Only the second Prime Minister in Australian history

who was not married when taking office

Australia has a new Prime Minister overnight, and naturally there is a new “First Lady” as well. But hold on — does she even count as the “First Lady”?

The new Prime Minister, Anthony Albanese, divorced his former wife in 2019 and met Jodie Haydon in early 2020. According to Wikipedia, the two “became partners” in 2021, and they are not currently married. General news media tend to describe Jodie Haydon using the word “partner”.

Worldwide, it is uncommon for a head of state to be unmarried, and it is even rarer in Australia. Anthony Albanese is only the second in Australian history. The other well-known example is the country’s first female Prime Minister, Julia Gillard, and her then-partner Tim Mathieson.

Partner

That said, in Australia — and across most Western countries — introducing someone as “my partner” is very common, and it is not unusual for a couple to choose to stay together without registering a marriage. What’s more, Australia’s legal system, health system, and every other facet of society formally recognise the de facto relationship.

Many people first encounter the concept of a de facto relationship after moving overseas — sometimes because of immigration, sometimes through friends around them. Although a de facto relationship is not marriage in the traditional sense, under Australian family law a de facto relationship has the same legal effect as a registered marriage, and the rights each party has over joint property are essentially the same as those of a married spouse. Moreover, you do not need to register a cohabitation certificate to be considered in a de facto relationship.

Below, we take a closer look at legal marriage and de facto relationships.

1.

Legal Marriage

This is what people often refer to as “that piece of paper”. In Australia, the Marriage Act 1961 defines marriage as “the union of two people to the exclusion of all others, voluntarily entered into for life”. A valid Australian legal marriage is recognised internationally.

A valid legal marriage in Australia requires:

1. The couple may marry between 1 month and 18 months after lodging the Notice of Intended Marriage form.

2. The marriage must be solemnised by an authorised celebrant, who may be a minister of religion, a civil celebrant, or a state or territory officer.

2.

De Facto Relationship / Cohabitation

A de facto relationship is defined in the Family Law Act 1975. Broadly speaking, a person is considered to be in a de facto relationship with another person if:

1. The two people are not legally married to each other; and

2. The two people are not related by family; and

3. Having regard to “all the circumstances of their relationship”, they have a relationship as a couple “living together on a genuine domestic basis”.

How to determine whether a de facto relationship exists

Under family law, the court will generally look at a range of circumstances — including the duration of the relationship, whether the parties live together, whether their finances are shared, and how the people around them view the relationship — to decide whether it is a de facto relationship. As for the duration, the relationship is generally required to have lasted more than 2 years; however, the 2-year requirement does not apply if the couple has children or has registered the relationship.

In immigration and visa applications, we generally say that living together for more than 12 months will usually be treated as a stable de facto relationship by the Department of Home Affairs even without a registered de facto relationship — though this still depends on the circumstances.

Under Australian family law, a de facto relationship has the same legal effect as a registered marriage, and the rights and obligations flowing from it are similar to those arising from a marriage.

Let’s focus on the joint-property issue.

3.

Joint Property in De Facto Relationships / Cohabitation

Among the many de facto relationship enquiries NS Legal receives, a large share involve property. This article focuses on that point.

With respect to joint property, if the relationship is legally recognised as a de facto relationship, the rights each party has over joint property are not materially different from those of a spouse in a legal marriage.

Because Australia does not distinguish between pre-marital and post-marital property, as soon as a couple enters into a de facto relationship or a legal marriage, all assets — whether held in one person’s name or jointly, whether in Australia or overseas — become joint property.

To genuinely avoid future disputes and complications, parties in a de facto relationship can also sign a financial agreement, either before moving in together or during the relationship.

Compared with going through the courts, a financial agreement is a more cost-effective and straightforward way to divide property. It clearly sets out each party’s assets and liabilities and specifies how property will be divided if the couple separates. This not only avoids unnecessary disputes later, but also protects the interests of both parties.

If we have to point out the differences, then…

Some differences between a de facto relationship and a legal marriage

Relationship breakdown?

If the parties are in a legal marriage and wish to divorce, they must be separated for at least 12 months before applying for divorce. Once a divorce order is made, the parties have 12 months from the date of that order to commence property settlement proceedings under the Family Law Act. In other words, within one year of finalising the divorce, the parties must bring any property and/or spousal maintenance proceedings before the family court.

If the parties are in a de facto relationship, they have 2 years from the date of separation to commence proceedings (if required). We often see disputes about the actual date of separation, which can lead to more complicated proceedings and additional costs. We recommend seeking professional legal advice to clarify when separation occurred and what evidence will be needed to prove the end of the relationship if a dispute arises.

In addition, Australian de facto relationships are not recognised by every country or region in the world. This can create difficulties if legal issues arise in other jurisdictions.

If you have any doubts about whether you are in a de facto relationship, or about the personal rights and obligations that arise under family law and marriage law, or if you are interested in preparing a financial agreement, you can seek professional advice.

Jodie Haydon Chooses a Different Path

In the United States, there is often lively discussion around the “First Lady” — names like Michelle Obama, wife of Barack Obama, and Hillary Clinton, wife of Bill Clinton, are familiar to everyone, and the “First Lady” role seems firmly woven into political culture.

In Australia, although public attention is not as intense, we are likewise used to viewing the Prime Minister’s spouse (usually female) as someone who supports, nurtures, and continually serves the Prime Minister, and who typically acts as a mother to their children or plays some kind of maternal role.

In an April interview, however, Jodie Haydon said she will continue to pursue her own career and intends to avoid political topics.

“My job will be to focus on my day job and let Anthony focus on his.”