Governments move on de facto relationships
The Federal and State governments are working to streamline the legislation governing de facto couples. New laws are expected to be in place over the coming months and will provide de facto couples (including same sex couples) with fairer and more uniform treatment.
Marriage has traditionally been seen as the ideal culmination of a relationship - a man and a woman living together in blissful harmony for the rest of their lives. However, as societies have changed, divorce has become more acceptable and more common.
Some cultures have allowed divorce in certain circumstances, but in our culture it was frowned upon and stigmatised. Moreover, prior to gender equality changes last century, Australian women found it very difficult to support themselves (and their children) if they divorced.
Almost half of all marriages now end in divorce. Recent figures from the Australian Bureau of Statistics show that the number of divorces has dropped over the last two decades. In 2001 55,330 divorces were granted, but this number has been decreasing since. While it’s relatively easy to obtain and collate information about marriage and divorce rates, this is not so for people living in de facto or domestic relationships.
There is no requirement to register a de facto relationship, and only incidental information (with the exception of a census) can provide us with an idea of how many people live this way - eg: notifications to Centrelink or on tax returns.
As the stigma and prohibitions have been removed from living together while unmarried, the number of people choosing to live in a de facto relationship has increased significantly. This does not mean this is better than marriage, as de facto relationships can also break down.
The law governing property in de facto relationship breakdowns in New South Wales was created in 1984. It was a response to changes in society and the way people choose to live their lives. In the 24 years since, there has been an increase in the circumstances which led to its enactment - decreasing marriage and divorce rates as more people choose de facto relationships.
There are many reasons for entering into a de facto relationship, such as the concept of “try before you buy”, where a couple may live together prior to getting married, or those that believe that marriage is “just a piece of paper”, to those that do not need the formality of a legal marriage.
However, similar problems to those in a marriage breakdown arise when dividing property in de facto relationships. While de facto couples may successfully avoid the formality of marriage, they can leave themselves exposed and at significant risk of a claim against them if they do not finalise their separation in a formal, legal way.
So far, in New South Wales at least, the provisions for dealing with separation have been significantly different to those for married couples. Further, each State has its own legislation. With an increasingly mobile population, this can lead to even more problems for the couple who wanted to avoid formalities in the first place!
There are also other ramifications such as for wills and estates, benefit entitlements, and the legal reality of being able to be married to one person while living in a de facto relationship with another.
Please contact the Kells Family Law Team for more information or expert advice on other family law matters.
