In Australia, many people live with their partner in much the same way as a married couple, but without registering their marriage. So from a legal perspective, what is the difference between a de facto relationship and a registered marriage? Are you uncertain about how cohabiting/de facto relationships relate to registered marriages, and about the rights you enjoy under each? This article explains the differences between a de facto relationship and a registered marriage, and how you can protect your rights when legal issues or disputes arise in either type of relationship.
What Is a De Facto Relationship?
A de facto relationship (sometimes loosely referred to as a “cohabitation relationship”) is governed by section 4AA of the Family Law Act 1975 (Cth). A de facto relationship is established on the basis that “the two persons are not legally married to each other” and “the two persons are not related by family”, and then by considering all the circumstances of their relationship — such as whether they share genuine feelings for each other and live together on a genuine domestic basis. Where all three conditions are met, the relationship may be recognised as a de facto relationship (De facto Relationship). De facto relationships exist not only between opposite-sex partners, but also between same-sex partners.
Section 4AA of the Family Law Act lists “all the circumstances of the relationship”, which may include:
- The duration of the relationship and whether a sexual relationship exists
- The nature and extent of their common residence
- The degree of financial dependence or interdependence between the parties, and any arrangements for financial support
- The ownership, use and acquisition of their property
- The degree of mutual commitment to a shared life
- Whether there are children, and how care and support for the children are arranged
- The reputation and public aspects of the relationship — how it is viewed by friends, family and others
- Whether the relationship has been registered under a prescribed state or territory law (referring to de facto relationship registration, not marriage registration)
It should be noted that, when determining whether a de facto relationship exists, no single factor will be decisive. All factors and objective facts are considered together, and the assessment is made on the specific circumstances of each case. For example, if a couple has no children to care for or support but satisfies the other factors, their relationship may still be classified as a de facto relationship.
What Is a Valid Marriage?
A valid marriage is what we traditionally understand as a marriage. In Australia, the Marriage Act 1961 defines marriage (Marriage) as “the union of two people, to the exclusion of all others, voluntarily entered into for life”. A valid Australian marriage is recognised internationally.
To enter into a valid marriage, the requirements of the Australian Marriage Act must be met:
- At least one month before the wedding, the parties must lodge a Notice of Intended Marriage. After it is lodged, there is a one-month-and-one-day cooling-off period, after which the parties may formally register the marriage.
- The marriage must be solemnised by an authorised celebrant, who may be a minister of religion, a civil celebrant, or a state or territory official.
So What Are the Similarities and Differences Between a De Facto Relationship and a Registered Marriage?
A de facto relationship begins with two people living together, but cohabitation will only be recognised as a de facto relationship if it meets the conditions set out in law. A de facto relationship stands in contrast to a registered marriage: a registered marriage is solemnised before a marriage celebrant through a formal ceremony and is lawfully registered, whereas a de facto relationship is formed on the basis of the fact of openly cohabiting and does not require vows or a registration system.
Although de facto relationships and legally registered marriages are formed in very different ways, both are protected by law in Australia. A registered marriage produces a marriage certificate; a de facto relationship may be left unregistered or may be registered, and if registered it produces a de facto relationship certificate. The two types of relationship also share certain similarities. Under Australian family law, a de facto relationship has the same legal effect as a registered marriage; the rights and obligations that arise from it are similar to those that arise from marriage.
Property: Australia does not distinguish between pre-marital and post-marital property. Once parties enter a de facto relationship or a registered marriage, all property — whether in one party’s name or jointly owned, and whether located in Australia or overseas — will generally be treated as shared property. In addition, there is no concept of a property notarisation in Australia. To reduce unnecessary disputes down the track, it is well worth engaging a lawyer before or during the relationship to draft a property agreement in accordance with the Family Law Act, and to have both parties sign the agreement in the presence of their respective lawyers.
Immigration: In Australia, a number of visas — including the Student visa (Subclass 500), the Temporary Graduate visa (Subclass 485), the points-tested skilled migration visas (Subclasses 189/190/491), the employer-sponsored visas (Subclasses 186/482) and the business innovation and investment visas (Subclass 188) — allow the primary applicant to include a spouse or de facto partner as a secondary applicant. As a result, people who apply for a visa through a de facto relationship avoid the formalities of a wedding compared with a registered marriage.
What Are the Differences When Ending a De Facto Relationship Versus a Registered Marriage?
If the parties are in a valid marriage and wish to divorce, they must satisfy the requirement of having been separated for at least 12 months before they can apply for divorce. After a divorce order is granted, the parties have 12 months under the Family Law Act to commence proceedings regarding property settlement and the care and support of any children.
If the parties are in a de facto relationship, and the relationship is not registered, they can simply separate. If the de facto relationship has been registered, the parties need to lodge an application to terminate the relationship and wait out a 90-day cooling-off period, after which the separation is effective. De facto couples have 2 years from the date the relationship broke down to commence property settlement proceedings. The actual date on which the relationship broke down is often disputed, which can lead to more complex proceedings and additional costs. It is therefore advisable to seek professional legal advice to clarify the date of separation and the evidence that may be required to prove the end of the relationship if a dispute arises.
In summary, having looked at de facto relationships and registered marriages, it is clear that they share some features but also differ in important ways. Before couples who are in a happy relationship decide to move in together, or take the further step of registering a de facto relationship or getting married, it is well worth understanding both types of relationship so that your own interests are not compromised.
Disclaimer: This article is a general analysis and commentary on current laws and regulations, together with a partial summary of certain specific information and events. It does not constitute legal advice and should not be adopted or relied upon as such. Before taking any action based on this article or relying on any of its content, you should seek legal or other professional advice. We accept no responsibility for any actions taken, or legal consequences arising, from reliance on the above information.
We have prepared a series of articles introducing and explaining de facto relationships in Australia. You are welcome to read them:
When Does a Relationship Qualify as De Facto in Australia?
A De Facto Relationship Has Ended — How Is Property Divided? Watch Out for These Points!
Living Together for Years Without a Marriage Certificate — You May Be Deemed Married in Australia?
Bound Together Across the Northern Hemisphere, While You Cut Our Magpie Bridge in the Southern!
