Australia: Marriage Without The Ceremony

Last Updated: 13 November 2008

Article by Andrew McCormack, Associate

After a number of false starts under the previous government, at 9:01am on 25 June 2008 Federal Attorney-General Robert McCelland introduced a Bill to amend the Family Law Act 1975 to bring de facto financial matters under the same jurisdiction as marriages. The Bill was passed the Senate on 10 November 2008, the House of Representatives on 11 November 2008 and is now on its way to the Governor-General for her assent.

The Family Law Amendment (De facto financial matters and other measures) Bill 2008 can quite properly be described as one of the most significant changes in relationship law in Australia since the introduction of the Family Law Act in 1975.

For the first time the division of property for de facto couples (be they opposite sex or same-sex) will be decided by uniform legislation and this will take place in the federal courts exercising jurisdiction under the Family Law Act. De facto couples who separate will no longer need to litigate on two fronts, that is, litigation in state courts to divide property and litigation in federal courts regarding parenting arrangements for children.

Too Long In The Wilderness

The Attorney-General has described the Bill in his second reading speech as 'long overdue'. It certainly is. In 2003 the Queensland Parliament passed the Commonwealth Powers (De Facto Relationships) Act 2003. The Act referred powers to the Commonwealth in respect of both opposite-sex and same-sex de facto relationships. The enactment of this legislation was preceded by an agreement between the Commonwealth, the states and territories to refer powers to the Commonwealth.

To date, the following states have referred their powers to the Commonwealth:

  • Queensland
  • New South Wales
  • Victoria; and
  • Tasmania

Western Australia has always dealt with de facto matters in the Family Court of Western Australia, an arm of that state's District Court. The Commonwealth has the power to extend this legislation to the Australian Capital and Northern territories.

This leaves South Australia still wandering in the wilderness. The Bill refers to participating jurisdictions and also provides for jurisdictions to participate or withdraw from the scheme at any point.

What's In The Bill?

The Bill is divided into two parts, the amendments to be made to the Family Law Act and transitional provisions.

Much to the annoyance of the State Judiciary, the amendments to the Act will only apply to de facto relationships that breakdown after the commencement of the Bill and there is no provision for matters presently before the State courts to be transferred to the Federal family law courts. Parties who have separated but have not yet commenced proceedings can "opt in" and take advantage of the amendments and access the Federal family law courts.

The most significant change from the previous State based pieces of legislation is that there will now be a right to spousal maintenance on the breakdown of a de facto relationship. This is an extreme departure from the present situation in most States where there is no right to claim maintenance.

This will be a significant problem for some people who have entered into de facto relationships to avoid the rights and obligations of property settlement and maintenance claims that are normally attached to marriage breakdowns. An added complication will arise as the amendments to the Family Law Act now codify the position that you can be married and in a de facto relationship at the same time. It is also possible for a person to find themselves in a situation were they are in multiple simultaneous de facto relationships. This position is nothing new as the Supreme Court of New South Wales has considered this problem as far back as 1989. At present, there is no reported case law on this topic in Queensland.

The Amendments To The Family Law Act

How Can They Do This?

One important question needs to be asked – how is the Family Law Act being extended to de facto couples? The drafters of this legislation have taken into account the problems caused by the Commonwealth Constitution so far as it allows the Commonwealth to the make laws relating to marriage and matrimonial causes. The Bill will insert a definition of de facto financial cause into the existing Family Law Act. By doing this, they have overcome the difficulty associated with the present definition of matrimonial cause.

A de facto financial cause can be:

  • Proceedings between parties to a de facto relationship regarding;

    • the division of property between de facto partners; or
    • the maintenance of a de facto partner after the relationship has broken down.

The Bill also extends the bankruptcy protection provisions and the splitting of superannuation entitlements already in the Act to de facto relationships. For all intents and purposes, a de facto financial cause will look and feel the same as a matrimonial cause. Upon reading the Bill, it is clear that whilst it amends the Family Law Act, it also duplicates numerous provisions to specifically apply them to de facto property arrangements. It would appear that the Family Law Act will now take on the legislative complexity of the tax law!

