ABSTRACT
This chapter looks at family law developments in Australia and New Zealand. These are both common law jurisdictions, for the reasons given in the text that follows.
AUSTRALIA
Australian family law is based primarily on the English common law system not least because of its history and its British roots, and is traditionally classified as a common law jurisdiction. This means that the laws of settlements peopled by settlers from the United Kingdom were predominantly grounded in case law (mainly English law) rather than in comprehensive codes or statutes. From Australia’s federation in 1901 until the mid-twentieth century, marriage and divorce laws were inherited from England and ‘reflected English law as it developed over that period’ (Harrison, 2002, p. 2). Between 1857 and 1864 all colonies except New South Wales adopted the English Matrimonial Causes Act 1857. But, as Harrison points out, the laws of the colonies, and, after federation, the States, developed somewhat differently in the decades that followed, particularly in formulating different grounds for divorce. The Commonwealth Constitution of 1901 enabled the Commonwealth to legislate in respect of ‘marriage; divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants’. But it was not until the Matrimonial Causes Act 1959 that ‘the first comprehensive exercise by the Commonwealth of those powers’ was undertaken, which was followed in 1961 by the Marriage Act (Harrison, 2002, p. 3).
