Married or de facto: the legal consequences of your decision

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Many commentators argue that it makes very little difference, from a family law or estate planning perspective, and at law generally, whether couples are married or living in de facto relationships. But the devil is in the detail and a couple of academics from La Trobe University Law School have pointed out that there is an awful lot of detail. The issue has taken on greater significance, with same sex marriage soon to be legalised.

In a typical commentary, law firm HopgoodGanim, wrote to clients in May: “Those in de facto relationships in Australia have generally the same rights and entitlements and are subject to generally the same obligations and responsibilities as married people, with respect to alteration and division of property interests, maintenance and superannuation.”

This view has been challenged by Hannah Robert and Fiona Kelly, both from La Trobe University Law School. Writing in The Conversation earlier this year, they said that while de facto couples may be able to assert some of the same rights as married couples, they often have to spend significant time and effort to do so.

“Marriage gives people access to a complete package of rights simply by showing their marriage certificate or ticking a box, and is based on their mutual promises to one another rather than proving their relationship meets particular interdependency criteria,” Robert and Kelly say.

“Marriage is recognised nationally and internationally, while the laws relating to de facto couples differ between states and the Commonwealth, and from one right to another.”

Where marriage delivers rights based on a couple’s promises to one another, registered relationships require proof that the relationship meets the criteria.

The point at which a de facto relationship is recognised varies. For Centrelink purposes, you are a de facto couple from the moment you start living together; for migration law it is after 12 months of cohabiting.

Under family law a minimum of two years is required before a de facto relationship is established, unless you have a child together, have registered your relationship or have made significant contributions to the relationship (with the exception of Western Australia and the Northern Territory couples can register their domestic relationships).

Robert and Kelly say that when married couples use IVF, both spouses are automatically legal parents. But for de facto couples using reproductive technologies, their child’s parentage depends on whether the de facto relationship is proven to exit.

Married couples going through divorce must file for property and/or spousal maintenance proceedings in the Family Court within one year of finalising a divorce, but have the option to agree to an extension of time in which to file. No such provision exists for de factos; they must file proceedings within two years.

In a Federal Circuit Court case in 2014, the judge ruled that a couple who had a child and lived together for 13 years were not in a de facto relationship and, as a result, the court had no jurisdiction to divide up their property under family law.

The alleged male partner said the couple had never been in a relationship and lived together for convenience, in separate rooms.

Assessing whether they were in a relationship, the judge said the man mostly “attended to his own needs.”

“This included attending to his washing at laundromats, making his own meals or taking meals outside the home and by and large maintaining his own lifestyle.”

Commentaries on the case pointed out that a married couple could stay together under the conditions detailed in the case without having the status of their relationship called into question.

Lianne Tan, a lawyer at LegalVision, says: “Section 4AA of the Family Law Act specifies the circumstances a court may look at in defining a de facto relationship. They include the duration of the relationship, the nature and extent of cohabitation, the existence of a sexual relationship, the degree of financial dependence, ownership of property, degree of mutual commitment to each other and shared life, whether a de facto relationship was registered and any care of support for children.”

In a case that went to the Federal Circuit Court in 2015, the parties were a same sex couple. They agreed that knew each other from 2005 and, at times, lived with each other and shared sexual relations. The applicant’s position was that it was a genuine domestic relationship, while the respondent said the relationship was one of “friends with benefits” and not a genuine de facto relationship.

The court ruled that it was not a de facto relationship, taking into account the fact that the respondent carried on other sexual relationships and that the applicant received social security payments, which he potentially would not have received had the parties been in a genuine relationship.

When it comes to estate planning, in some states a new marriage nullifies an existing will. That is not the case when you enter a new de facto relationship. If you die before making a new will, a court might need to decide how your assets are allocated.

A person in a de facto relationship might need to prove their relationship if their partner is very ill, in order to make decisions about their care and treatment. They might need to prove their relationship to be listed as a spouse on a death certificate or be involved in funeral planning.

Being listed on a death certificate is critically important when it comes to claiming superannuation payouts.

“In all contexts, de facto relationships require significant proof, which means partners have to be able to provide evidence about their living and child care arrangements, sexual relationship, finances, ownership of property, commitment to a shared life,” Robert and Kelly say.

And they say there are many examples of a couple’s de facto status being challenged by one partner’s family. Marriage, on the other hand, is undeniable.

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