In the Australian Family Law system, the rights and interests of women have come a long way to establish a well-rounded, balanced framework for family law.
Historically, gendered assumptions underpin much of our law. Until very recently the relative positions of women and men in family law were quite formally asymmetrical. In the 19th century, women in Australia surrendered all of their property and wages earned to their husbands once married. Husbands were the sole guardians of all children and could take them away from their mothers at any time, for any reason. And a woman could not file for divorce until the 1870s.
Even into the 20th century things remained unequal. Prior to the introduction of The Family Law Act 1975, if you wanted a divorce in Australia, you had to prove that your spouse was at fault. Grounds included desertion, adultery, cruelty and habitual drunkenness, among others. Things often got messy and private investigators were usually involved.
Worse, the onus was on the woman to gather evidence and prove her claims before she was allowed to divorce her spouse. This made the process particularly difficult for a woman in an abusive or coercive relationship.
Fortunately, times have changed. There are many specific gender equality laws in Australia with the goal of ensuring that everyone is treated fairly. Australia signed the Convention on the Elimination of all Forms of Discrimination Against Women in 1983. This outlines the rights women deserve across the political, legal, education, health, employment, marriage, housing and family relationships sectors. Australia then introduced the Sex Discrimination Act 1984, federal legislation that prohibits discrimination based on sex, sexual orientation, gender, relationship status, pregnancy, breastfeeding and more.
Australia has also passed the Workplace Gender Equality Act 2012 which replaced the Equal Opportunity for Women in the Workplace Act 1999. This legislation aims to promote equality for all in the workplace.
Today, Australia’s family law system formally recognises women’s roles within the family unit as equal to that of men. In a property settlement, for example, the courts recognise non-financial contributions within a relationship. This means they take into account the caregiving and other duties that receive no monetary payment, yet contribute to the effective working of a household. This is important because while women’s rights under the law have increased significantly over the last 50 years, it is still the case that more female parents of children under 15 years participated in childcare activities than males.
Even superannuation splits are possible in some cases, where one partner has super and the other does not. Overall women are recognised as equal partners in domestic and financial relationships, a huge move forward for equality.
Whilst the legal framework has moved and changed with the times, our social framework is still trailing behind. This is blindingly apparent in many aspects of women’s lives, from the gender pay gap to issues around sexual harassment and domestic violence. Women and their allies have said enough is enough, and are making their voices heard.
This is not to say men don’t experience domestic violence or discrimination, but, statistically, it is women who bear the brunt of these situations more often. And when you look at history, you can see how gender gaps have been created and even encouraged across many generations.
This holds true for our Family Law system. As the authors of Broken: Children, Parents and Family Courts, Catharine Lumby and Camilla Nelson explain, ‘Let’s face it: it is women, along with their children, who are most likely to suffer at the hands of the system in financial and emotional terms.’
Even within the legal profession, some practitioners still maintain the “tired” patriarchal views that seep through communication exchanges. Surprisingly though, it is not just from older generations. It saddens me to think that this is still the case – however, I have the trust and confidence in the law, and take comfort that no such views have a place in the Courts.
Whilst the law may be progressive, change comes from within. As humans, we need to educate each other and recognise the discrepancies and abuses of power that still exist within our society - including domestic violence by or to either gender! Tolerance is not acceptable – we need to change the story. To my colleagues and associates, do not bypass the “casual sexism” that can be presented by clients… and let us definitely not perpetuate it! It is our job as family lawyers, to educate our clients on the law and what is fair and realistic based on what is written. It is not our role to turn a blind eye…
As a family lawyer, my job and my goal is to be a voice and support within the legal system for all people. I will always strive to protect and raise awareness around domestic violence, complex family law and assault issues. And I will always protect my clients against issues of gender inequality and chauvinism if and when they arise. If you need support, get in touch. I’m here to help. We are in this together.
*Disclaimer*
The information contained in this article is for general guidance and information purposes only and should not be used as a substitute for consultation with professional legal advisers.
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