The marriage equality debate has raised the question what actually are the legal benefits to being married? Many experts have expressed the view that as same-sex couples are de facto couples they therefore have the same rights as people who are married.
Since 1 March 2009 the Family Law Act 1975 (the Act) was amended to include de facto couples in all states and territories which have conferred their power over de facto relationships to federal jurisdiction, which is all jurisdictions except for Western Australia.
A de facto relationship is defined in the Act as a person who is in a relationship with another person, (who may be of the same or opposite sex) where:
- The persons are not legally married to each other;
- The persons are not related by family;
- And have a relationship as a couple living together on a genuine domestic basis.
To qualify as a de facto relationship under the Act you must provide evidence to the court of the existence of the relationship and commitment to each other. The circumstances which proved the existence of a relationship may include the following:
- The duration of the relationship;
- The nature and extent of the common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence;
- The ownership and acquisition of property;
- The degree of mutual commitment to a shared life;
- The care and support of children;
- The reputation and public aspects of the relationship.
A de facto couple must establish their relationship before they can apply to the courts to make a property claim on the dissolution of their relationship. Being married does not present this hurdle of proving or refuting a relationship was in existence.
The current marriage laws in Australia define marriage as between “a man and a woman”. Therefore if same sex couples marry overseas to circumvent this law, their marriage will still not be legally recognised or enforceable in Australia. This also means that the same sex couple cannot apply for a divorce in Australia.
Where a married couple use IVF to become pregnant both spouses are the legal parents of the child. Whereas a de facto couple (or same sex couple) need to prove the existence of their relationship before parentage can be deemed.
Likewise proving your de facto relationship requires significant proof when your de facto spouse passes away. Whereas if you are married to your spouse and they pass away, you have immediate recognisable entitlements in the event of their death.