The same sex marriage vote has sparked a lot of conversation regarding the rights of de facto couples compared to couples who are married. Former Prime Minister Tony Abbott, in a recent opinion piece, stated that “… same sex couples in a settled domestic relationship have exactly the same rights as people who are married“. This is not true. There are fundamental differences between de facto couples and couples who are married.
One often misconceived view is that you must be in a relationship for two years before you are classed as ‘de facto’. There are a range of factors that are considered to determine if you are in a de facto relationship, the length of your relationship being just one of those. See our fact sheet on de facto relationships for other factors that are taken into account (https://catherinehenrylawyers.com.au/resource/de-facto-relationships-including-same-sex-relationships/)
Where the two years becomes important is if you separate. A court may make order for property settlement only if it is satisfied that you have been in a de facto relationship for at least two years (there are some exceptions). If you are married, a court may make an order for division of property, regardless of how long you were married for.
Another difference is that, for a de facto relationship, you must file proceedings for property settlement within two years of the date of separation. Outside of this time you must prove hardship for a court to grant you leave out of time. If you are married, there is no time limit for you to undertake a property settlement, except if you get divorced. Once you are divorced you have 12 months from the date of your divorce to file an application for property settlement, although this time limit can be extended by consent – a de facto relationship does not have this same luxury.
When you are married you get a piece of paper and a relationship that is recognised in Australia and abroad. You do not have to prove you are in a relationship. For a de facto relationship, there is no recognition of this bond. You can register your de facto relationship at a cost and by proving that you meet the relevant criteria, but it still may not be recognised overseas.
Further, if you are married and a child is born as a result of artificial conception, the child will be a child of you and your spouse. If you are not married, you may need to prove that you are in a registered de facto relationship or meet the criteria for a de facto relationship for both people in the to be regarded as the child’s parents.
While there isn’t a great number of differences between married couples and de facto couples, the differences that do exist can be substantial in their effect. For Mr Abbott to say that both types of relationship enjoy ‘exactly the same rights’ is simply wrong.