What are the benefits of marriage in Australia? Married couples may have different rights under the law compared to de facto couples (or unmarried couples). However, in Australia, de facto couples and married people (including couples in a same-sex marriage) have almost similar benefits. This may include:
- Financial benefits
- Health insurance plan or plans
- Social security benefits
- Survivor benefits
- Tax benefits such as tax deductions and lower corporate, individual, and estate taxes
This article discusses the benefits of marriage in Australia.
The Legal Benefits of Marriage
It is important to understand the legal effects of marriage, as much as knowing the benefits of marriage in Australia. Marriage in Australia contains a number of legal consequences for the parties involved, and include the following:
- Using a spouse’s surname. There is no law that a person’s surname must be changed upon marriage. A person who marries can choose not to change their name to their spouse’s surname. However, should a person choose to use their spouse’s surname, they should update their details on all forms of identification and notify Australian government departments of the change.
- Recognition as the next of kin. Married spouses are automatically recognised as each other’s next of kin. This affords a spouse the right to make emergency medical decisions, inherit life insurance and superannuation benefits, and benefit from an intestate estate.
- Automatic revocation of a Will. Marriage automatically revokes a Will, unless the Will clearly states that marriage was planned. This automatic revocation occurs because the law assumes that a spouse takes precedence over all other family members and dependents. To learn more about Wills, click here.
- Changes in tax benefits and liabilities. The amount of tax a person pays changes once they are married; hence, one must notify the Taxation Office concerned. Some couples may find that they owe more in income taxes when filing jointly than they would have as single filers. However, this is more than offset by other tax-related factors that make marriage a winning proposition in terms of finances. A marriage between two people with widely varying incomes works out particularly well for both partners. The partner who earns a majority of the income rarely incurs a marriage penalty. They almost always receive a marriage bonus because joint filing moves the higher earner’s earnings into a lower tax bracket.
Benefits of Marriage in Australia versus De Facto Relationships
There are various benefits of marriage in Australia. For instance, it is not required of a married couple to prove their relationship. The marriage certificate already serves as evidence of their partnership, even if they live apart and rarely see each other. However, in de facto relationships, the de facto couple still needs to prove their relationship by providing evidence that they live together and continue to be committed to each other.
When is a de facto relationship considered to have commenced?
Under Family Law, generally after living together for two years. However, there may be exceptions if you have “registered” your relationship, you have a child together, or you have made significant financial or non-financial contributions to the relationship.
Under Immigration Law, as a general rule, you must be in a de facto relationship for at least 12 months immediately before applying for a visa.
Differences in Legal Rights
The law regarding de facto couples may be different in each state, especially regarding the registration of the de facto relationship. You also have to “prove” the de facto relationship to avail certain rights under the law. But for marriage, a marriage certificate automatically proves you are in a relationship and have rights as a married couple.
Property Settlement and Spousal Maintenance
Married couples must make an application for property settlement or spousal maintenance within 12 months of obtaining a divorce. However, if a divorce is not applied for or granted, there is no set time limit to apply. On the other hand, de facto couples must make an application to the Court for property settlement within two years of separating.
Wills and Estate Planning
As mentioned earlier, marriage automatically revokes a Will, unless the Will clearly shows that marriage was planned. In de facto relationships, if separation occurred and one spouse dies before making a new Will, the Court determines how the estate of the deceased will be distributed.
In addition, if a de facto partner dies intestate (without leaving a will), the surviving spouse needs to prove a de facto relationship existed. However, one of the benefits of marriage in Australia is that this requirement is not necessary in a marriage.
Proof of the Relationship
In most legal battles, there is always a need to prove the relationship for de facto couples (including same-sex couples). Parties may find it difficult to prove that their de facto relationship existed. Evidence might include things such as:
- Living arrangements in the home
- How household expenses and chores are shared
- How finances are managed and maintained
- Commitment to a shared life
- How the public perceives their relationship, arrangements for any children, and details about their sexual relationship.
Such is not the case for married couples. In a marriage, there is no “burden of proof” required. Spouses are married from the date their marriage certificate says they are. The marriage certificate is sufficient enough to prove the marriage exists.
When Do the Differences Matter?
While marriage and de facto relationships have similarities in that they both involve couples dealing with debt responsibilities, division of assets, and children, the differences matter when legal battles and other life circumstances occur. This is where the “burden of proof” comes in for de facto couples.
For instance, a partner in a de facto relationship might need to prove their relationship:
- if their partner is very ill, in order to make decisions about their care and treatment,
- if their partner died, in order to be listed as their spouse on a death certificate or to be involved in funeral planning (being listed on a death certificate is critically important when it comes to claiming superannuation payouts and other issues), or
- if their partner has died without leaving a Will or died intestate.
Unfortunately, the legal status of the relationship mostly matters in times of grief or emotional stress. In the case of de facto relationships, the de facto couple’s status often gets challenged by one partner’s family members. But for marriage, the relationship is undeniable. The distressed or grieving spouse does not face the burden of proving a relationship exists.
Additionally, unmarried partners or de facto partners often experience difficulties obtaining residency and/or working rights overseas. Visa requirements in Australia often require further evidence of the existence of a de facto relationship. Married couples rarely experience these kinds of problems.
Seeking Legal Advice from Expert Family Lawyers
There are various benefits of marriage in Australia as opposed to de facto relationships. You may be in a situation where you want to marry your de facto partner to obtain the benefits of marriage in Australia, but there are legal obstacles hindering you and your de facto partner. Or perhaps you are in a position where you need to prove your de facto relationship.
JB Solicitors has a leading team of expert family lawyers that can help with your specific case. We offer legal advice tailored to your needs and legal representation should the matter escalate to the Courts.
Do you have any more queries on the benefits of marriage in Australia? Contact us today.
