Issue 55

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Family Matters No. 55, 2000

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Families, divorce and family law

Featuring latest Institute research - Families, divorce and family law

Articles in this issue of Family Matters are only available as PDF documents and do not meet the latest web accessibility standards. If you are unable to access any of the articles in this issue of Family Matters please contact us and we will endeavour to provide the article/s you need in a format that you can use.

Publication details

Family Matters No. 55
Published by the Australian Institute of Family Studies, March 2000, XX pp.
1030-2646 (print) 1832-8318 (online)

Copyright information


Families, divorce and family law: Introduction and overview

Grania Sheehan and Belinda Fehlberg

This is an overview article which introduces the central theme of this edition of Family Matters - the reorganisation of the family unit throughout the divorce transition. It also discusses the articles that address this theme, and identifies four distinct themes which arise from the articles - divergent (and gendered) pathways out of economic disadvantage post separation and divorce; tensions between the ideal of continuing, shared parental responsiblity and reality (in relation to financial support for young adult children, and post-separation parenting arrangements); and the practical impact on families of Australia's fragmented family law system.

About the Institute's Australian Divorce Transitions Project

The central purpose of the Institute's Australian Divorce Transitions Project is to improve understanding of how divorce can be made a functional transition for families in Australia. This overview of the project, which was conceptualised by the late Dr Kathleen Funder, sets out the aims of the project, and provides brief details of the project's three surveys - an 'adult survey', 'children's survey', and a 'violence survey'.



Financial living standards after divorce

Ruth Weston and Bruce Smyth

A decade ago, the Australian Institute of Family Studies found that mothers (and their children) were at an economic disadvantage after divorce compared with fathers. Now, recent Institute data shed light on the question of whether or not there remains a clear disparity between the post-divorce financial living standards of Australian men and women. This article discusses measuring financial living standards, and presents data drawn from the Australian Divorce Transitions Project, a random national telephone survey conducted in late 1997. As well as addressing the question of whether there is still a clear disparity between the post-divorce equivalent household incomes of men and women, the article also explores which family types are most likely to be in poverty post-separation.

Repartnering after divorce: Marginal mates and unwedded women

Jody Hughes

Past research by the Australian Institute of Family Studies found that women were less likely than men to remarry after divorce, and that women with fewer economic resources were more likely to remarry than other women. Have these patterns changed over the past decade? Based on data from the Institute's Australian Divorce Transitions Project, this article re-assesses the links between gender, economic resources and post-divorce repartnering. Discussion includes exchange theory, the current Australian context, influence of children on repartnering, and post divorce repartnering trajectories.

The division of matrimonial property in Australia: What is a fair settlement?

Grania Sheehan and Jody Hughes

The way property is divided on divorce is a key issue for families, and one that has attracted considerable debate over the past two decades. This article draws on data from the Institute's Australian Divorce Transitions Project to examine the extent to which the various contributions and needs specified by the Family Law Act contribute to the way property is currently divided in Australia. Where possible, comparisons are made between the way in which property is actually divided and women's and men's own views on what constitutes a fair division.

Family law in Australia: Bargaining in the shadow of the Constitution

Alastair Nicholson

The Australian Constitution divides responsibility for several areas of Australian family law between the States and the Commonwealth. The dual system created as a consequence, particularly in relation to child protection issues, provides opportunities for confusion and duplication. And what are the effects of Federalism on those exercising jurisdiction under the Family Law Act? The author spells out some of the existing problems, stating that it is distressing to document the fragmentation and lack of cohesion in an area such as family law where consistency and clarity are so greatly needed. He also notes that it is equally distressing that solutions to these difficulties, apart from band-aid measures, are not readily forthcoming. The article explains the relevant Constitutional issues and challenges, and discusses the Matrimonial Causes Act, the Family Court structure, referral of powers, cross vesting, child protection issues, and the role of protocols.

New employment policies, poverty and mothering: An international perspective

Maureen Baker

Divorce rates have increased dramatically since the 1970s, leaving more than ever mother-led families in need of government support. However, recent 'employability' policies have tended to overlook the changing nature of the job market and the impact of marriage breakdown on personal resources, and have treated beneficiaries as gender-neutral beings without family responsibilities. In this article, the inherent conflict between restructuring and new program needs is examined, with an emphasis on programs promoting greater employability for mothers. Both partnered and lone mothers are included in the discussion because global economic trends and new program initiatives influence both categories. The analysis focuses on three 'liberal' welfare states - Australia, New Zealand and Canada.

