Does marriage matter in family law?

The Commonwealth has the power “to make laws for the peace, order and good Government of the Commonwealth with respect to marriage.”

Marika McMahon


O’Farrell Robertson McMahon Lawyers

Deputy Chair, Be.Bendigo Board of Directors


Thankfully, many laws that discriminated between married and unmarried couples or against same sex couples have been rectified in recent years, such as superannuation laws.

However, whether or not a couple were married still does create a difference in family law.

The reason for this goes right back to the constitution — without wanting to sound too Dennis Denuto! When the constitution was adopted in 1901 it was the result of intense negotiations between the states as to what powers would be given to the Commonwealth and what would be kept by the state. The negotiations were intense because it meant who got the money from the powers — like taxes.

Back in 1901 the constitution drafters probably only thought of marriage, not other relationships and so pursuant to s51 (xxi) the Commonwealth has power “to make laws for the peace, order and good Government of the Commonwealth with respect to marriage.”

That’s where the Commonwealth has the power to make laws regarding marriage — and the breakdown of marriage being the Family Law Act

However, that meant that for many years the Family Law Act couldn’t cover property settlements between non-married (de facto) couples. That was eventually worked around by the States referring their relevant powers for that to the Commonwealth.

So now, the Family Law Act can sort out property matters for both married and non-married couples on the breakdown of their relationship.

However, if there has been no marriage, the path to a property settlement is a little different, which means that same sex couples, because they still can’t be married in Australia, are left with only the no marriage path.

So what’s the difference?

The big difference is the time limits.

If your relationship has ended and you are married you can apply to a court for a property settlement any time up until 12 months after your divorce. You don’t have to get a divorce (unless you are remarrying). Therefore, if you don’t get divorced you could apply to the court for a property settlement 20 years after you separated if you were married.

By contrast, if you are not married, you only have 2 years from the date of separation to bring an application for a property settlement.

How you prove you are eligible for a property settlement is a different test between married and unmarried couples, a difference which unfairly impacts upon same sex couple who can’t currently choose not to be married.

If you are married, you just need to be able to prove your marriage with your marriage certificate to be eligible for a property settlement.

By contrast if you are not married your property settlement has to be pursuant to Part VIIIAB of the Family Law Act — “Financial matters relating to de facto relationships”, which means you need to be able to prove you were in a de facto relationship to be eligible for a property settlement.

A de facto relationship is defined by the Family Law Act as, “a couple living together on a genuine domestic basis,” with the

Court taking into account circumstances such as the following to decide whether it is such a relationship:

  • The duration of the relationship
  • The nature and extent of their common residence
  • Whether a sexual relationship exists
  • The degree of financial dependence or interdependence and any arrangements for financial support between them
  • The ownership, use and acquisition of their property
  • The degree of mutual commitment to a shared life
  • Whether the relationship is or was registered
  • The care and support of children
  • The reputation and public aspects of the relationship

I’m sure you can envisage the types of evidence and arguments over those tests.

For many separated couples, they both want the property sorted so there is no dispute about whether or not there was a de facto relationship.

For some though there may be a dispute about when exactly the de facto relationship commenced or when it ended, which could be significant when it comes to who gets what.

However, too many times there is an argument about whether the relationship was even a de facto one. Without the current option of marriage this is always a risk for same sex couples and can lead to difficult proceedings and too many details of the relationship being aired.

So not being able to be married does lead to legal differences. Unfair legal differences that can have serious and long lasting effects upon people.


This article courtesy of Marika McMahon. For more articles by this author click here.