According to the Australian Institute of Family Studies, there’s been a steady decrease in the number of marriages in Australia and an increase in cohabitation (on an unmarried basis, as a de facto married couple). Despite this, most Australians (65.9%) feel that marriage is not an outdated institution. Many still want to marry, while others are happy to live together permanently.
If you are in a committed relationship, you may question whether to marry or cohabit as ‘de facto partners’. Which is right for you, and what are the legal implications?
The definition of marriage vs. de facto relationship
Under Australian law, a marriage is defined as the union of two people to the exclusion of all others voluntarily entered into for life.
A de facto relationship is defined as living with a partner you are not married or related to on a genuine domestic basis.
Proving you are married is as simple as producing your marriage certificate. Proving you are in a de facto relationship is more complicated. For financial claims following the breakdown of that relationship, you are likely going to have to provide evidence that you’ve lived with your partner, or at least not apart on a permanent basis, for at least two years. Proof can include (non-exhaustively):
- Joint property ownership or lease agreements.
- Joint bank accounts.
- Household bills in your names.
- Mail addressed to each of you at the same address.
You can circumvent the two-year rule if you have registered the relationship, have a child together or made a substantial financial contribution to the relationship which it would be unjust not to recognise.
Do de facto couples have the same legal rights as married couples?
The Family Law Act tries to afford everyone in a genuine de facto relationship, whether heterosexual or same-sex, the same rights as married couples when it comes to property and financial settlements, and maintenance. In almost all ways, the rights of de facto couples mirror those of married couples when it comes to finances after separation.
Before the Family Law Act, the law around de facto relationships differed from state to state. Depending when the jurisdiction in relation to de facto relationships of particular states was moved to Commonwealth jurisdiction (in the Family Law Act), some couples may still have rights under ‘old’ state based de facto relationship legislation if they separate. Consult an experiencedfamily lawyer if you’re unsure of your rights in a de facto relationship.
Marriage vs. de facto relationship: what to consider
Marriage is indisputable, as there is a ceremony which makes it a matter of fact. If you get validly married, the law immediately recognises the union.
For instance, you may more easily be granted Power of Attorney over your spouse’s finances and legal affairs should they become ill or unable to make decisions on their own.
Depending on the circumstances and where you live, you may automatically be entitled to all or part of your spouse’s estate if there is no Will. This may not be the case in a de facto relationship.
If you choose not to marry, here’s what you can do to safeguard yourself in a de facto relationship:
1. Register the relationship. This places the fact of being in a relationship at a point in time beyond doubt, and that may help secure many of the same rights as a married couple.
2. Draw up a financial agreement. A financial agreement outlines how your finances and property will be settled should you and your partner ever separate. Naturally, you will hope that never occurs, but a financial agreement covers that situation, just in case.
3. Include each other in estate planning. Make sure there is a Will that specifies how your respective estates should be administered and distributed, and that you’ve considered nominating each other as the beneficiary for superannuation funds, life insurance and other investments.
Whether you choose to marry or not, it’s wise to discuss these matters with your partner and take steps to protect yourself legally.
BGM Family Lawyers is a family law firm serving Brisbane and the Gold Coast. Contact us if you need help with a financial agreement. Email info.bgm@bgm.legal or call 1300 BGM LAW.