Child support for young adult children: Shifting boundaries

Bruce Smyth

Policy and practice governing the payment of child support after parental separation assumes as a general principle that a child is dependent until age 18. By contrast, government income support policy assumes that children are dependent until age 25 if they are studying full time. This inconsistency creates 'fuzzy' boundaries around income support for young adults who have not yet attained financial independence. What does this mean for children whose parents have divorced? This article considers this question, drawing on data from the Institute's Australian Divorce Transitions Project. A unique characteristic of the project is that information about child support was recorded for children 18 years or over, as well as for those under 18 years. Discussion includes the legislative framework, parents' awareness of eligibility, and parents' and children's views on financial support. The central finding of the paper is that children aged 18 years or over who are eligible to receive child support rarely do so.



Young adult moves: Leaving home, returning home, relationships

Christine Kilmartin

Young people are going about life in ways different from their parents: that is well understood. But do the rites de passage, the transition markers that formerly signalled adulthood, remain important? Data from a recent Institute study of young adults are presented in this article to cast light on some of those transitions and their relationship to the processes of leaving and returning home. The Young Adults' Aspirations Survey, conducted by the Institute in late 1998, is a national survey of 580 young adults aged 20-29 years, recruited using the Computer Assisted Telephone Interviewing (CATI) facility. The analysis shows that the paths to adult status, as measured by marriage, mortgage and parenthood, are anything but clear and singular, but remain desirable.



How children view their parents' divorce: Findings from a Norwegian study

Greta Sviggum

The Norwegian Children's Perspectives on Divorce study was designed to address two questions: How do children recollect their parents' separation - that is, the time when their father left home? How do children adjust to their reorganised family and everyday life, with their father and mother living in separate households? This article describes the study, and reports findings from in-depth interviews with fifteen children. Findings highlight the need for policy makers and divorcing parents to listen carefully to children in order to understand children's needs and the way children interpret the situation and their own role in it.

Marital conflict and adolescents

Patricia Noller, Judith Feeney, Candida Peterson and Sharon Atkin

Do adolescents respond differently to marital conflict in the family according to whether or not the conflict involves them? Are they able to distinguish between constructive and destructive marital conflict? This article discusses a recent University of Queensland Family Centre study that used an analogue methodology to explore adolescents' reactions to marital conflict. Participants in the Marital Conflict and Adolescents Analogue Study were from 55 intact families with at least two adolescent children between the ages of 12 and 16. Discussion includes ratings of typicality, stressfulness, likelihood of resolution, emotional reactions, behavioural reactions, sex differences in adolescents' responses, and differences between parents' and children's responses.



How partners in long-term relationships view marriage

Robyn Parker

As a prelude to a large scale study of relationships, the Australian Institute of Family Studies recently conducted a small pilot study of marriage. Potential participants were drawn from respondents in the Australian Family Life Course Study who resided in the Melbourne metropolitan area. Ultimately, 30 respondents participated, comprising 22 married, five de facto, and three remarried respondents. Following a brief overview of some of the research literature on the topic of marital quality, this article provides an overview of the Marital Perspectives Study, and summarises responses to the following discussion topics: meaning of marriage; expectations of marriage; influences on expectations; perceptions of young people's expectations of marriage; perceptions of young people's attitudes towards marriage; keys to long-lasting marriages; ways of supporting marriages.

Opinion: Legal recognition of gay and lesbian families

Jenni Millbank

This article suggests that lesbian and gay claims to relationship recognition are transforming both what we think of as family, and the domain of family law. While some have claimed that legal recognition of same sex couples forms a 'slippery slope' into immorality or social disintegration, reform in this area is increasingly being accepted as an equal and just treatment of all citizens by the law, argues the author of this article. She discusses and evaluates developments in Australia, and questions whether the law will broaden further, to be a more flexible and dynamic regime in the future, and whether family law will ever catch up.

Family law update: New legislative developments

Belinda Fehlberg

This overview of new legislative developments in the family law area begins with an overview of the Federal Magistrates Service, also known as the Federal Magistrates Court, designed to deal with 'less complex' family law (and other federal law) disputes. Next, the author discusses the Family Law Amendment Bill, with a focus on enforcement of parenting orders, and financial agreements. Some of the responses to the Bill by the Senate Legal and Constitutional Legislation Committee are reported. Finally, the author examines the area of property reform, discussing announcements made by the Federal Attorney-General in October 1999 on the outcome of consultations on the government's 1999 discussion paper, 'Property and family law: options for change'. Proposed changes to the property provisions of the Family Law Act are discussed, as are draft legislation to permit the division of superannuation following marital breakdown, and the announcement by the Attorney-General that he is keen to pursue a reference of power from the states to the Commonwealth in relation to de facto couple property disputes.