In 2002 former State Attorney General Jim McGinty introduced legislation that (among other things) expanded the term ‘de facto’ to include gay and lesbian couples.

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This was some of the most progressive legislation in our country at the time. Just two years later, John Howard amended the Marriage Act to make it mandatory that all wedding ceremonies must state that marriage was “the union of a man and a woman”.

So, while continued debates and proposed plebiscites loom around us, let’s talk about what it is to be a de facto and what it means to be in a de facto relationship.

On paper, the rights of married couples and of de factos are relatively that same. In my view, however, the most important legal issue for de factos is that, in certain circumstances, a de facto may be required to prove their de facto relationship exists or existed. So how do we prove we are a de facto couple? And why would we need to?

Without getting too hot and heavy with the legislation, the Interpretation Act 1984 provides eight criteria for assessing a de facto relationship. They range from shared finances to “a mutual commitment to a shared life”.

The legislation does not require all factors to be proven, in fact there is no legislative requirement that a certain number are. It is ‘open to interpretation’; they are amongst the scariest words in a lawyer’s life.  

As to “why do we need to”? While the rights of de facto couples are relatively similar to that of married couples, our legislation is littered with different standards for de facto and married couples. This ranges from migration cases to important parts of our family law and laws surrounding inheritance.

Recently I had a case where a de facto relationship was challenged.    

Cheryl and Ann had been in a de facto partnership for twelve years. Despite meeting most of the criteria, upon Ann’s sudden death Cheryl found herself defending her de facto status to Ann’s interstate parents. The inheritance litigation went on for three years as Anne’s parents were adamant the relationship did not exist.

If Cheryl and Ann were lawfully married, their relationship could not have been questioned in this manner.

There is more that can and must be said about the nature of de facto relationships and how they function in our community. Until we achieve marriage equality in Australia, it’s important to carefully look at how your relationship might be interpreted in different legal situations.

Jo Wynaden

If you’re seeking legal advice, give Jo a call at Sonder Legal
Phone: (08) 6558 1718 / 0449 886 499

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