Putting aside the moral issues surrounding the current debate on marriage equality, with the postal plebiscite on same sex marriage underway, it’s important for people to know what marriage equality means from a legal perspective.
Under current legislations, same sex couples have similar rights as a de facto couple, without the right or option to marry.
While on the face of it, this may not seem like a big issue, it means that the rights of same sex couples are purely restricted to the de facto definition, which includes the burden of proving or registering their relationship with their state of residency in order to obtain any legal benefit or rights of being in a relationship.
This is not as straight forward as it seems as there are different tests and thresholds for de facto and same sex couples between the various States and the Commonwealth.
For example, for Centrelink purposes, a de facto relationship begins from the moment a couple start living together. Yet, under the Family Law Act 1975 (Cth), a de facto relationship is defined as a couple having lived together for a minimum of two years unless:
- there is a child of the relationship;
- the relationship is registered; or
- it can be proven that the parties have made significant financial and non-financial contributions towards the relationship.
So, what does legal registration of a de facto or same sex relationship actually mean?
Whilst most States have some minor differences in terms of the criteria for registering relationships, in order to register a de facto or same sex relationship, a de facto couple or same sex couple essentially need to prove a personal or financial commitment in support of a domestic nature for the material benefit of one another.
The requirements are different in the Northern Territory and Western Australia as they do not currently have legislation for registering a de facto relationship. Registering a relationship is also not binding or necessarily recognised overseas.
In contrast, married couples are not required to prove that they have met this criteria as the legal act of marriage is considered enough, both domestically and internationally.
With regard to separation and children’s issues, there is a further onus on same sex and de facto couples to establish that a relationship existed, particularly in cases where a child has been born through IVF treatment. As previous cases have shown the legal parentage of the child depends on whether a de facto relationship is proven to exist. It is not enough for a party to allege that a de facto relationship existed simply because a child was born through IVF, the de facto couple still needs to satisfy the other criteria mentioned above in order to prove that a de facto relationship existed.
In contrast however, married couples who utilise IVF treatments to conceive a child are automatically registered as the legal parents of the child. There is therefore no standard of proof required by either parent or party to any marital family law proceedings regarding parentage, if it involves married couples.
There are also differences in time limitations between married couples and de facto couples in the family law jurisdiction. Under the current legislation, married couples have one year from the date of divorce in order to finalise property and/or spousal maintenance proceedings in Court, with the option for the parties to agree to an extension of time if required.
In contrast, no such provision for extension is currently in place for de facto and same sex couples and there is a mandatory time limit of two years from the date of separation to issue any proceedings.
From a Wills & Estate perspective, under the current legislation in South Australia, divorce and a new marriage is enough to nullify an existing Will, unless that Will was specifically worded to still include the former spouse to be a beneficiary. This is not automatically the case in de facto and same sex relationships.
Should a person in a same sex or de facto relationship die before making or updating their Will, the surviving partner (or ex-partner) will still need to prove that a relationship existed in order to obtain any benefit from their deceased partner’s estate or even to deal with the distribution of the estate.
In order for a de facto partner or same sex partner to contest the estate of their deceased partner, the criteria changes again. Pursuant to section 6 of the Inheritance (Family Provision) Act 1972 (SA), the definition of a “domestic partner” requires that the parties lived together in a close personal relationship for at least three years or produced a child.
Similar issues of proving a relationship arise in situations where a power of attorney or Advanced Care Directive is required, claiming superannuation and being listed as the domestic partner on death certificate, particularly if a person has died intestate (without a Will).
Until any decision is made in relation to changing legislation to incorporate same sex marriage, it is important for same sex couples to do all that they can to establish enough evidence to meet the criteria or definition of domestic partner in order to obtain any legal benefit from their same sex relationship.
Whilst there is no set criteria to prove a relationship, some common ways of doing this include:
- registering the relationship under state of residency (if available);
- living together beyond the time limits imposed under the various jurisdictions;
- joining finances and contributing financially and non-financially towards the relationship;
- and presenting themselves publically as a couple living in a relationship together.