Opponents of marriage equality often say that married and de facto couples already have the same rights. To what extent is this true? And, in legal terms, how much do the differences matter?
In an opinion piece last week, former prime minister Tony Abbott claimed:
Already, indeed, same-sex couples in a settled domestic relationship have exactly the same rights as people who are married.
This isn’t true.
At the most fundamental level, same-sex couples do not have the right to marry and therefore do not have “marriage equality”. While de facto couples may be able to assert some of the same rights as married couples, they often have to expend significant time, money and unnecessary heartache to do so.
Marriage allows people to access a complete package of rights simply by showing their marriage certificate or ticking a box, and is based on their mutual promises to one another rather than proving their relationship meets particular interdependency criteria.
Unlike de facto relationships, marriage is recognised nationally and internationally.
Differences under law
The laws regarding de facto couples differ between states and the Commonwealth, and from one right to another.
For Centrelink purposes, you are a de facto couple from the moment you start living together; for migration law it is after 12 months of cohabiting (unless you have a child together or de facto relationships are illegal in your country of origin).
Under family law it is different again: a minimum of two years (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship).
Where married couples use IVF, both spouses are automatically legal parents. But for de facto couples using reproductive technologies, their child’s parentage depends on whether a de facto relationship is proven to exist.
Couples who are or were married must file for property and/or spousal maintenance proceedings in the Family Court within one year of finalising a divorce, but have the option to agree to an extension of time in which to file. No such provision exists for de facto couples; they must file proceedings within two years.
In many states, a new marriage nullifies an existing will, unless that will was quite specifically worded. This is not the case when you enter a new de facto relationship. In the latter situation, if you die before making a new will, a court might need to decide how your assets are allocated (with costs borne by your estate).
In all contexts, de facto relationships require significant proof, which means partners may have to provide evidence about their living and child care arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and how they present as a couple in public. These criteria can be absent from a heterosexual marriage, but it is still deemed a marriage.