Difference between married and defacto

Defacto relationships and marriage – what is the difference?

17 May 2019 | Children Property Separation & Divorce Working with your Lawyer

Defacto relationships continue to rise in Australia, but from a legal perspective, is there any difference between a marriage and a defacto relationship?

Marriage in Australia

A valid marriage

Under Australian law, a marriage is defined as “the union of two people to the exclusion of all others, voluntarily entered into for life”.

In order for a marriage to be valid, it must meet the criteria as set out in the Marriage Act 1961, which states:

  • Couples can marry at least one month after registering their Notice of Intended Marriage form
  • The marriage must be performed by an authorised celebrant, which can include a minister of religion, a celebrant, or a state or territory officer

Proving your relationship

A valid Australian marriage is recognised worldwide.

When you are married, it is easy to prove your relationship status if you need to. For example, if your partner is of ill health, you are able to easily prove – by producing your marriage certificate – that you are married and can therefore be consulted for medical decisions – both in Australia and overseas.

Being married also means your relationship is recognised immediately, there are no time frame requirements and no additional evidence required to support that you are in a relationship. You are not required to prove your relationship over and above your marriage certificate.

Ending a marriage

To legally end your marriage, you need to obtain a divorce. In Australia, around 30% of first marriages end in divorce, and the rate is even higher for subsequent marriages.

To apply for a divorce, you need to meet the following criteria:

  • You are an Australian citizen
  • You have been living in Australia for the past 12 months and intend to continue living in Australia
  • You have been separated for at least 12 months
  • If you have been married for under 2 years, you need to have filed a counselling certificate after attending counselling.

Note that if you have continued to live in the same home after separating, there may be additional requirements you need to meet to substantiate your change in relationship.

Once your divorce is granted, it will generally be finalised one month and one day after your Divorce Hearing.

You must commence property or spousal maintenance proceedings within 12 months of becoming divorced, unless an extension is granted.

Defacto relationships in Australia

On the surface, people in defacto relationships have the same legal rights as married couples in Australia. However, there are differences.

What is a Defacto relationship?

A defacto relationship is defined quite broadly in the Family Law Act 1975. You are considered a defacto when you live with your partner on a “genuine domestic basis”, and you are not legally married or related by family.

Whether your relationship is recognised as a genuine defacto relationship varies from state to state, and nationally.

Proving your relationship

In order to have legal rights similar to those of a married couple, you will need to first prove your defacto relationship is valid.

Whether it is legally recognised can be determined by the length of your relationship. For example, under family law you are considered defacto if your relationship lasts for longer than 2 years, or sooner if you have children together. However for Centrelink purposes, you are a defacto couple from the day you move in together.

With different states, territories and agencies having different requirements it can be difficult and time consuming to prove that you are in a defacto relationship. Therefore a good idea to register your defacto relationship with the relevant state department.

Unlike a marriage, Australian defacto relationships are generally not recognised worldwide from a legal perspective. This can create difficulties if you are travelling overseas and need medical attention or have a legal matter, for example.

Ending a defacto relationship

There is no legal requirement to submit forms or register the end of your defacto relationship.

However, if you wish to pursue a property settlement through the courts, a time limit of 2 years applies. This means that you must commence proceedings within two years of your relationship ending.

Overall

Overall, the main difference between a defacto and married relationship from a legal perspective is proving the relationship exists. While this is straightforward for married couples, it is complicated for defacto couples. Proving your relationship status is important for dealing with legal and medical matters, and can also have an impact on government services, such as Centrelink. To make the process of proving your relationship easier, you can register your defacto relationship in NSW.

Need advice?

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