Family Law Blog

Married or De Facto – What’s the difference?

Posted by on 21 Aug 2012

Marriage or Defacto - What's the difference?

To propose or not to propose? This is the question facing many Australians today.

Research undertaken by RSVP Date of the Nation that was reported in the Sydney Morning Herald on 9 August 2012 suggests that many single Australians are seeking a life-long partner but marriage itself  is not necessarily a priority (“Who wants to get married? Daisy Dumas).

Interestingly, the research indicates that singles in the "Baby Boomers" generation have less preference for marriage than those from “Gen Y”.  The article goes on to suggest that experiences such as the breakdown of an earlier marriage, and a case of “been there, done that”,  are the likely cause of a reduced desire to marry for those Baby Boomers.  Of course, the statistics differ between the genders.

So, despite the emotional and social reasons for marriage, how is living together any different to being married?  What do the rings and the certificate actually mean? Apparently, if a couple separated after 1 March 2009, they don't mean much in the sphere of family law.

Who gets what after a separation?

When it comes to separation and dividing the assets of a relationship, de facto couples (that is couples living together for at least two years, those that have a child together or who meet a host of other factors) who separated prior to 1 March 2009 are governed by State legislation and, at least in New South Wales, the emphasis is on financial contributions to the relationship.   Unlike married couples who have always come within the federal law and receive “credit” for non-financial contributions, such as those as homemaker and parent, a property settlement for de facto couples separating prior to that time centred on who paid more into the assets or daily maintenance of the parties to the relationship.

Changes to the Family Law Act in 2009 brought de facto couples within the federal law and so those couples who separate after  1 March 2009 are, at least for the purposes of a property settlement and division of assets, treated no differently to married couples. This legislation also represents a step closer to equality for homosexual couples as they are also covered by the change to legislation.

De facto couples are also able to enter into what Hollywood refers to as a “prenup” (or a Binding Financial Agreement) both before, during or after their relationship.  This means that the division of any assets and property can be decided by the two parties when they want.

As time goes on the distinction between married and de facto couples will continue to decrease as we come across fewer cases of de facto couples who have separated prior to 1 March 2009 and are seeking a property settlement and similarly we will continue to see changing attitudes towards relationships.