Property Disputes between the Parties to a Marriage: Problems of Dual Jurisdiction

1983 ◽  
Vol 13 (3) ◽  
pp. 201-228
Author(s):  
Dorothy Kovacs
Keyword(s):  
Case Law ◽  
State Courts ◽  
Family Court ◽  
Forum Shopping ◽  
Supreme Courts ◽  
Legal Principles ◽  
Legal Proceedings ◽  
The Family ◽  
Before And After ◽  
Marriage Problems

When a marriage breaks down if the parties are unable to agree as to how their assets are to be divided their disputes may currently be heard in two different court hierarchies applying two disparate sets of legal principles. Inevitably this position leads to forum shopping and to the proliferation of legal proceedings which are not directed at resolving the substantive issue between the parties. It produces uncertainty, duplication, expense and delay. Although the problems associated with dual jurisdiction in matrimonial property disputes arise both before and after divorce, neither the Family Court nor the Supreme Courts have yet, it seems, formulated policies which ought to be pursued. Nor have they been consistent in their choice or application of the legal mechanisms that they enlist to break the deadlock. It is suggested here that both the federal and state courts should aspire to the centralisation of matrimonial property disputes, so far as is constitutionally feasible, within the Family Court. With that objective in mind the various legal devices currently invoked to resolve disputes about jurisdiction are critically reviewed. Some techniques are suggested to overcome problems which recur in the case law and a general approach is proposed which, it is hoped, will achieve consistency in the aims and in the legal principles adhered to by the courts in the future.

Custody Jurisdiction in the Family Court

1981 ◽  
Vol 12 (4) ◽  
pp. 281-307
Author(s):  
Owen Jessep ◽  
Richard Chisholm*
Keyword(s):  
Family Law ◽  
State Courts ◽  
Family Court ◽  
High Court ◽  
The Family ◽  
Difference Of Opinion ◽  
Considerable Confusion

Considerable confusion and difference of opinion exists as to the precise boundaries of jurisdiction in custody matters between Federal and State courts. This Article examines the main cases in which the scope of the Family Court's custody jurisdiction has been in issue, and reviews suggestions made to remedy the problems resulting from the division of jurisdiction. The authors argue for an interpretation of the relevant provisions of the Family Law Act 1975 (Cth) which is consistent with the trend of High Court authority as to the scope of the marriage power (section 51(xxi) of the Constitution), and which would remove much of the uncertainty concerning the Family Court's jurisdiction.

Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from State Supreme Courts

1978 ◽  
Vol 9 (3) ◽  
pp. 348-374
Author(s):  
Christopher D. Gilbert
Keyword(s):  
Subject Matter ◽  
Case Law ◽  
State Courts ◽  
State Supreme Courts ◽  
Privy Council ◽  
Supreme Courts ◽  
High Court ◽  
Federal Constitutional ◽  
Recent Statement ◽  
The Subject

The abolition of all appeals from the High Court to the Privy Council, coupled with the High Court's recent statement that it no longer regards itself as bound by Privy Council decisions, highlights the fact that appeals still lie, in many matters of State jurisdiction, from State Supreme Courts direct to the Privy Council. In this article, Mr Gilbert is primarily concerned to examine the extent to which section 106 of the Commonwealth Constitution may provide protection for these “direct” appeals. To this end, Mr Gilbert examines what case-law exists on section 106, and attempts to place the section in perspective in relation to the rest of the Constitution. The difficult (and largely unexplored) relationship between section 106 and section 51 is considered, to discover the possible reaches of Commonwealth legislative power with respect to the subject-matter protected by section 106. The position of “direct” appeals within the States’ constitutional structures is looked at, in order to determine the possible ambit of whatever protection is offered by section 106, and finally, Mr Gilbert analyses the recent comments by Mr Justice Murphy that the abolition of Privy Council appeals from the High Court has meant the consequential demise of “direct” appeals from State courts.

