The Law Treats De Facto Partners Differently to Married Couples

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It is frequently claimed by opponents of same-sex marriage that homosexual couples already enjoy the same legal rights as those who are married.

But that is not actually the case – there are a range of laws which clearly distinguish between de facto couples and married ones, often making it easier for the latter to assert legal claims.

Proving the existence of a de facto relationship

Those who consider themselves to be in a de facto relationship – such as a same sex couples – may need to jump through evidentiary hoops to prove the very existence of that relationship, and any rights and obligations that flow.

By contrast, a marriage certificate in and of itself constitutes proof of marriage.

A de facto relationship is defined by section 4AA of the Family Law Act 1975 as one where the parties:

(a)  are not legally married to each other; and

(b)  are not related by family, and

(c)  have a relationship as a couple living together on a genuine domestic basis.

Unlike the issuance of a marriage certificate in the context of a marriage, there is no moment defining the existence of a de facto relationship. Rather, a court will look at a range of factors when determining whether such a relationship exists, including.

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children; and
  • the reputation and public aspects of the relationship

For many who are in a same sex relationship (and any relationship for that matter), it is preferable to have certainty in respect of the association’s legal status.

Differing criteria

Adding to the inconsistency and uncertainty is the fact that different organisations apply different criteria to determine the existence of a de facto relationship, and the tests can also differ depending on the context of the person’s situation or request.

For instance, Centrelink considers a couple to be ‘de facto’ from the moment they start living together, whereas for the purposes of migration law it is after 12 months of cohabiting, unless the couple has a child together or if de facto relationships are illegal in a party’s country of origin.

There are also different rules which apply to adoption, IVF and a range of other areas strictly regulated by law.

Succession law

An important area where relationship status can significantly impact upon the outcome is succession law; which deals, among other things, with the distribution of property after death.

In the absence of a will, a married spouse will automatically have rights to property in all Australian jurisdictions, whereas de facto spouses will need to prove a range of matters under the applicable family provision legislation before they are able to gain ownership to what was –for all intents and purposes – joint property. Family provision legislation also makes it easier to challenge a de facto partner’s claim, whether or not a valid will is in place.

In many parts of Australia, a new marriage nullifies any existing will. However, this is not the case when it comes to a de facto relationship.

Like in many other areas, a marriage provides greater legal certainty in the context of succession than a de facto relationship does.

Same-sex marriage survey

Support for same-sex marriage has fallen ahead of a national survey on the issue.

The proportion of voters who support same-sex marriage now stands at 57 per cent, compared with 63 per cent in August and 62 per cent in September last year.

The No vote has increased to 34 per cent, up from 30 per cent in August and 32 per cent a year ago. About nine per cent of people are uncommitted.

And with the national survey on the horizon, it’s still anyone’s guess which way our predominantly heterosexual population will ultimately vote.

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Zeb Holmes

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.

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