Starting a romantic relationship is an exciting time. The choice to take it a step further and commit to a long-term arrangement, either in a de facto relationship or in marriage, should be the decision of the couple.
But, until recently, marriage wasn’t an option for same-sex couples in Australia. Thus, the debate for marriage equality: giving same-sex couples legitimate choice about how they arrange their relationships.
Marriage equality is a hugely positive step forward, not only from a social and human rights perspective but also from a family law perspective.
Even though the recent census showed fewer heterosexual couples in Australia are choosing marriage (47%) and more Australians of both heterosexual and same-sex relationships are opting to cohabitate (10%), under the current laws, there are differences, with marriage providing more legal benefits to the couple than a de facto relationship.
What is a de facto relationship?
A de facto relationship is defined in Section 4AA of the Family Law Act 1975 as a heterosexual or same-sex couple living together on a “genuine domestic basis”.
But, it’s not that simple.
The laws concerning de facto couples vary from state to state and are not recognized overseas.
Furthermore, what constitutes a de facto relationship also differs based on the purpose.
For example, Centrelink deems a couple to be in a de facto relationship from the moment they start living together. The Department of Immigration requires a couple to live together for one year unless they have a child together.
And according to Family Law, a couple must live together for at least two years, unless they have a child together, have a registered relationship or have made substantial financial contributions for the benefit of the other person.
Whereas, marriage is accepted and recognised nationally and overseas, regardless of meeting any such criteria.
Additionally, for a de facto partner to have a right to claim a share of the estate of their former partner, the Supreme Court requires the de facto relationship to be ongoing at the time of death. A married spouse, however, has the right to make a claim irrespective of the state of the relationship.
The legal difference between marriage and de facto relationships
Since March 2009, in the eyes of the law, married and de facto relationships have been treated largely the same. But there are differences under the Family Law Act regarding property settlement and spousal maintenance applications.
Property settlement is the division of marital assets as part of divorce proceedings, and spousal maintenance is financial support paid by the former spouse to the other spouse when he or she is unable to adequately support themselves.
For a de facto couple to seek property settlement or spousal maintenance, they may have to meet specific criteria to prove the status of the relationship once again. The only requirements for married couples are to have been married.
The de facto couple must file proceedings within two years of the relationship ending, or they may lose the right to claim, whereas married couples have one year from the divorce becoming final.
Which is the better happily-ever-after?
The most significant difference between married and de facto relationships is that de facto couples may have to provide significant proof of their relationship.
This requires divulging personal and financial details of their shared life, including their living arrangements, whether there are children, their sexual relationship, the extent of financial dependence, a mutual commitment to a shared life and the public reputation of the relationship.
The differences highlight the time, money and emotional energy needed to defend a de facto relationship.
And while there is no happily-ever-after guarantee in a committed relationship, the irrefutable nature of marriage automatically affords couples greater legal security.
Which is all the more reason to allow all couples – heterosexual and same-sex, the right to choose the type of relationship that works for them.
*Andrew Corish is an Accredited Specialist in Family Law with Corish & Co Specialist Family Lawyers North Sydney. He is trained in Family Dispute Resolution.