De facto relationships

Opposite-sex and same-sex relationships are treated the same, except in the following areas:

  • adoption (see Five year time requirement)
  • marriage - under the Marriage Act 1961 (Cth) it is not possible for same-sex couples to be legally married in Australia. Nor may an Australian court make a declaration of validity in relation to a same-sex marriage entered into overseas.

In this chapter, opposite-sex and same-sex relationships are both referred to as 'de facto relationships'.

A de facto relationship of any length will be recognised in some areas of law; that is, there is no time requirement for recognition of the relationship. In these cases, a de facto relationship is treated as a marriage. Areas of law covered here:

  • Applying for Legal Aid
  • Pensions and Benefits
  • Tax
  • Children (including recognition of the birth of a child to same-sex female parents)
  • Child Support
  • Intervention Orders
  • Agreements about property
  • Criminal Code

In other areas of law, a de facto relationship must have existed for a certain period of time before it is recognised. Depending on the area of law, the relationship must have existed for a one year, two year, three year or five year period.

One year for recognition: migration law.

Two years for recognition: property disputes (Family Law Act).

Three years for recognition: State law matters, including

  • Inadequate provision in a will
  • Where there is no will
  • Death caused by a negligent act
  • Superannuation under a State scheme
  • Death caused by crime
  • Workplace death
  • Stamp Duties
  • Accessing reproductive technologies

Five years for recognition: adoption.

NOTE: if there is a child of the relationship, the relevant time period may not be required and a relationship of any length will be recognised.

De facto relationships  :  Last Revised: Thu Sep 22nd 2016
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