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De Facto and Marriage

Marriage

In Australia, marriage is governed by the Marriage Act 1961.

In December 2017, this Act was amended to allow for marriage equality, namely that the right to marry is not determined by sex or gender. The Act now defines marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.

In order to marry, both parties must be over the age of 18 and must not be related.

If someone is 16 or 17 years old, they must have consent from their parents or authorisation from the court. After the consent or authorisation, the marriage must take place within three months.

 

In order to be considered a valid marriage, a number of legal requirements must be met:

  • The ceremony must be witnessed by at least 2 other persons over the age of 18. Those witnesses must watch the couple sign the marriage certificate and then sign it themselves.
  • The ceremony must be performed by someone who is authorised to do so, such as a marriage celebrant or minister of religion. They will be required to make particular statements in the hearing of the witnesses.
  • The parties must complete and submit a Notice of Intended Marriage. This can be done up to 18 months prior to the wedding, but it must be submitted no later than 1 month prior.
  • The parties to the marriage must provide evidence of the place and date of their birth and the end of any previous marriages.
  • The parties must sign a ‘Declaration of no legal impediment to marriage’ confirming they are an appropriate age and that there is nothing which would legally prevent their marriage.
  • The marriage must be registered with the Registry of Births, Deaths and Marriages.
  • At some point in the ceremony, both parties must state their intention to be lawfully married to the other person.

Marriage in Australia

There are a number of legal consequences of marriage in Australia, including:

  • The invalidation of any previous wills unless the will clearly demonstrates that the marriage was planned;
  • The amount of tax paid, therefore the Taxation Office must be notified of the marriage; and
  • The dollar value of any health or welfare received, therefore the Department of Human Services must be notified of the marriage.

It’s important to remember that it is a criminal offence to mislead or provide false information to the Australian Government about your entitlement to health or welfare payments.

If either party chooses to change their surname or to hyphenate the two surnames together, this is considered a ‘change of name’ and therefore affects a person’s identity so it should be updated.

Overseas Marriage

The Marriage Act 1961 contains the rules that govern whether or not an overseas marriage is valid under Australian law. An overseas marriage will usually be recognised as valid in Australia if at the time of marriage, the following were true:

  • Your marriage was recognised as valid under the law of the country in which you married, and
  • It would have been recognised as a valid marriage under Australian law if you had married in Australia.

Conversely, the following reasons from The Marriage Act 1961 outlines the reasons why an overseas marriage would be invalid in Australia:

  • At the time of the marriage one of the parties was validly married to another person.
  • One of the parties was not of marriageable age in Australia.
  • The parties are too closely related to marry. This means one is an ancestor of the other, a descendent of the other or they are brother or sister.
  • Consent to the marriage by either of the parties was not real consent because:
    • it was obtained by duress or fraud
    • they were mistaken as to the identity of the other person
    • they did not understand the nature of the ceremony being performed, or
    • they were mentally incapable of understanding the nature and effect of a marriage ceremony.

Registration of marriage in Australia

If you were married overseas, there is no requirement to register the marriage in Australia too. An original or certified copy of a marriage certificate or record of marriage that has been issued by the competent authority in a foreign country is proof of validity.

Marriage and Immigration

While some may expect that being married to an Australia citizen will automatically guarantee their spouse legal immigration, a visa application is still necessary. The Department of Home Affairs (DoHA) website has detailed information about what is required for immigration to Australia.

Ending a marriage

Although most people intend to enter a lifelong commitment via marriage, circumstances do change, and many relationships end. Currently, about  a lifelong commitment via marriage, there are three ways in which a marriage can end:

  • Divorce
  • Death of a spouse, or

Divorce

The most common way for a marriage to end in Australia is by divorce. Under the Family Law Act 1975, Australia has a principle of no-fault divorce, meaning that neither party is blamed for the breakdown of the marriage.

In order to obtain a divorce, an application must be made to the Federal Circuit Court of Australia after a period of separation of no less than 12 months. The application can be made by a sole application or jointly. In the case of a sole applicant, it must be served to the other party in the marriage.

