It is true that while de facto couples may be able to assert some of the same rights as married couples, they often have to expend significant time, money and unnecessary heartache to do so. Marriage allows people to access a complete package of rights simply by showing their marriage certificate or ticking a box and is based on their mutual promises to one another rather than proving their relationship meets particular interdependency criteria. Unlike de facto relationships, marriage is recognized nationally and internationally.
The laws regarding de facto couples differ between states and the Commonwealth, and from one right to another. For example, for Centrelink purposes, you are a de facto couple from the moment you start living together; for migration law, it is after 12 months of cohabiting (unless you have a child together or de facto relationships are illegal in your country of origin). Under family law it is different again: a minimum of two years (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship).
In all contexts, de facto relationships require significant proof, which means partners may have to provide evidence about their living and child care arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and how they present as a couple in public. These criteria can be absent from a heterosexual marriage, but it is still deemed a marriage.
Couples who are or were married and have undergone couples therapy must file for property and/or spousal maintenance proceedings in the Family Court within one year of finalising a divorce. However, they do have the option to agree to an extension of time in which to file.
While married and de facto relationships largely have equal standing before the law, only marriage is immediate and incontrovertible. Difficulties for de facto couples arise from the complex inter-relationship between the “burden of proof”, institutionalized homophobia, and the sticky situations that can arise when relationships break down.
Three reasons why the decisions of Joyce and Nash may be difficult to challenge
