Anaya Nolan
Australia does not have common-law marriage as it is understood under common law. However, the term common-law marriage has been used in Australia, England, and Wales to refer to unmarried, cohabiting heterosexual couples. In Australia, de facto relationships are legally recognised in the Family Law Act (Commonwealth) since March 1, 2009, and are applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. De facto relationships are defined as two persons of the same or opposite sex living together as a couple on a genuine domestic basis.
| Characteristics | Values |
|---|---|
| Common-law marriage | Does not exist in Australia |
| De facto relationships | Recognised in the Family Law Act (Commonwealth) since 1 March 2009 |
| De facto relationship definition | Two persons of the same or opposite sex living together as a couple "on a genuine domestic basis" |
| De facto relationship recognition | Depends on the state or territory of residence |
| De facto relationship registration | Provides automatic recognition by the law anywhere in Australia |
| De facto relationship benefits | Easier to claim welfare entitlements and obtain relief relating to children, property, or maintenance |
| Same-sex marriage | Redefinition of "the juristic conception of marriage" as being between "persons" makes it close-to-inconceivable that same-sex unions might not qualify |
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What You'll Learn
Australia does not have common-law marriage
In Australia, when two people live together as a couple, their relationship can be recognised by law as a de facto relationship, even if they are not married. A de facto relationship is defined in the Family Law Act 1975 as two persons of the same or opposite sex living together as a couple "on a genuine domestic basis". The process and requirements for having a de facto relationship recognised differ depending on the state or territory of residence. For example, in South Australia, de facto relationships are registered under the Relationship Register Act 2016, which provides automatic recognition by the law anywhere in Australia.
Since March 1, 2009, de facto relationships have been recognised in the Family Law Act (Commonwealth), applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction. Western Australia is the only state that has not referred its jurisdiction, so state legislation still applies. There is also no federal recognition of de facto relationships existing outside of Australia, so this is also a state matter.
The Australian common law marriage is in an unusually amorphous condition due to repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements, and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The requirement of consent is definitive in the Marriage Act, as a "marriage" must be "voluntarily entered". While the redefinition of "the juristic conception of marriage" in Australia as being between "persons" suggests that same-sex unions could qualify as common-law marriages, this remains uncertain.
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De facto relationships recognised in Family Law Act
Australia does not recognise common-law marriage. However, de facto relationships have been recognised in the Family Law Act (Commonwealth) since 1 March 2009. This Act is applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth. Western Australia, which has not referred its jurisdiction, still has valid state legislation.
A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that a couple lives together on a "genuine domestic basis". This definition includes couples of the same or opposite sex, but does not include couples who are legally married or related by family. The Federal Circuit and Family Court of Australia deals with issues related to the children of de facto relationships in the same way as the children of married couples.
The Family Law Act provides de facto couples with similar rights to married couples in relation to the division of property and spousal maintenance. The Act also recognises the validity of cohabitation and separation agreements to determine financial matters between the couple, provided they are in writing, signed by both parties, and accompanied by a solicitor's certificate confirming independent legal advice was received.
The Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act is considering extending the Act to cover disputes arising from de facto relationships, particularly regarding property rights, which are currently poorly defined. Most states and territories allow de facto relationships to be registered, which provides proof of the relationship's duration and can create rights for property division, even if the couple has not lived together for two years.
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Same-sex marriage and common law
Australia does not recognise common-law marriage. However, de facto relationships are recognised in Australia, and these can include same-sex couples. De facto relationships have been recognised in the Family Law Act (Commonwealth) since March 1, 2009, and they are applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth. De facto couples have similar rights and responsibilities to married couples, although these rights may be difficult to assert and are not always recognised in practice.
The legal recognition of same-sex relationships in Australia was previously limited to de facto relationships in certain circumstances. The criteria for a de facto relationship include the length of time the couple has lived together, the extent of their financial mixing, and the public appearance of their relationship.
The Marriage Act 1961 is a federal act of the Parliament of Australia that has governed the laws and regulations regarding lawful marriages in Australia since 1961. In 2004, the Howard government amended the Marriage Act to define marriage as the exclusive "union of one man and one woman, to the exclusion of all others". This amendment also banned the recognition of same-sex marriages entered into in other jurisdictions.
However, in 2013, the Australian Capital Territory (ACT) passed a law allowing same-sex marriage. The High Court struck down this law five days after the first same-sex weddings were celebrated in the ACT, ruling that all laws regarding marriage were the exclusive power of the Commonwealth and that no state or territory law could create any other type of marriage.
In 2017, the Marriage Act was amended again to recognise same-sex marriages. Since December 9, 2017, same-sex married couples have been treated the same as other married couples in Australia, and same-sex marriages entered into overseas are also recognised.
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Common law marriage in international private law
Australia does not have common law marriage as it is understood under common law. However, there are more reported cases on common-law marriages in private international law in Australia than in any other country. The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland.
