Relationship Rights Q & A November 2005

Jenni Millbank is Special Advisor to Watts McCray Lawyers and Associate Professor of Law at the University of Sydney.

What relationship rights do I have at the moment?

If you live with your partner in a committed relationship then under NSW law you are in a de facto relationship. This means your relationship is recognised for almost all purposes in NSW law, such as guardianship, inheritance, property division and compensation laws (the exception is adoption). For some laws, such as property division and inheritance, you must generally have lived together for 2 years to qualify, but for most there is no time requirement.

What rights do straight couples have that I don’t have?

In NSW the main difference is that opposite-sex married and de facto couples can apply to adopt children as couples, while lesbian and gay applicants are only able to apply as individuals. In practice, individual applicants may have a lower priority.

Heterosexual couples also have comprehensive recognition in federal law – such as immigration, superannuation, taxation and family law. There is very limited recognition of same-sex couples in these areas of federal law.

How is de facto recognition different from marriage or civil unions?

There are a number of differences – in how you get to be in one, in the rights it gives you and whether the status goes with you if you move or travel.

De facto recognition automatically applies once you meet set criteria. This is good in that you don’t need to do anything formal to be recognised as a couple, but it is bad if there are aspects of your relationship where you didn’t want to be recognised– for instance if you never intend to share property. (Note however that this is the same for heterosexual couples, even if they chose not to marry, they will be ascribed de facto status). All couples can opt-out of some obligations, for instance by signing a “domestic relationship agreement” – basically as a “pre-nup” - to order property in the event of a break-up. Likewise couples can opt-out of ascribed inheritance rules by writing a will.

De facto recognition gives you most of the same rights as unmarried heterosexual couples and married couples under state law. In federal law heterosexual de facto couples have extensive recognition but this has not yet been extended to same-sex couples.

Whether or not you still have rights as a de facto if you go somewhere else will depend on the laws there. At the moment every state and territory in Australia except South Australia has very similar de facto laws to NSW - so you would be recognised everywhere except South Australia. There is de facto recognition in Canada and New Zealand, but not, for instance, in the United States.

Marriage requires a couple to register their intention to marry a month in advance and then go through a formal process. For heterosexual couples marriage in fact gives very few additional rights in Australia compared to de facto recognition (the main one is access to the Family Court to divide property on relationship breakdown instead of the more expensive and less flexible state courts– but this last distinction is also soon to change). Marriage is a more easily portable status than de facto, it is recognised in all state and federal law and in the laws of other countries also.

Same-sex couples cannot marry in Australia. As a result of the 2004 marriage ban, if same-sex couples do marry elsewhere (for example in Canada), their marriage will not be recognised in Australia.

Civil Unions require couples to go through a formal registration process similar to marriage. They exist in many European countries and have recently been introduced in the UK and New Zealand. Civil unions have been described as “marriage by any other name” when they grant equal rights and as “marriage-lite” when they do not. Civil unions may not be as portable as marriage, because they are a new status so other countries have to pass laws to specifically recognise them (although note that the UK and New Zealand have already done so).

There are no civil union laws in Australia to date. It is possible that the federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). This remains to be tested.

The states and territories could grant civil unions (and Tasmania already has a registered partnership scheme which is similar) but these would not grant any greater rights than those already held by de factos and could not translate into federal law.

This column will be updated every month. You can email questions to glrl@glrl.org.au (put “Q&A” in the subject line). Please note that this column is information of a general nature only and does not constitute legal advice.

If you need legal assistance you can call Watts McCray on 9635 4266 and speak to Lorraine to make an appointment.