Alongside Marriage: De Facto Law in Australia

Under Australian Law two people of any gender can be declared a de facto couple if their relationship is deemed ‘committed’ and ‘marriage-like’ in relation to their financial, social, sexual, practical and emotional arrangements. This makes interpretation of de facto law a fascinating, condensed site of contemporary relational discourse. Officials are instructed to consider these factors, but exactly how they are to interpret them remains a matter of bureaucratic judgment. Accordingly, decision makers spell out, on a case-by-case basis, the legal boundaries of coupledom. In May 2014 the Administrative Appeals Tribunal overturned a decision made by Centrelink, the Australian Government agency responsible for delivering services and unemployment benefits to low or no income citizens, to deny career benefits to a woman (‘Ms. T’) based on the belief that her occasionally sexual relationship with her housemate counted as de facto. This paper explores the contradictory ideas about sex, monogamy and ‘commitment’ that shaped the decisions made about Ms. T’s case by both Centrelink and the Administrative Appeals Tribunal.

In a country where marriage remains, by definition, ‘between a man and a woman to the exclusion of all others’, the relative flexibility of de facto law, and the divided logics which guide its interpretation, offers a second, perhaps more complex site for the discussion of Australian relational politics. Legislative changes which took place in 2008-2009 (and 2010 in South Australia) grant couples who are designated de facto almost all of the practical rights and obligations reserved for marriage in some other nation states (including superannuation schemes, social security, veterans’ entitlements, immigration etc.). Furthermore, most states and territories have provisions for registering relationships with the state – a voluntary declaration of coupledom, which automatically grants those parties de facto status. In this legislative context the fight for ‘marriage equality’ appears to be a fight almost entirely about the symbolic prestige of marriage itself.

And yet as long as de facto judgments are, for better and for worse, based on the external appraisal of relationship characteristics rather than by a positive declaration made by the parties in question, and eligibility for voluntary relationship registration depends in some jurisdictions on monogamy, marriage and the privacy it confers offer a perhaps unexpected potential for subversive practice.

While unregistered couples risk being designated from the outside as de facto, or not, regardless of their wishes, the legal and administrative status of their relationships remain exposed at the level of intimate practice to the value judgment of agents of the state. Failure to live together, lack of monogamy, failure to be recognized as a couple by friends and families – all may factor into bureaucratic decisions about what counts as a ‘committed’ union capable of attracting state rights and protections (wanted or unwanted). While Australian marriage law requires that neither party be already married to someone else, in some states and territories (including my home state, New South Wales) eligibility for relationship registration requires neither party be part of another ‘couple’ at all. These qualitative restrictions on access to de facto status link administrative coupledom directly to social norms at the level of relationship practice. By contrast, couples who are able and willing to declare themselves before the state as married ‘to the exclusion of all others’ will remain married until they declare themselves otherwise, regardless of their domestic arrangements. Participation in the symbolic norms associated with marriage thus affords couples a perhaps counter-intuitive flexibility in matters of intimate practice.

This case study, and the questions it raises, demonstrates that any theorization of the possible impacts of same-sex marriage on queer and non-normative relationships must be localized. The consideration of the specific questions caused by de facto legislation and its interpretation in the case of Ms. T points to the fact that relationship politics in the Australian context cannot be neatly indexed in relation to the presence or absence of same-sex marriage. If discussions of the possible pleasures and dangers of marriage equality in Australia are to do justice to the particular circumstances faced by relationship non-conformists living there, we must address the complexities and contradictions that exist alongside marriage, not just after it.


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January 21, 2020, –