In some cases, a marriage that is invalid under the law of the place where it was solemnised (lex loci celebrationis) may nevertheless be recognised as valid if it meets the requirements of a common-law marriage. These originate in the English canon law of the 18th century, which includes the central requirement of the parties' present declaration that they are married. The parties also had to meet the essentials of a Christian marriage, as described in Hyde v Hyde (1866): "a voluntary union for life of one man and one woman to the exclusion of all others".
The preconditions for a court to ignore the lex loci have been significantly liberalised in Australia. Additional uncertainty in the nature of a common-law marriage is created by a combination of repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements, and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The redefinition of "the juristic conception of marriage" in Australia (and Canada) as being between "persons" is explicit, and it is close-to-inconceivable that same-sex unions might not qualify.
The birthright rationale for common-law marriage was strongly represented in Australian adjudication into the 1950s. Some judges allowed recourse to common-law marriage only for British subjects and, when lex loci requirements failed for a marriage between other nationals, considered that the governing law for questions of capacity and consent – the lex domicilii – would apply. After Taczanowska, the second resort rationale for the common-law marriage exception was also recognised in Australia. This rationale does not limit us to the common-law marriage, especially when, with Australia’s bifurcated choice of law regime for marriage, the lex domicilii has some claim to be the law of second resort.
International matrimonial law is an area of private international law (or conflict of laws in the United States) that deals with relations between spouses and former spouses on issues of marriage, divorce, and child custody. The Hague Conference on Private International Law concluded the Marriage Validity Convention in 1978, which Australia implemented in 1985. Part VA of the Marriage Act implements the Convention's provisions for recognising foreign marriages, providing for a marriage that was valid or validated according to “the law in force in the foreign country ... in which the marriage was solemnised” to be recognised in Australia.
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Custody and guardianship of children
In Australia, the concept of common-law marriage is not legally recognized. This means that couples who live together for an extended period of time, even if they consider themselves as married, do not have the same legal rights and protections as married couples. This has important implications when it comes to matters such as property ownership and, especially, the custody and guardianship of children.
When it comes to children, the law in Australia recognizes the importance of ensuring their best interests are met. In the event of a relationship breakdown, the courts will make decisions regarding child custody and guardianship based on what they determine to be in the child's best interests. This means that the concept of 'equal shared parental responsibility' is often applied, where both parents are expected to make important long-term decisions about their children together. However, the day-to-day care of the child, or 'living arrangements', can vary and is decided by the court on a case-by-case basis.
If a couple is married, and there is a dispute over child custody and guardianship, the court will take this into consideration when applying the 'best interests' principle. However, if a couple is in a de facto relationship (including same-sex couples), the court may require additional evidence of the relationship to establish the rights of each partner with respect to the child/children. This is where the lack of recognition of common-law marriage can become complicated.
In these situations, the court may require evidence of a 'de facto relationship' which can include factors such as the length of the relationship, any property or finances owned together, and whether or not the couple has children. If a couple can establish this, then the court will generally recognize that both partners have a say in the child's upbringing, and the usual 'best interests' principle will be applied. However, if a couple cannot establish a de facto relationship, then the court may only recognize one partner as having legal custody and guardianship rights, which can be a difficult and emotional process for the non-legal parent.
It is important to note that Australia has a range of family court services and legal aid options available to help couples navigate these complex issues. Seeking legal advice early on is often recommended to ensure the best outcome for all involved, especially the children. Additionally, mediation services are often encouraged as a way to help couples come to mutual agreements outside of the court process.
In summary, while Australia does not recognize common-law marriage, the law does provide ways to establish de facto relationships, which can have an impact on child custody and guardianship decisions. The 'best interests' principle always applies, ensuring that the needs of children are put first, regardless of the relationship status or structure of their parents.
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Frequently asked questions
Australia does not have common-law marriage as it is understood under common law. However, the term "de facto relationship" is often used to refer to relationships between any two persons who are not married but are living together.
A de facto relationship in Australia is defined as two persons of the same or opposite sex living together as a couple on a "genuine domestic basis". This term is recognised in the Family Law Act (Commonwealth) since March 1, 2009, and is applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth.
Registering a de facto relationship in Australia provides legal recognition and can make it easier to claim certain welfare entitlements, especially for same-sex couples. It also allows couples to obtain relief relating to children, property, or maintenance without needing to be legally married.
The process and requirements for registering a de facto relationship in Australia depend on your state or territory of residence. For example, in South Australia, de facto relationships are registered under the Relationship Register Act 2016.
If your de facto relationship breaks down, you can apply to the Federal Circuit and Family Court of Australia to have financial matters determined in the same way as married couples. Mediation can help both parties reach a fair and equitable agreement, and the court may make orders about financial matters, including division of assets and partner maintenance.
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