Chapters

Property

Property belonging to a husband or wife before their marriage generally remains their individual property after marriage. This includes furniture, bank accounts, vehicles and other household goods. There is no legal requirement to transfer property into joint names. Property acquired after marriage also belongs to the person in whose name it was bought or who paid for it. It is only on the breakdown of the marriage that the Family Court of Australia or the Federal Circuit Court can make orders to vary the ownership of property of the husband and the wife.

When buying homes, units or land, it is common for the married couple to buy the property as co-owners. This gives security because it is difficult to dispose of co-owned property without the knowledge of the other, even if only one party provided the finance. In addition, the property of both parties may provide security for one or both of them for a mortgage or loan.

Sexual Relations

Marriage itself gives no right to a wife or husband to sexual intercourse. The old rule that a husband could not be convicted of raping his wife no longer exists.

Wills and Estates

Unless a will is made in anticipation of a particular marriage, marriage revokes a will. This is because the law presumes that spouses intend to provide for each other. Thus, the parties should make fresh wills after marriage to suit their intentions. Where a party dies intestate in Tasmania, the intestacy can create problems for the surviving spouse who must apply to the Supreme Court for Letters of Administration and appointment as executor over any assets.

Divorce also revokes a will made at any time. Unless a new will is made the estate will be inherited by the next-of-kin of the deceased. As part of the process of dissolving their economic partnership, separated or divorcing couples should make new wills. These wills should be expressed to be in contemplation of divorce so that they are not subsequently revoked on divorce.

Parties living in permanent de facto marriage relationships are strongly advised to make wills for each other, especially where other possible beneficiaries are alive, such as children to a prior marriage.

Family Planning

The addition of children to a marriage can put severe financial and emotional strain upon the relationship between parents. Contraception can be used to plan a family. The use of contraception is not against the law in Australia, and advice about it can be readily obtained from local family planning clinics, general practitioners and gynaecologists, or the family planning clinic attached to a public hospital.

Abortion is not available on demand in Tasmania but it is available in certain circumstances. The laws regulating abortion differ from state to state and changed in Tasmania in 2002. In Tasmania the law states that termination of pregnancy by the competent use of instruments in the hands of a medical practitioner is not an offence if the termination is legally justified. This means that two registered medical practitioners have certified in writing that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the woman than if the pregnancy was terminated. At least one of the doctors must specialise in obstetrics or gynaecology. The woman must give informed consent unless this is impractical. Informed consent can only be given where the woman has received counselling.

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