth and the participating States are to use all reasonable endeavours to secure the passage of legislation in the required form. However, the proposed agreement expressly provides that it is not intended to create “legal relationships justiciable in a court of law”. This indicates that the remedy for a State which considers that the agreement has been breached is to withdraw from the agreement and revoke the reference of powers as far as it is concerned.

2.20 If New South Wales and the Commonwealth become parties to the proposed reference of powers agreement, and New South Wales passes legislation in the form of the draft Bill, the principal consequences of relevance in the context of this Report will be as follows:

We consider further the significance of the proposed reference of powers in Chapter 15.

1. Under s.51 of the Constitution the Commonwealth Parliament was given power to make laws with respect to “(xxi) Marriage; (xxii) Divorce and matrimonial causes; and in relation thereto parental rights and the custody and guardianship of children.”

For analyses of the constitutional background to family law in Australia. see joint Select Committee on the Family Law Act- Family Law in Australia (1980). Vol.1. ch.2.

2. Except to the extent that the Commonwealth can affect them by its powers to legislate on other specific matters, such as social security and taxation (Chapter 4).

3. H A Finlay, “Defining the Informal Marriage”(1980) 3 University of New South Wales Law Journal 297. at p.302. refers to the judgment of Windeyer J in the Marriage Act Case (Attorney General for Victoria v. Commonwealth (1962) 107 CLR 529 at pp.576-577) as possibly lending colour to such a view. Professor Finlay adds that it is difficult to envisage the High Court as then constituted. “taking such a great leap forward”.

4. P E Nygh, “Problems of a Divided Family Law Jurisdiction”. Seminar Paper, 29 April 1982. See also J H Wade, “Void and De Facto Marriage” (1981) 9 Sydney Law Review 356, at pp.373-376.

5. For the formalities before Lord Hardwicke’s Act see Bromley’s Family Law (6th ed 1981), pp.35-36.

7. The doctrine of common law marriage survives in private international law, in that Australian courts may recognise an informal marriage contracted outside Australia, where compliance with the local law was impossible: Savenis v. Savenis [1950] SASR 304.

10. While the marriage power has been examined by the High Court on several occasions, the Court’s attention has never been drawn to the specific issue raised here.

12. See the definition of “matrimonial cause”, Family Law Act 1975, s.4(1). The constitutional validity of the general scheme of the Act was upheld in Russell v. Russell (the Family Law Act Case) (1976) 134 CLR 495: R v. Lambert, ex parte Plummer (1980) 55 ALJR 71.

13. The Family Court functions throughout Australia, except in Western Australia. That State has created its own Family Court under the Family Law Act 1975, s.41.

15. Proceedings of the Australian Constitutional Convention, Melbourne, 24-26 September 1975, xxvii, pp.101-104.

16. Proceedings of the Australian Constitutional Convention, Hobart, 27-29 October, 1976, pp.50 ff.

19. See, e.g., Family Law Council, Annual Report 1981-82, para.77; Joint Select Committee, note 1 above, vol.1, pp.23-24.

21. The term “children” is defined to mean persons under the age of 18 and in relation to maintenance, a person over that age who has special needs because of physical or mental handicap or because he or she is engaged in a course of education or training. See cl.3(2) of the draft reference Bill.