The Family Law Act 1975 (Cth) was amended to incorporate de facto relationships – for more information see this section of the Family Court website.
From 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Circuit Court to have financial matters determined in the same way as married couples.
You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court’s permission to apply.
Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:
- you were in a genuine de facto relationship with your former partner which has broken down
- you meet one of the following four gateway criteria:
- That the period for the de facto relationship is at least 2 years
- That there is a child in the de facto relationship
- That the relationship is or was registered under a prescribed law of a State or Territory
- When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice
- you have a geographical connection to a participating jurisdiction
- your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.
What the amendments mean is that once a de facto relationship is proven, effectively the same rights as those accorded to married spouses apply.
Married Couples – heterosexual and same-sex
Marriage allows people to access 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.
Unlike de facto relationships, marriage is recognised nationally and internationally.
Differences under law – de facto couples
The laws regarding de facto couples differ between states and the Commonwealth, and from one right to another.
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 (unless you have a child together or de facto relationships are illegal in your country of origin).
Under family law it is different again: a minimum of two years (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship).
Where 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 a de facto relationship is proven to exist.
Couples who are or were married 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 facto couples; they must file proceedings within two years.
In many states, a new marriage nullifies an existing will, unless that will was quite specifically worded. This is not the case when you enter a new de facto relationship. In the latter situation, if you die before making a new will, a court might need to decide how your assets are allocated (with costs borne by your estate).