Annulment

In order to end a marriage by annulment, an application to the Family Court must be made. In this case, at least one of the parties must be an Australian citizen, live in Australia and consider it their home, or have lived in Australia for at least 12 months prior to the application. The Court will consider the following in its decision to issue a decree of nullity:

  • The relationship between the parties is illegal or prohibited, as in the case of family members
  • One or both of the parties to the marriage were married to someone else at the time
  • The marriage did not comply with the law in the locale in which the parties were married
  • One of the parties was not old enough to marry, or, if they were between 16 and 18 years, they did not have parental consent or a court authorisation, or
  • One of the parties did not validly consent to the marriage. This might arise if they were being forced into the marriage, they were mistaken about what marriage is or who they were actually marrying, or they were not sufficiently capable of understanding what was taking place.

Bigamy and polygamy

In Australia, a person may only be married to one person at any given time. Marrying a person when one is already married to another, is known as bigamy, which is considered a criminal offence. Bigamy can carry a maximum penalty of five years imprisonment.

One defence to a charge of bigamy is mistake of fact. For example, if a person genuinely believed their spouse to be deceased at the time of their subsequent marriage (though they were not in fact deceased), the Court may choose to not refer the proceedings to the relevant prosecuting authorities.

In the case of already being married at the time of a subsequent marriage, the second one will be considered void. A person may choose to apply to the Courts for a decree of nullity of marriage, and once more the Court will decide whether or not to refer the proceedings to the relevant prosecuting authorities. 

De Facto Relationships

For Australians who choose not to marry, and prefer to enter into long-term live in relationships instead, the law recognises these de-factor relationships.

De facto relationships are defined by the Family Law Act as two people living together as a couple on a genuine domestic basis. A de facto relationship can exist between two people of the same sex, or two people of the opposite sex. A person can be married and be in a de facto relationship with another person simultaneously, or in two de facto relationships at once. A de facto relationship cannot exist between a married couple or by two people connected by family (e.g. a parent and child).

When it is necessary for the Court to determine the existence a de facto relationship between two people (for the sake of property settlement or financial assistance), the following will be considered:

  • Whether the couple are married;
  • How long the couple have been together in their relationship;
  • If the couple lives together, and if so for how long;
  • Whether the relationship was sexual in nature;
  • Financial dependency;
  • The degree of a mutual commitment to a shared life;
  • Whether the relationship is registered in an Australian state or territory;
  • Ownership use and acquisition of any property;
  • Care and support of children; and
  • The public aspects of the relationship, such as reputation.

Generally speaking, a couple must have lived together for two years without separation to be considered de facto, but if there are children or substantial contributions to joint property, exceptions are made to this rule. As this indicates, no any one factor will determine the Court’s decision, as it will be about the overall circumstances.

Registering a De Facto Relationship

De facto relationships can be registered through most state’s and territories’ Registry of Births, Deaths and Marriages. If and when a certificate is issued, it can later be used as proof of the relationship and its length. If you have not been living together with your de facto partner for the requisite two years, then a registered relationship may be able to create rights for property division.

Ending a De Facto Relationship

Unlike in a marriage, nothing official like a divorce application is required upon separation from a de facto partner. De facto couples who separate after 1 March 2009 have the same rights as married couples with respect to property settlement, superannuation splitting and parenting matters.

In all Australian states and territories except for Western Australia, one or both parties may apply to the Family Court or the Federal Circuit Court to determine any related disputes, so long as they meet the definition of a de facto relationship. The application may be in the form of Consent or Property Orders. Alternatively, it is possible to come to an agreement about the net asset pool without getting the courts involved.

Resolving financial matters when a de facto relationship ends

Seeking professional legal advice can ensure that both parties understand their rights and obligations in dissolving the relationship and dividing up assets fairly.

Net asset pool

In a de facto relationship, the net asset pool refers to anything acquired before, during, or after separation. Whether or not the property was owned jointly or individually does not matter if no financial agreement is in place.

When determining a property settlement, the court evaluates the types of contributions (financial and non-financial) made by both parties, as well as the future needs of each party. Future needs may include age, health, capacity to earn money, property and assets of each party, new relationships and future parenting responsibilities. Property Orders must be applied for within two years of the date of separation, otherwise permission from the Court is needed.

Spousal maintenance in De Facto Relationships

In Australia there is limited legal obligation for a de facto partner to maintain or support the other during or after the relationship. However, if the applicant has lost their earning capacity as a result of the relationship, including because they are the primary carer for a child of the relationship, they may be eligible. If they cannot work for a reason other than childcare, then they must also demonstrate that they are willing to gain further training and education in order to increase their ability to earn.

As such, spousal maintenance can be for a specified period of time to allow for completion of education or until children reach school age. It may be payable indefinitely, but this is not common. An application for spousal maintenance must be made within two years of the end of a de facto relationship.

