Legal Consequences and Responsibilities of Marriage Generally Generally

Legal Consequences and Responsibilities of Marriage

Generally �Generally the law does NOT intervene into marital and family life UNLESS there has been a breach of law �In family law matters this only USUALLY occurs when there is a breakdown in the marital relationship ie divorce �The other usual areas that the law becomes involved can include criminal matters (eg domestic violence) or children related matters (eg adoption)

Mutual Duties of Husband Wife �At law there are very few legally enforceable duties �There is no legal impediment to adultery �Nor is there a legal right to sexual relations in marriage �Although there are many social expectations of a married couple these are generally NOT reflected in the law

Maintenance is a financial payment from one spouse to another that contributes to the care and welfare of the spouse and/or the children of the marriage. Maintenance considerations are set out in s 72 of the Family Law Act

Section 72 72 Right of spouse to maintenance (1) A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2).

Maintenance �Maintenance is NOT automatic – the Court considers the NEED of the spouse seeking maintenance �Refer to the handout to discuss the “matters to be taken into account” in accordance with s 75(2) �The Federal Government has established the Child Support (Registration and Collection) Act which also establishes the Child Support Agency. Additionally the Child Support (Assessment) Act establishes formulas to calculate child support

Property �Traditionally the most valuable asset acquired during a marriage was the family home. �In more modern times this situation may be changing for some couples as a greater share of assets may be held in shares, investment portfolios, superannuation and the like �It is crucial to understand that marriage DOES NOT automatically change the nature of ownership of property (including assests)

Property �As with all matters the preference is for parties to come to their own agreement regarding property distribution decisions. �However, if it is not possible for the parties to agree, the Court adopts a four step process: � Estimating the value and nature of the assets and liabilities at the determinant time � Estimating the financial and non-financial contribution direct and indirect that each party made to acquiring and maintaining the assets � What adjustments need to be made for the likely future needs of the parties – refer to s 75(2) � Confirmation that the outcome is just and equitable in all the circumstances

Contract and Agency �Marriage does NOT automatically create a right in one spouse to act as the legal agent of the other �Marriage does NOT alter the right for an individual to enter into contracts with other persons, or for that matter their spouses �As a corollary to the right of individuals to enter into contracts as individuals spouses do not automatically become liable for the debts incurred by their spouse either �Finally spouses retain the right to individually sue or be sued in their own names, including suing each other

Compellability �A spouse is NOT compellable to give evidence against their spouse in any proceedings civil or criminal �However, this does NOT mean that the spouse cannot CHOOSE to give evidence

Wills & Estates �Marriage automatically cancels any previous wills UNLESS the will was made in contemplation of marriage SUCCESSION ACT 2006 - SECT 12 12 Effect of marriage on a will (1) A will is revoked by the marriage of a testator. (3) A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned.

Wills & Estates �If a person dies without a will (intestate) State laws apply �In NSW if the deceased leaves a spouse and no children, the spouse is entitled to the whole estate SUCCESSION ACT 2006 - SECT 111 Spouse’s entitlement where no issue If an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate.

In the event that an ‘eligible person’ is dissatisfied with the provisions of a will or their apportionment under the intestacy laws an application for further ‘family provision’ may be made SUCCESSION ACT 2006 - SECT 59 59 When family provision order may be made The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

SUCCESSION ACT 2006 - SECT 57 57 Eligible persons (1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person: (a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death, (c) a child of the deceased person, (d) a former wife or husband of the deceased person, (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.