Category: The Common Law

It Depends – Does marriage matter in family law financial cases?

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In this edition of ‘It depends’, special counsel Craig Turvey talks about whether marriage matters in family law financial cases.

Video transcript

Welcome to this edition of It depends. Today I’d like to talk about whether marriage matters in family law financial cases.

Family law property settlement or maintenance applications

Under the Family Law Act, you can make a property settlement or maintenance claim against someone if you’ve either been married to them or you can satisfy the court that you’ve been in a de facto relationship. Now, if you don’t fall within either of those two categories and you’ve been in a relationship with someone and you’re seeking financial recourse against them, you might not have any alternatives. So, it’s really important that you try and figure out and get advice as to whether you fit within either category or whether there’s perhaps nothing that can be done for you legally.

Does marriage matter?

It depends. If you’re married, it’s really easy to prove. You’ve got a marriage certificate. You can just attach that to your application. You don’t have any other evidentiary issues. And under the Family Law Act, it doesn’t have to be a marriage in Australia. It could be marriage in any other country. De facto cases are quite different however. Most people don’t register de facto relationships. So, what that means is that there’s not one magical piece of paper that you can wave around that will say, I have been in a de facto relationship with this person. It means that you might have some problems in terms of making a claim. There’s lots of people who think under the Family Law Act they’re in a de facto relationship when they probably aren’t or vice versa. The Family

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Why all eyes should be on the Supreme Court of Canada: Families await key child welfare decision

The Supreme Court of Canada is deciding on the constitutionality of Bill C-92. Photo by Derek Tsang

Indigenous people across the country are keeping a close eye on a pending top court decision which could have far-reaching impacts on First Nations, Métis and Inuit sovereignty over their own child welfare laws.

At the beginning of December 2022, the Supreme Court of Canada heard an appeal involving the province of “Quebec,” which has been challenging the constitutionality of the federal Bill C-92.

The bill opens a door for Indigenous nations to develop their own child welfare laws and policies, an area that’s typically governed by the provinces. However “Quebec” is arguing that the federal government overstepped its jurisdiction by allowing Indigenous laws to override existing provincial legislation.

The case was escalated by the federal government after the Quebec Court of Appeal ruled in February 2022 that two sections of the act are not constitutional.

Kate Gunn, a partner at First Peoples Law and an adjunct professor in the University of British Columbia’s Faculty of Law, says that this decision is important because it will further define Indigenous Peoples’ inherent law-making authority over child and family services.

“There are very important aspects to this case around how constitutionally-protected rights for Indigenous people are defined,” she says.

Gunn says that if the Supreme Court of Canada were to agree with the arguments brought forward by “Quebec,” it would have serious negative impacts on Indigenous Peoples across “Canada.” However, if the court rules against the province, it could positively impact how Indigenous laws are respected in future cases.

“The decision will clarify whether and how the court will recognize and protect Indigenous Peoples’ ability to regulate child and family services based on their own laws and cultures,” Gunn wrote in an article before

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Three is a magic number – family law and Throuples

In 1973, Bob Dorough told us in his Schoolhouse Rock hit that three is a magic number. In that very same song, he also told us this:

A man and a woman had a little baby Yes, they did They had three in the family And that’s a magic number

It’s clear that 50 years later, the modern family has evolved dramatically from Mr Dorough’s presentation and increasingly, people of all generations are throwing off the perceived shackles of traditional family units and embracing an alternative arrangement known as Throupling.

It must be confessed that ‘Throuple’ is a word not previously written by this author.

Alongside very many articles about alleged celebrity Throuples, a quick Google search reveals a number of definitions varying in complexity and, well, explicitness. But I think for the purpose of this short post we can settle on this:

A committed romantic relationship between three people.

But what of family law and a Throuple?

As anyone who practices in this field would expect, like Blackadder’s asthmatic ant carrying heavy shopping, the law is struggling to keep up: it simply does not adequately reflect the myriad of different family structures we see now, Throuples included.

Here are just a few family law considerations anyone in a Throuple should have in mind:

In this country, a Throuple cannot all marry each other or form a civil partnership. But you knew that already. Having more than one spouse is permitted in some countries and known as polygamy, but such a marriage is not recognised in England & Wales. The Throuple itself would have no legal relationship akin to a marriage or civil partnership.

If none of you are married, no one would have any financial claims as of right against the others in the event of a separation and

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The Global Campaign for Equality in Family Law* supports Indian Muslim women’s call for legal equality on child marriages in India

The Global Campaign for Equality in Family Law is a campaign led by eight women’s rights organisations, with the goal of equality for women and girls and other marginalised groups under law, policy, and practice in matters relating to family in all their diverse forms, regardless of religion and culture. The Campaign also seeks to amplify national-level efforts pushing for reform of family laws, policies, and practices that discriminate against women and girls. This statement is in light of ongoing campaigns by Indian Muslim Women’s Movement seeking legal equality on cases of child marriage in India. 

There has been a longstanding call by Bharatiya Muslim Mahila Andolan (BMMA) (Indian Muslim Women’s Movement) for justice and equality in marriage and family matters. Most recently, BMMA has been urging that the provisions of the Prohibition of Child Marriage Act (PCMA), 2006, which prohibits marriage before the age of 18 for girls, must be unequivocally and unambiguously applied in all cases relating to child marriage affecting girls and women from the Muslim communities across India. 

On January 13, 2023, in response to a petition filed by the National Commission for Protection of Child Rights (NCPCR) and in advance of its final decision, the Supreme Court of India annulled the precedential value of a Punjab and Haryana High Court order that had validated the marriage of a 15-year-old Muslim girl. The marriage was sanctioned on the premise that the ‘Muslim personal law’ deems the marriage of a girl who is willing and who has attained puberty valid, in violation of international law and the PCMA. 

The Global Campaign for Equality in Family Law coalition is greatly encouraged by the fact that the Supreme Court has agreed to consider the NCPCR petition on this crucial equality issue, and we hope that it results in a

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Reflections on menopause and family law in a week when the Government dismissed the opportunity to provide further protections for menopausal women

This week the Government dismissed the opportunity to implement the recommendations of a report by the Women and Equalities Committee aimed at improving the work and health outcomes for menopausal women. The recommendations of that Committee included the introduction of menopausal leave pilots and also making the menopause a protected characteristic under the Equalities Act. Instead, on the issue of menopause leave the Government intends to encourage employers to implement their own policies, and its overall position in response to the report was condemned by the Committee’s chairman Caroline Nokes as a “a missed opportunity to protect vast numbers of talented and experienced women from leaving the workforce”.

As a woman of a certain age and a family lawyer, I have a vested interest in this issue being taken seriously across the board. According to the Law Society the first woman became a solicitor in 1922 and today women make up 53% of the profession in England and Wales. A survey conducted by IPSOS Mori for the British Menopause Society, found that more than a third of respondents said their menopause had impacted their work life.

There has recently been a slew of articles and surveys dealing with the impact of menopause/perimenopause on various aspects of women’s lives. From statistics illustrating which symptoms affect women the most (spoiler alert: it’s not just about the hot flushes), to the impact of those symptoms on women in the workplace, there is now so much more information available about something which affects us all.

Whether we are women undergoing “the change”, or friends and family standing by in sometimes dumbstruck horror at a loved one suffering so, we will all benefit from understanding a great deal more about this subject.

My interest in this topic however extends beyond what is on

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