More Australians are opting for de facto relationships, with many choosing to live together without getting married.
While marriage remains a significant milestone for many, the decision between marriage and a de facto relationship depends on legal, financial, and personal considerations.
If you’re in a committed relationship, you may wonder whether to marry or continue living as de facto partners.
From a family law standpoint, both marriage and de facto relationships are treated similarly when it comes to property division, financial settlements, and child custody – so the decision ultimately depends on your own personal preferences and financial situation.
Definitions
What Is a Marriage?
Marriage is defined under Australian law as the union of two people, entered into voluntarily, to the exclusion of all others.
Legally, marriage is easily proven by a marriage certificate, and the union is recognised immediately after the ceremony. Marriage often comes with built-in legal and financial protections, making it a straightforward choice for many.
What Is a De facto Relationship?
A de facto relationship refers to a couple living together on a genuine domestic basis without being legally married. Unlike marriage, proving a de facto relationship can be more complex.
Under Australian law, you generally need to have lived together for at least two years, or meet certain criteria such as registering the relationship or having a child together.
Evidence of a de facto relationship can include joint property ownership, shared bank accounts, and household bills.
Family Law Perspective on Marriage vs. De facto Relationships
Under the Family Law Act, de facto couples have nearly identical rights to married couples in Australia, which means that after separation, both types of relationships can seek the same legal remedies.
However, there are notable distinctions as detailed below.
Proof of Relationship
For married couples, a marriage certificate is sufficient. In de facto relationships, proving the existence of the relationship may require additional evidence like joint property ownership, shared bank accounts, and household bills.
Length of the Relationship
De facto couples usually need to demonstrate that they’ve lived together for at least two years before gaining access to family law protections.
Exceptions can be made if they have a child together or if one partner has made significant financial contributions.
Old State Laws
In certain cases, particularly if the de facto relationship began before family law legislation transferred to federal jurisdiction, some rights may still be governed by older state-based de facto relationship laws.
If you’re unsure about your rights under family law, it’s important to consult with an experienced family lawyer, especially if you’re in a long-term de facto relationship.
Legal Differences Between Marriage and De facto Relationships
Marriage
Marriage offers clear legal recognition and protection. Once married, both partners have immediate legal standing regarding financial entitlements, property rights, and decision-making powers for each other.
For instance, in the event of illness or incapacity, you can automatically apply for power of attorney over your spouse’s affairs.
When it comes to inheritance, in many cases, if a married person passes away without a will, their spouse may automatically inherit their estate, depending on state law.
De facto Relationships
The Family Law Act aims to give de facto couples similar legal rights to married couples when it comes to financial settlements, property division, and maintenance.
However, proving a de facto relationship can involve gathering evidence like joint ownership documents, financial accounts, and proof of living together.
In some cases, de facto relationships may be subject to older state laws if they haven’t been transferred to federal jurisdiction under the Family Law Act. It’s wise to consult a family lawyer to understand your rights fully.
Financial and Property Implications
For Married Couples
Marriage typically simplifies financial matters. After separation, married couples have clearly defined rights regarding property, spousal maintenance, and division of assets.
Inheritance laws generally favour a surviving spouse, even without a will, which can reduce complications after a partner’s death.
For De facto Couples
De facto partners generally have similar financial rights to married couples after separation, but proving the relationship’s existence and duration can be more involved.
Registering the relationship can help secure legal recognition, while drawing up a financial agreement can clarify how assets and finances will be divided in the event of a separation.
Additionally, de facto partners need to be proactive about estate planning. Wills, superannuation beneficiaries, and life insurance policies should clearly outline how each partner’s estate will be managed.
Social and Emotional Considerations
Marriage
Marriage is often viewed as a public declaration of commitment. For some, the ceremony and legal status carry significant personal and societal value. Family traditions and social expectations may also play a role in the decision to marry.
De facto Relationships
De facto relationships offer flexibility for couples who want to live together without the formalities of marriage. This arrangement may appeal to those who feel marriage is unnecessary or prefer a less structured form of commitment. However, it’s essential to ensure both partners are on the same page regarding expectations and future plans.
Which Is Right for You? Key Considerations
When deciding between marriage and a de facto relationship, here are some key factors to weigh:
1. Personal Preferences
Do you value the formality and legal recognition of marriage, or are you content with the flexibility of a de facto arrangement? For some couples, marriage feels like a natural step in their relationship, while others prefer to live together without tying the knot.
2. Legal Protections
Marriage automatically grants legal entitlements such as spousal maintenance and inheritance rights. In a de facto relationship, these entitlements may be similar but could require more documentation and legal intervention.
Registering the relationship or signing financial agreements can help protect your rights as a de facto couple.
3. Financial Planning
Marriage can simplify financial and estate planning, with clear legal protections in place. In a de facto relationship, you may need to take additional steps, such as drafting a will or financial agreement, to ensure your assets and finances are protected.
Steps to Protect Your Relationship if You Choose De facto
If you opt for a de facto relationship, here are some steps you can take to safeguard your rights and ensure legal clarity:
1. Register the Relationship
In some Australian states, you can register a de facto relationship. This formalises the relationship and helps secure many of the same legal rights as married couples, such as property division and inheritance entitlements.
2. Create a Financial Agreement
A financial agreement outlines how property and finances will be divided if the relationship ends. Having this in place can prevent future disputes and ensure both partners’ interests are protected.
3. Estate Planning
Make sure both partners have up-to-date wills that outline how assets will be distributed. Additionally, review your superannuation and life insurance policies to ensure your partner is listed as the beneficiary.
Which is better?
Choosing between a de facto relationship and marriage depends on personal preferences, legal considerations, and financial planning.
While both types of relationships offer similar rights in many cases, it’s important to understand the steps you need to take to protect yourself legally and financially, especially in a de facto relationship.
Whether you choose to marry or not, it’s a good idea to discuss your plans with your partner and seek legal advice to ensure your rights and future are secure.
