An Alternative to marriage and de facto relationships Registered Relationships

By: Barbara Smith AM, Dr Ed Koken and Dr Brett Davies

There are three types of couple relationships in Australia where two people are in a romantic or sexual relationship – de facto, registered or married. Typically, the two well-known relationships are:

• De Facto: this is an increasingly popular way to live as a couple on a genuine domestic basis as partners, without legal registration or formal marriage

• Married: where two people are legally united in marriage under Federal law.

The third type of couple relationship that is little-known, under-utilised and rarely discussed is:

• Registered: where partners who have been in a de facto relationship want their relationship to be official, marriage is not the only option – registration is the other alternative. Legal registration of a relationship is available in most Australian jurisdictions. A couple can apply to have their relationship registered where they meet specified obligations and/or restrictions under their applicable state or territory law. Once accepted, and after the specified waiting period, it is officially recorded in a Relationships Register maintained by the applicable Births, Deaths and Marriages Registry and a relationship certificate is issued.

What is a registered relationship?

Most state and territory Registries of Births, Deaths and Marriages have their own legislation that enables couples to legally register their relationship (where one or both of them is a resident) as an alternative to marriage, via a relationship register. Registration is available to adults who are in a relationship, regardless of their sex/gender. Western Australia and the Northern Territory do not have relationship legislation or a register.

Why register a relationship?

For couples who are in a committed long-term relationship and who want a legal relationship but who choose not to marry, registration provides a simple alternative, and the application can be made online. Their registered relationship certificate streamlines applications for government entitlements, services and records under Australian and applicable state or territory legislation. It also simplifies requirements at the time of death of a member of the registered couple, probate applications, and applications for letters of administration if there is no will. In addition, other service providers often accept registration of a relationship as proof of legitimacy of that relationship.

A relationship that is registered provides legal proof of a relationship, which can become valuable evidence for:

• tax purposes,

• superannuation death benefits,

• various government payments,

• visa applications for Australia where one of the members of the couple is not a citizen of Australia,

• providing next-of-kin status to funeral directors, and

• medical emergencies.

There is a dearth of statistics and that is unfortunate. For 2021 census purposes, if a person was divorced and had not remarried then, in relation to the ‘marital status’ question on the census form, they were instructed to select ‘Divorced’. In relation to this question, if the person was in a de facto relationship or a registered relationship that was not a registered marriage, they were instructed to select ‘Never married’. These instructions do not collect accurate and meaningful data about the ever-growing number of people who have chosen to be in long-term committed personal relationships without being legally married. The sample 2026 census form is similar to the 2021 census form with respect to this question and the instructions for answering it.

Each state and territory Registry of Births, Deaths and Marriages that has a relationship register used to provide counts of registered relationships to the Australian Bureau of Statistics. These counts provide a more holistic picture of legalised relationships. However, publication of such counts since the COVID pandemic appears to have been discontinued.

The Australian jurisdictions with relationship registers before the pandemic, showed a strong increase in the number of registered relationships as a proportion of all legal relationships (i.e., the sum of registered relationships plus marriages). The percentage rose from 9.2% in 2015 to 16.4% in 2019 as shown in the following table.

Registered relationships as a proportion of all legal relationships, selected states and territories

• 1. Data in this table reflects the number of registered relationships as a proportion of all legal relationships.
• 2. Jurisdictions with a relationship register include New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory. South Australia introduced its relationship register in August 2017 and therefore numbers for this state are only included in the 2018 and 2019 statistics.

Inconsistency between laws creates confusion

Registering a relationship is a useful option providing an alternative to marriage or an unregistered de facto relationship. However, the lack of consistency between State and Territory laws creates confusion.

Without registration, couples face the ‘burden of proof’ during a crisis. In Weldon v Levitt [2017] FCCA 3702, the Federal Circuit Court of Australia found that a 16-year relationship was not a de facto relationship because of the parties’ living arrangements. Registration avoids expensive disputes and provides immediate legal proof of a relationship.

With minor changes and consistent definitions Australia-wide, awareness would grow. This would make the third option a clear, smart choice for committed couples who seek legal proof of their relationship but who do not wish to marry.

Couples who want to consider having their relationship recognised in law but who choose not to marry can find out more about the Relationships Register maintained in their jurisdiction from the locally based Birth, Death and Marriages Registry if one or both lives in the states or territory listed in the table below.

Barbara Smith AM, Dr Ed Koken and Dr Brett Davies are the authors of the CCH Self Managed Superannuation Fund Guide and contribute to CCH iKnowConnect Estate Planning and Trust Law commentary and Superannuation commentary.