In Australia, both marriages and de facto relationships are legally recognised, particularly in relation to property settlement, parenting arrangements, and spousal maintenance. However, key differences between these two relationship types can significantly affect the rights of the parties—especially upon the breakdown of a relationship. This article outlines the legal frameworks governing marriages and de facto relationships and highlights important distinctions relevant to individuals and legal practitioners.
Legal Definitions
Marriage
Under the Marriage Act 1961 (Cth) (section 5), marriage is defined as “the union of 2 people to the exclusion of all others, voluntarily entered into for life”. A valid marriage must be legally solemnised by an authorised celebrant and properly registered.
De Facto Relationship
A de facto relationship is defined in the Family Law Act 1975 (Cth) (section 4AA) as a relationship where two people live together on a genuine domestic basis but are not legally married or related by family. Determining whether a de facto relationship exists involves consideration of various factors, including:
- the duration of the relationship;
- the nature and extent of common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence;
- the ownership, use, and acquisition of property;
- the degree of mutual commitment to a shared life;
- whether the relationship is registered under applicable state or territory law;
- the care and support of children; and
- the reputation and public aspects of the relationship.
Notably, full-time cohabitation is not a prerequisite in establishing a de facto relationship. This was confirmed in the case of Jonah & White [2011] FamCA 22 which upheld that parties sharing a common residence is only one of many factors to be taken into account and that a de facto relationship may be established in circumstances where the parties reside at separate residences.
Legal Recognition and Time Limitation Periods
A marriage is legally recognised upon completion of a valid solemnisation and registration.
In contrast, a de facto relationship usually requires a qualifying period of at least two years of cohabitation to be considered a de facto relationship under the Family Law Act, unless one of the following exceptions under section 90SB of the Family Law Act applies
- there is a child of the relationship.
- the party applying for the order or declaration made substantial contributions, and a failure to make the order or declarations would result in serious injustice; or
- the relationship is registered under applicable state or territory law (e.g., under the Relationships Register Act 2010 (NSW)).
Property and Financial Matters
Both married and eligible de facto couples are subject to similar property division principles under the Family Law Act. In doing so, the Court will assess:
- financial and non-financial contributions;
- homemaker or parenting contributions; and
- future needs of each party.
However, a key difference between a marriage and a de facto relationship is that the time limitation period for bringing an application in the Federal Circuit and Family Court of Australia differs as follows:
- Married couples must initiate proceedings within 12 months of the date of the divorce coming into effect.
- De facto couples must initiate proceedings within two years of the date of separation.
There is more ambiguity surrounding establishing the existence of a de facto relationship, , particularly in short relationships or situations where financial affairs were kept separate. This uncertainty may cause confusion surrounding whether or not a de facto relationship existed as well as raise issues regarding the date of separation and therefore when the time limitation period starts and expires.
Spousal Maintenance
Both married and eligible de facto partners may seek spousal maintenance if they are unable to support themselves adequately and the other party has a reasonable capacity to pay. Section 72 of the Family Law Act highlights that a person may have an obligation to support their estranged partner in circumstances where they have care of a child of the relationship under the age of 18, due to age, physical or mental incapacity to obtain employment or for any other adequate reason.
However, there is no automatic entitlement to spousal maintenance as claims are assessed on a case-by-case basis. The same time limitations for property applications also apply to spousal maintenance applications for married and de facto relationships.
Parenting Arrangements
When it comes to parenting matters, there is no legal distinction between married and de facto parents. The Family Law Act applies uniformly to all children regardless of their parents’ relationship status, with the best interests of the child remaining the paramount consideration under section 60CA.
Inheritance and Succession
Under state-based succession laws (e.g. Succession Act 2006 (NSW)), de facto partners can inherit in intestacy (where there is no will), provided they can establish the existence of the relationship. Evidence may include:
- proof of cohabitation;
- proof of financial interdependence; and
- affidavits from friends or family.
For married spouses, inheritance rights are more straightforward due to the formal legal recognition of the relationship. However, formal registration of a de facto relationship can strengthen inheritance claims.
Superannuation and Taxation
Superannuation death benefits may be payable to either a spouse or a de facto partner as dependants under the Superannuation Industry (Supervision) Act 1993 (Cth) (sections 10 and 10A).
Similarly, both types of partners may qualify as dependents for tax and Centrelink purposes.
Termination of the Relationship
A marriage must be legally dissolved through divorce in the Federal Circuit and Family Court of Australia (FCFCOA). To be eligible to apply for divorce, the parties must have been separated for not less than 12 months, the relationship must have irretrievably broken down, and there must be no likelihood of cohabitation being resumed (Family Law Act [section 48]).
On the other hand, a de facto relationship may end by mere conduct when parties cease their domestic partnership. Separation for de facto relationships does not require any legal action, registration, or documentation for it to have occurred. However, the date of separation is key to being informed about the start of the time limitation period as well as the existence of a de facto relationship. Registration of De Facto Relationships
In NSW, couples may register their de facto relationship. Registration provides a form of legal recognition and can:
- waive the two-year period required for a couple to have lived together to amount to a de facto relationship; and
- facilitate proof of the relationship for migration or legal purposes.
Conclusion
While de facto relationships and marriages are treated similarly in many aspects under Australian family law, key differences, including legal recognition and the time limitation period, can significantly impact legal rights.
Registering a de facto relationship and seeking legal advice early can help mitigate risks. For legal practitioners, a strong understanding of these nuances is essential when advising clients on matters of separation, property division, spousal maintenance and succession planning.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
Whether you are entering a relationship, contemplating separation or facing a legal dispute, understanding how the law distinguishes between marriage and de facto relationship status is essential to safeguarding your interests. At Ramsden Family Law, our experienced team offers clear and strategic advice tailored to your situation.
We can advise clients about their eligibility in relation to filing an application for divorce, claiming a property settlement, spousal maintenance, or other matters arising from the breakdown of their relationship. If you are unsure where you stand or how best to protect your future, reach out today for a consultation. Our team is here to support you every step of the way.
The content of this article is intended to provide general guidance on the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
