De facto vs marriage: what’s the difference for same-sex couples?

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Like many countries across the globe, Australia struggled in their willingness to accept same-sex marriages. However in December 2017 with the passing of the Marriage Amendment Bill, the Marriage Act of 1961 was amended, changing the definition of marriage and religious freedom in Australia.

The family lawyers at Owen Hodge Lawyers followed the developments closely from the outset. While it has taken years and tremendous effort on the part of many, the bill allowing couples of any gender to marry one another is finally law in Australia. And it has prompted many people to ask the question: de facto vs marriage – what’s the difference?


de facto vs marriage - both options are now open to same-sex couples

(source: Business Insider)

Legalising same-sex marriage: the changes

While NSW ultimately came through with a yes vote, our state was the most divided on the issue with 42% of the population voting no. Nevertheless, let’s look at what the changes in law mean.

The changes are reflected in several areas including:

  • The Internal Revenue Code
  • Social Security Act
  • Worker’s Compensation
  • Retirement Benefits
  • Disability and Death Benefits
  • Insurance
  • Inheritance
  • Immigration

In all of these areas, the legal language has been changed from “husband and/or wife” to the all-inclusive language of spouse or married couple or married person. As a result, the rights of those who have always been referred to as “husband and wife” have now been extended to all married couples. All areas of the law that previously referred to survivor benefits being the right of a husband or wife, are now extended to all persons or spouses who would be the natural beneficiary of marriage.

Who can officiate a marriage ceremony?

In addition, the marriage amendment redefines those who can officiate these occasions. In the past, the language only allowed for an “authorised celebrant” and was exclusive to various religious definitions.

However, with the changing of the Marriage Act of 1961, the definition of authorised celebrant has also been changed. The new language still allows for the celebrant to be of a religious nature or persuasion, but now also allows for the celebrant to be any of the following:

  • A minister of religion
  • Australian Defence celebrant
  • A marriage celebrant
  • A religious marriage celebrant
  • A chaplain

Any of the aforementioned types of registered persons can now perform a marriage ceremony of any two persons desiring to be the spouse of the other.

In addition, the New South Wales marriage registry will also recognise any marriage that has been codified overseas. From here forward, those who are considered married in another jurisdiction, be it within Australia or otherwise, will also be recognised and considered married in Australia.

De facto vs marriage: de facto law in Australia

The right to marry also grants same-sex couples the right to continue to engage in de facto relationships, Australia. While it is believed that many same-sex couples will opt for the traditional marriage path, it is also recognised that many may not. The option is open for these couples to enter into a different form of commitment that will also be recognised.

As such, any same-sex couple that meets the criteria for a de facto relationship can claim the same legal rights as those granted to married couples.

If a same-sex couple is engaged in a relationship that maintains the characteristics of a permanent commitment, they will be considered to be in a de facto commitment. Under these circumstances, they too will have access to the various laws and supports available to those who are married under the Family Law Act of 1975.

While same-sex couples will share all of the benefits of marriage that traditional couples do, they will also share the same responsibilities with regard to its dissolution or breakdown. These rights are also extended to de facto couples. In the event that either a marriage or a de facto relationship breaks down and cannot continue, all couples regardless of gender or relationship status will have access to the Family Court system and all couples will have equal rights during any dissolution process.

So, for same-sex couples, de facto vs marriage is now an option, with the same benefits and drawbacks as for heterosexual couples.

What happens when a de facto relationship ends?

Hence, if a de facto relationship of a same-sex couple requires permanent separation, the court will look to the following 4 factors to determine the proper distribution of shared assets.

Factor 1: You and your partner were in a true de facto relationship

Factor 2: Any one of the four following criteria can be shown

  1. That the period for the de facto relationship is at least 2 years
  2. That there is a child in the de facto relationship
  3. That the relationship is or was registered under a prescribed law of a State or Territory
  4. When assessing property settlements or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.

Factor 3: The couple has a local connection to the jurisdiction they are requesting assistance from

Factor 4: The couple’s relationship broke down after 1 March 2009

In accordance with the changes in the law, all married or de facto couples will need to remember that the following life areas will be reviewed during the course of the dissolution of the marriage or relationship:

  • finances
  • social relationships
  • nature of household
  • presence or absence of a sexual relationship
  • nature of the commitment


Today, couples of any gender in Australia can enter into marriage or a de facto relationship with access to equal legal rights and responsibilities during the course of the committed relationship or its dissolution. As far as de facto vs marriage goes, there’s now no difference in entitlements or obligations between heterosexual couples and same-sex couples.

In the event that you find yourself in need of assistance or a greater understanding of the law of marriage in New South Wales Australia, we have some of the best marriage lawyers Sydney has to offer. So please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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