Death of a De Facto Partner

If your de facto partner dies, you will have the same rights as a married person, including:

  • A share of an estate granted that no will exists;
  • The right to challenge the will;
  • Compensation entitlements under workers compensation law (assuming your partner died during the course of employment); and
  • Social security entitlements.

Implications of De Facto Relationships in Divorce Proceedings

Modern day relationships can be complicated. It is wise then, to consider a Binding Financial Agreement so that you and your partner are financially protected if your relationship ends. Legal advice is a requisite for finalising a Binding Financial Agreement. It’s also advisable to seek independent professional financial advice.

Financial Agreements & Prenuptial Agreements

Since December 2000, under the Family Law Act 1975, couples have been able to enter into a Binding Financial Agreement before marriage.

This is commonly known as a prenuptial agreement. A prenuptial agreement is intended to regulate the division of assets upon separation. Couples who are in de facto relationships are also able to make financial agreements. Sections 90B-90KA of the Family Law Act 1975 deal with financial agreements by parties that are married and sections 90UA-090UN apply to de facto couples.

These financial agreements are typically not considered by couples because they worry unnecessarily that they are written with the intention for the marriage or relationship to fail. However, they can be valuable in protecting assets like trusts or family businesses. Above all they provide clarity, ensuring that financial issues have been addressed and discussed openly.

Couples can enter into a Binding Financial Agreement before, during or after marriage.

What May Be Covered in a Prenuptial Agreement

Some assets that may be protected under a prenuptial agreement are cash, real estate, superannuation, investments, businesses, inheritances and pension entitlements. The agreement may also outline obligations for finalising debts and liabilities incurred during the relationship. Future asset purchases, what happens in the case of serious injury or illness and children may also be considered in a prenup. Here are some situations where a prenuptial agreement may be particularly useful and/or important:

  • It is your second marriage and you have assets from your first marriage that you want to protect and pass onto your children;
  • It is a de facto relationship and one party is moving into the other party’s property;
  • One party has much more property than the other when the relationship begins;
  • You want to avoid any hostility or uncertainty if the relationship does fail, and keep the matter out of court; or
  • You want to protect a future inheritance or a family business.

Legally binding agreements

A binding financial agreement must meet strict criteria in order to be legally binding. Specifically, each party must engage a solicitor who signs a Certificate of Independent advice. This statement speaks to the effects of the agreement on the rights of the party, the advantages and disadvantages to the party making the agreement, whether or not it was necessary for the party to make the agreement, and whether the provisions in the agreement are just and equitable.

 

Consent Orders

Although a financial agreement may be used to formalise a property settlement, so too can consent orders. Consent orders can be reached through mediation between the two parties, and then formalised in the Court, so long as the Court is satisfied that the agreement is “just and equitable” to both parties, and that both parties have sought independent legal advice.

 

Consent orders are more common but may not be as desirable in certain circumstances. Specifically, one or more of the parties involved may not want a Registrar of the Family Court to scrutinise their agreement. In the case of death, a prenuptial agreement can be binding upon the legal personal representative of the Estate, as per section 90H of the Family Law Act 1975. This can allow for protection of assets for the benefit of children and other heirs in the case of death.

 

Children in a Prenuptial Agreement

It is possible for a prenuptial agreement to provide for child support, as per Section 90E of the Family Law Act 1975, if the child has already been born and named. The exact amount of maintenance must be included in the agreement. However, it is possible for this to be overturned by the Court if it is found to not be in the best interests of the child.

 

If a couple does not have children, they should still make mention of the possibility and its subsequent effect on property division. If children are not mentioned, but then the parties have children later in the relationship, the agreement will not be legally binding.

 

Setting Aside a Prenuptial Agreement

The Family Court can set aside a prenuptial agreement for the following reasons:

 

  • The agreement was obtained by fraud such as non-disclosure of all assets;
  • The binding requirements were not met such as obtaining independent legal advice;
  • There has been a material change to the situation since the agreement was made which was not provided for, such as the provision for future children;
  • A party to the agreement has been involved in unconscionable conduct in the process of the drafting or signing of the agreement. An example of this can be signing the agreement on the wedding day.

 

This may lead to an order that includes the following:

 

  • Interest payable under the agreement
  • Award damages
  • Termination of the agreement, or
  • All or part of the agreement is to be enforced as if it was an order of the Court.