Can couples in Australia obtain a certificate of marital relationship simply by cohabiting? What kind of relationship document is the De Facto status that people in Australia so often talk about? And what is the difference between a De Facto relationship and a legal marriage? Today we will walk you through the similarities and differences between the two, along with the responsibilities and obligations they carry under family law and marriage law.

1. What are the two main types of marital relationships in Australia?

2. What is a legal marriage?

A Legal Marriage is the marital relationship we traditionally understand. 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.

The criteria for a valid legal marriage are as follows:

1. A couple may marry at least one month after lodging their Notice of Intended Marriage form.

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

3. What is a de facto relationship?

Australia’s De Facto relationship certificate is a form of de facto marital relationship evidence in Australia. It is not a registered marital relationship recognised by law — that is, it is not a Legal Marriage.

Although a de facto relationship certificate is not marriage in the traditional sense, it can still prove that you and your partner are in fact together. A de facto relationship is defined under the Family Law Act 1975. Broadly speaking, a person is considered to be in a de facto relationship with another person if all of the following apply:

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

2. The two 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”.

Under family law, if the parties’ de facto relationship has lasted more than 2 years, or if the parties have a child together, the relationship is treated as de facto. However, as far as Centrelink is concerned, the parties are de facto partners from the day they begin living together.

Unlike a legal marriage, an Australian de facto relationship is generally not recognised worldwide from a legal perspective. This can create difficulties if, for example, you are travelling overseas and require medical care or encounter legal issues.

4. Do de facto relationships and legal marriages have the same nature?

As the two definitions above show, there are some differences. A legal marriage is registered via a marriage certificate, whereas a De Facto relationship is registered through a cohabitation relationship document. That said, there are also similarities. Under Australian family law, a de facto relationship has the same legal force as a registered marriage, and the rights enjoyed and obligations owed are similar to those arising from a marital relationship.

If there is any dispute about the existence or duration of a de facto relationship, we recommend seeking professional legal advice to ensure you meet the relationship criteria before applying for proof of the relationship.

5. Are the legal obligations and responsibilities the same for both?

Are the legal obligations and responsibilities owed under a De Facto relationship and a legal marriage the same — particularly the financial obligations? Many people hold a common misconception, for instance that “joint property only exists once you are married; if you are merely cohabiting, boyfriend and girlfriend have no right to divide each other’s property”.

In fact, this understanding is incorrect. If the parties’ relationship is legally recognised as a de facto relationship — that is, a De Facto relationship — then the rights each party holds over joint property are no different from those of a married couple.

In other words, as long as the conditions of a de facto relationship are met (namely cohabiting for more than 12 months, or having obtained a de facto relationship certificate), both parties have the same right to distribute each other’s property.

6. What counts as joint property, and what property can be divided?

Once we understand that de facto relationships and legal marriages give rise to equal rights in dividing each other’s property, the most important thing is to understand what constitutes joint property and what can be divided.

Australia does not distinguish between pre-marital and post-marital property. Once parties enter into a de facto relationship or a registered marriage, all property — whether in an individual’s name or jointly held, whether located in Australia or overseas — becomes joint property.

To give an example: if the parents of one spouse in a young couple pay in full for a house for them and register it in the couple’s joint names, then many years later, if the couple ends their de facto or legal marriage, the money the parents paid for the house will be treated as a gift. It equally forms part of the couple’s joint property and will be included in the property settlement.

7. What is the role of a property agreement?

Because Australia does not distinguish between pre-marital and post-marital property, once the conditions for a de facto relationship or marriage are satisfied, all property (including overseas assets) automatically becomes joint property. If no property agreement is signed, the other party will have the right to claim a proportional share of the other’s property.

We stress again that de facto relationships and marriages have the same legal status, so once a de facto relationship certificate is in place, under family law the parties can also divide each other’s property if they separate. Therefore, it is highly advisable to enter into a property agreement before, or during, cohabitation!

Compared with court litigation, a property agreement is a more cost-effective and favourable means of property division. A property agreement clearly sets out each party’s property and debts and specifies how property is to be divided upon separation. This not only avoids unnecessary disputes down the track but also protects both parties’ interests.

8. Can you notarise property arrangements yourselves?

Strictly speaking, there is no such thing as property notarisation in Australia — only property agreements. A property agreement drafted under the Family Law Act is legally effective. Both parties to a property agreement must have their own separate solicitors, the agreement must be drafted in accordance with the Family Law Act, and it must be signed in the presence of both parties’ solicitors to be valid. Apart from that, any property agreement signed privately between the parties has no legal effect whatsoever.

9. What happens if a de facto or legal marriage relationship breaks down? What are the differences?

If the parties are in a Legal Marriage and wish to divorce, before applying for divorce they must meet the prerequisite of having been separated for at least 12 months. Once a divorce order is made, the parties have 12 months from the date of the divorce order to commence property settlement proceedings under the Family Law Act. In other words, either party must bring proceedings for property and/or maintenance in the family court within one year of the divorce being finalised, though the parties may also agree to extend this filing period.

If the parties are in a De Facto Relationship, they have 2 years from the date of separation to commence proceedings. Disputes often arise over when separation actually occurred, which can lead to more complex proceedings and additional costs. We therefore recommend consulting a professional for legal advice to clarify when separation took place and what evidence will be needed to establish the end of the relationship if a dispute arises.