When the judge met P: the rules of engagement in the Court of Protection and the parallel universe of children meeting judges in the Family Court

Legal Studies ◽  
2019 ◽  
Vol 39 (2) ◽  
pp. 302-320
Author(s):  
Paula Case
Keyword(s):  
Decision Making ◽  
Decision Maker ◽  
Direct Contact ◽  
Integrated Approach ◽  
Case Law ◽  
Family Court ◽  
Decision Making Process ◽  
Therapeutic Benefits ◽  
The Family

AbstractThe importance of the subjects of litigation being able to tell their story directly to the decision maker is widely recognised as offering therapeutic benefits to all involved in the decision-making process. The Court of Protection makes life changing decisions for individuals on health and welfare matters, and it is clearly critical that the person at the centre of those proceedings (known as ‘P’) is given the opportunity for ‘direct engagement’ with the judge deciding their case. This paper interrogates the under-explored domain of the prevalence and forms in which ‘P’ has engaged directly with the judge (particularly by meeting with the judge without giving formal evidence) with the aid of a database of over 200 ‘health and welfare’ judgments. An integrated approach is adopted, drawing from these judgments, but also cross-referencing the far more advanced literature and case law on children meeting judges in the Family Court to explore some of the issues. This paper finds that the transplantation of practices from the Family Court to the Court of Protection has been problematic, has sometimes obscured P's direct contact with the judge in their own case, and jars with recent moves in the Court of Protection towards modelling empathetic judging and ‘standing in P's shoes’.

Qualitative Study of the Factors Affecting Marital Satisfaction from the Viewpoint of Divorced Women: Comparing the Attitudes of Women Before and After Marriage

2021 ◽  
Author(s):  
Yasser Rezapour Mirsaleh ◽  
Monireh Saghachi Firoozabadi ◽  
Raziyeh Amini
Keyword(s):  
Grounded Theory ◽  
Marital Satisfaction ◽  
Qualitative Study ◽  
Family Court ◽  
Factors Affecting ◽  
Emotion Control ◽  
The Family ◽  
Before And After ◽  
Effective Role ◽  
Theoretical Saturation

Aim: The purpose of the present study was to qualitatively study the factors on marital satisfaction from the viewpoint of divorced women before and after marriage. Methods: A qualitative study design based on grounded theory was used. Among the women who referred to the family court of Meybod city and were separated from their husbands, 12 women were selected to participate in the study. The sample size was selected based on theoretical saturation and data was obtained using a semi-structured deep interview. Findings: Results show divorced women before their marriage, either had specific and postmodern viewpoint toward marital satisfaction, or had idealistic and superficial viewpoint about marital life considering a minimal number of problems. After divorce, they believed in concrete and specific criteria for achieving marital satisfaction. The factors affecting marital satisfaction from the viewpoints of the participants before their marriage were classified in concepts such as idealism, superficial, attitudinal understanding, non-specific attitude; after divorce these factors were classified in concepts such as behavior and emotion control, personal and family fitness, rational-intellectualism, management of relationships, and accountability. However, before marriage, divorced women believed in logical criteria, which were retained after divorce. Conclusion: Based on the results, it can be concluded that change in postmodern, unrealistic, and idealistic ideas about marital satisfaction and the tendency to accept the realities of marital relationship can play an effective role in preventing divorce.

scholarly journals Transparenthood

2019 ◽  
pp. 1593
Author(s):  
Sonia Katyal ◽  
Ilona Turner
Keyword(s):  
Family Law ◽  
Case Law ◽  
Risk Of Bias ◽  
Equal Treatment ◽  
Family Court ◽  
Court System ◽  
Law System ◽  
Irreparable Harm ◽  
The Family ◽  
Lgbt Parenting

Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or visitation, we find that the transgender parent loses their bid, sometimes even losing their right to be recognized as a parent. This absence of equal treatment is striking and deserving of analysis, particularly given the law’s shift toward a standard that is supposed to minimize the risk of bias in LGBT parenting cases. In a striking number of cases, however, we found evidence of persistent bias regarding the gender identity and expression of the transgender parent—which we refer to as transition, contagion, and volition related concerns—that underscores the courts’ analysis. Normatively, this Article calls for a deeper interrogation of the ways in which family equality can be expanded—and even reoriented—to better protect the interests of transgender parents within the family law system. As a solution, we propose a way to balance courts’ broad discretion with the disproportionate risk that bias will infect the decisionmaking, resulting in irreparable harm to both the child and the parent.

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