Published: 22 February 2017
Author: Ryan Carlisle Thomas

International Women's Day - Family law and women

This International Women's Day, we reflect upon the ways in which family law in Australia protects and empowers women. At the same time, we are equally reminded of ways in which women still face disadvantages in the family law process.

The introduction of 'no fault' Divorce

The Family Law Act 1975 was revolutionary in its introduction of 'no fault' divorce.

'No fault' divorce is the principle that the fault of a partner to the breakdown of a marriage is not relevant to getting a divorce.

The 'no fault' principle was important for the emancipation of women in abusive relationships. It removed the requirement for women to go through the difficult process of having to gather evidence and prove in Court that their husbands were abusive, alcoholic, insane, or having an affair in order to divorce them.

Today, the only ground required to obtain a divorce is proving that the marriage has broken down irretrievably, evidenced by 12 months separation.

Non-financial contributions considered in family law property settlements

Another way the Family Law Act 1975 has protected the rights of women is by placing value on the home-maker and parenting contributions to a relationship.

Today, women comprise 46.2 % of all employees in Australia, but only 24.8% of women work full-time. The workforce participation rate1 for women is 59.3%, while men have a workforce participation rate of 70.4%. The full-time average weekly earnings for women are also 16.2% lower than men.

While women are working at higher rates than ever before. These statistics show that there is clearly still gender inequality in employment and pay.

Part of the reason for this is that women have traditionally been given the role of homemaker and parent in relationships.

In considering how to divide the assets of a relationship upon separation, family law gives the same consideration to homemaker and parenting contributions as it would to financial contributions such as wages. This recognises the socio-economic factors that underlie most relationships. For example, if it was not for one party, usually the woman, staying home and looking after the children then the other party would not be able to earn as much and financially provide for the family.

In applying the family law framework to divide property, the Court will also consider the future needs of each party. This includes whether a party will be the primary carer of a child, or the likelihood that they will be able to re-establish themselves after separation.

The consideration of these factors in a family law property division goes some way to protect women financially in the breakdown of a relationship, and addresses the gender inequality in employment that overshadows our interpersonal and financial relationships.

Family violence not relevant to family law property settlements

A remnant of the 'no fault' divorce principle is that the fault of parties is not a relevant factor to financial matters under the Family Law Act 1975. This ensures that family law property division is a practical and objective exercise.

It is in this context that family violence is generally held not to be a relevant to family law property settlements.

Only in exceptional cases will such conduct be relevant. The Full Court of the Family Court of Australia in Kennon and Kennon (1997) FamCA 27 (“Kennon”) found that the only circumstances in which violence can be taken into consideration to a property division is where there has been:

1. a violent course of conduct;
2. during the marriage or relationship;
3. which has been demonstrated to have a significant adverse impact upon the party's ability to make contributions, or has made contributions significantly more arduous.

Proving a violent course of conduct, and the impact that conduct has had on a party's ability to make contributions, can be extremely difficult.

We know that women are, statistically, the largest group affected by family violence.

With the nuances and impact of family violence receiving wider recognition in Australia by State and Federal governments, it is perhaps time for this issue to be revisited by the courts.

Abuse all over again: cross-examination in family law matters

Currently in Australia, self-represented litigants can cross-examine each other in family law matters.

Commentators have noted that in cases where there is family violence, cross-examination of the person experiencing family violence by the perpetrator allows the abuse to continue inside courtrooms that should be offering safety and protection.

Calls to end this practice were made in 2015, and more recently by the Women's Legal Service at the Council of Australian Governments Family Violence Summit in Brisbane in 2016.

The United Kingdom has recently introduced legislation to stop perpetrators from being able to cross-examine the person they have abused in the family court. It is time for Australia to do the same.

Renewed consideration of these issues, together with consistent funding for legal services that work on the frontline of family violence against women, may address some of the issues women continue to face in relation to family law in 2017.

1. the sum of employed and unemployed divided by the total population.

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