How Will Couples Be Able To Access The Legislation?

The Bill imports a number of key concepts that appear in State legislation including the need for the relationship to have existed for at least a period of two years, a child has been born to the relationship or one of the parties to the relationship having made a significant contribution that would amount to a serious injustice if it could not be remedied by a order of a Court.

Declarations About A Relationship

It has been noted previously that there is a difficulty associated with determining when a de facto relationship commences and ends. They are unlike marriages where there is a definitive start to the marriage relationship (characterised by the formal solemnisation of a marriage by an approved celebrant) and a definitive end (the granting of a divorce order by the Federal Magistrates Court).

State legislation (particularly Queensland's Property Law Act 1974) has allowed a Court to determine whether parties have lived together in a de facto relationship and for what period or periods. The Courts have been guided by the decision in D v. McA and the codification of this in the various pieces of State legislation (for instance section 32DA of the Acts Interpretation Act 1954 (Qld)).

The amendments foreshadowed in the Bill take these difficulties into account and have reproduced the factors on which the State courts have previously made their determinations. It is possible that there could now be a wave of applications to the Federal family law courts seeking declarations as whether a relationship exists. This is particularly relevant if a person finds themselves in the middle of multiple partners each making a competing claim against property.

Maintenance And Property Applications

The Bill provides that a de facto partner can make an application to the Court for the division of property or for a maintenance order to be made in their favour on the same terms as that of their married counterparts. The Bill provides for the insertion of particular sections that duplicate the provisions of sections 75 and 79 for application to de facto partners to ensure that there is equality in this respect.

The duplication of the provisions of section 78 regarding declarations will also extend the right of seeking declarations to de facto financial causes. This will be very useful for some litigants particularly where property is held in the name of one de facto spouse and there will be an argument as to the interest the other party has in the property. This is in stark contrast to the days gone by where de facto partners had to rely on constructive trust principles in certain circumstances.

Financial Agreements

The Bill inserts a new Part VIIAB which houses the bulk of the amendments relating to de facto matters. Division 4 of the new Part VIIAB contains the amendments relating to financial agreements. This will, for the first time, provide a uniform law in respect of entering into financial agreements for de facto couples.

Division 4 duplicates the existing provisions relating to financial agreements to enable them to be accessed by de facto couples. The provisions allow (in a similar manner to that as married couples) for parties to enter into agreements relating for property and maintenance:

  • before a de facto relationship commences
  • during a de facto relationship; and
  • at the end of a de facto relationship.

The division also contains provisions to allow previous agreements made under State laws to be considered by the Federal courts on the breakdown of a de facto relationship after the commencement of those provisions. It is important to note particularly when the State agreements at present do not provide for maintenance to be covered. One wonders if there will be some transitional implications regarding the enforceability of these provisions.

Further, the new provisions import the same strict compliance issues that have arisen regarding section 90G and the decision of the Full Court in Black v. Black. In the interim and with the knowledge of these changes, it would be prudent to ensure that all State based agreements that are entered into by clients comply with the same extent as agreements made under sections 90B, 90C or 90D.

Duty And Tax Implications

The Bill extends the exemption of orders of the Court and financial agreements made under the Act from stamp or other State based duties. Again, this is duplication but an important provision as the exemptions from duty do vary from State to State. The Duties Act 2001 (Qld) already contains a provision (s. 422) that provides for no duty to be payable where an agreement or an order of a Court is made in respect of the division of de facto property.

The Bill will make consequential amendments what is known as the "marriage breakdown CGT rollover" to extend the principles to financial agreement made by de facto relationships to ensure that equality is maintained between the two classes of relationships. The present wording of the legislation (particularly subdivision 126 of the ITAA 1997) will be amended to capture de facto relationships.

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.