Marriage equality - what difference would it make?

by Alexandra Moles and Greta Carew-Johns

To many people, the answer to this highly politicised question is probably ‘everything’.  But at law, in Australia, the answer may be little, if anything.

Whether same sex marriage is legislated or not in the coming years, those in de facto relationships in Australia have generally the same rights and entitlements and are subject to generally the same obligations and responsibilities as married people with respect to alteration and division of property interests, maintenance and superannuation.

 A de facto relationship is a relationship where the parties to the relationship:

  • are not legally married to each other;
  • are not related by family; and
  • live together on a genuine domestic basis.[1] 

The most significant differences at law between marriage and a de facto relationship currently are:

  • a de facto relationship can exist between two persons of the same or opposite gender.[2] In Australia, presently, a marriage can only exist between a man and a woman.[3]
  • those in a de facto relationship must, if challenged, prove the existence of a de facto relationship in order for the court to have jurisdiction. For married couples the certificate of marriage alone proves the marriage and therefore the jurisdiction of the court.
  • When the court considers whether people live together on a genuine domestic basis, the court takes into consideration circumstances of the relationship such as:
    • its duration (being a minimum of 2 years concurrent or a total period of 2 years);
    • the nature and extent of the parties’ common residence;
    • whether a sexual relationship exists;
    • degree of financial dependence or interdependence;
    • degree of mutual commitment to a shared life[4]; or
    • whether there is a child of the relationship.[5]
  • Whilst married couples are not open to the same challenge about the existence of their relationship, ordinarily de facto relationships are straightforward to prove.
  • if parties to a de facto relationship wish to end their relationship they do not have to separate and then wait a year to apply for a divorce as married couples do. The grounds for divorce for a married couple is that the relationship has ‘irretrievably broken down’ which is proved by 12 months of separation.[6] In addition, an $845 fee applies to an application for divorce.[7]

Historically, there have been substantial differences between the rights and entitlements of de facto couples and married couples. The Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008, which came into effect on 1 March 2009, made significant changes to the Act in relation to de facto couples and therefore same-sex rights and entitlements.  Prior to this the Family Law Act only dealt with the alteration and division of property interests and maintenance for couples who were married.

HopgoodGanim Lawyers' Family Law team has been ranked a First Tier Leading Queensland Family Law Firms in Doyle's Guide to the Australia Legal Profession every year since 2012, including an Australia-wide first tier ranking in 2015. The team was also named by International Global Law Experts as the Pre-nuptial Agreements Law Firm of the Year in Australia in 2014.  We are one of Australia's largest and most highly-regarded family law teams, led by partners who are recognised as experts in their field.

[1] s 4AA Family Law Act 1975 (Cth)
[2] ss 4AA and 90SB of the Family Law Act 1975 (Cth) for definition and jurisdictional requirements
[3] s 5 Marriage Act 1961 (Cth) 
[4] s 90SB Family Law Act 1975 (Cth)
[5] s 90RB Family Law Act  1975 (Cth) provides a definition of “child of a de facto relationship”
[6] s 48 Family Law Act 1975 (Cth)


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