Relationships in contemporary Australian society are marked by changes to our social dynamics, such as the ever increasing population and growth of our multicultural and inclusive society.

Yet there are only two formal types of relationships in the eyes of the Australian legal system: a de facto relationship or a marriage.

Save for the obvious differences, and of course differences in cultural practices, there is one significant difference between the two.

The Marriage Act 1961 defines “marriage” as being ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.  Key to this definition are the terms “union”, “exclusion of all others”, and “voluntarily entered into for life”.

Whilst there is no firm definition of “de facto relationship”, a de facto relationship can exist between two persons providing they are:

  1. not married to each other;
  2. are not related; and
  3. are living on a genuine domestic basis.

The Family Law Act 1975 identifies a number of circumstances from which a de facto relationship may arise, which include:

  • the duration of the relationship;
  • the nature and extent of the parties’ common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence;
  • whether the parties’ own, use or have acquired property jointly;
  • the degree of the parties’ mutual commitment to a shared life;
  • whether the parties’ relationship has been registered under a prescribed law of a State or Territory;
  • the parties’ care and support of children; and
  • the reputation and public aspects of the relationship.

Indeed, when you look at the circumstances that may give rise to a de facto relationship it is easy to see that they will more likely than not exist in a marriage. A combination of any of the above circumstances can be found in almost every intimate relationship, it is the constitution of the relationship that differences.

Arguably, there is no intrinsic difference between the two. Relationships are comprised of some overarching key factors, namely love and affection, commitment and support.

However, when you consider the definitions of the two types of relationships, there are some significant differences which point to one fundamental principal.  When two people get married they are entering into a formal contract known as the consortium vitae, otherwise known as the “marital relationship”.

When you break the process of getting married down, you can see a number of key elements that provide for a legally valid and binding marital relationship.  This elements include:

  1. a formal legal ceremony, conducted by a person who is ordained to conduct the ceremony and validate the marriage;
  2. a verbal commitment provided by both of the parties to each other (also known as “vows”);
  3. a document that is signed by both parties at the conclusion of the ceremony signifying the “contract”; and
  4. the registration of the marriage in the State or Territory in which the ceremony occurred.

Of course, all marriage ceremonies are different.  But they all include the above key elements which provide for the marriage to be valid and legally binding.  In other words, providing the above elements are present, the marital relationship becomes binding and effective on the day of the ceremony.

For all intents and purposes, the process of getting married (however hectic and stressful, and even expensive the planning may be) gives rise to a legally binding contract.

But, this contract is not like any normal contract.  This contract is founded on the basis that two parties are making a commitment to one another, for life, and to the exclusion of anyone else. Indeed, the exclusivity of a marriage is integral, particularly in circumstances where a de facto relationship may consist of a party who is married but separated.

The type of relationship you and your partner wish to have is a deeply personal decision and is founded on love, affection, commitment and support.  There is no requirement to get married.  Marriage can simply be identified as the ultimate step of unification between two people who are committed to one another and wish to be committed to one another for life.

If you need family law assistance or legal advice following separation, whether from a de facto relationship or following the breakdown of your marriage, then please contact one of expert family lawyers.