There are many Federal laws that refer to different types of relationships. Acts often have their own definitions of ‘spouse’, ‘de facto spouse’, ‘next of kin’, or ‘dependant’. State law generally has a single ‘de facto partner’ or ‘de facto relationship’ definition.
These definitions are used to determine rights and responsibilities in areas like Centrelink benefits, superannuation, inheritances, and so on.
Western Australian State Laws – “De Facto Partners”
For the purposes of Western Australian laws – such as the Family Court Act (WA), the Inheritance Act and the Equal Opportunity Act - the legal terms used to recognise couples in relationships are “de facto partner” and “de facto relationship”. These terms are defined by the Interpretation Act (WA) 1984. Wherever a written law of the State Government refers to a de facto relationship, it means a relationship (other than a legal marriage) between 2 people who live together in a marriage-like relationship. Where a written law refers to a “de facto partner” it means a person who lives or has lived in a de facto relationship with the other person.
The definition applies to all couples. It makes no difference what sex or gender the people are. This includes gay, lesbian, transgender and intersex people. The definition still applies if one or both of the people is married to someone else, or in another de facto relationship.
What is a marriage-like relationship?
In deciding whether a de facto relationship exists, the law sets out a number of factors –
- the length of the relationship;
- whether the people have resided together;
- the nature and extent of common residence;
- whether there is, or has been, a sexual relationship between them;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property (including property they own individually);
- the degree of mutual commitment by them to a shared life;
- whether they care for and support children;
- the reputation, and public aspects, of the relationship between them.
Whether or not a particular relationship is a “de facto relationship” will be judged on the particular circumstances of that relationship. In 2003, a review of Western Australian laws gave people in de facto relationships an equal standing with married people in most cases.
The rights and responsibilities you may have as a de facto partner are defined under the various pieces of State legislation – for example, a de facto partner may be able to challenge a will, or object to a post mortem as senior next of kin.
Family law and Relationship Break Ups
A mix of WA State law and federal law covers what happens when a relationship ends and if you cannot agree. This covers the care of children (see Children and Relationships section) and the split of property and assets (see the Property and Relationships section). You should always get legal advice if you have separated - or are thinking about separating - from your de facto partner. You may`have certain rights and obligations around the future care of children or property and assets.
Next of kin
Although next of kin is sometimes defined in legislation, it is a common law term that has traditionally meant the closest relative by blood or marriage.
The recent law reforms included changes to ‘senior next of kin’ and ‘senior available next of kin under
- the Coroners Act 1996 (WA) – which governs objections to post mortems,
- the Cremation Act – which covers objections to cremation; and
- the Human Tissue and Transplant Act 1982 (WA) – which governs consent to organ donation after death.
De facto partners of any sex are included in the definitions of next of kin in each Act. If a person has a spouse and a de facto partner, priority is usually given to the person with whom the deceased was living. A de facto partner will generally have priority over other family members.
For a discussion of next of kin status and medical treatment see the Health section of this booklet.
Different laws of the Commonwealth Government – such as the laws applying to Centrelink entitlements, taxation, most Superannuation legislation and immigration laws – have different definitions that apply to relationships.
Some laws refer to a “spouse” as being a legally married (heterosexual) spouse. If there is no definition in legislation, then the law assumes a “spouse” to be a legally married spouse. Same-sex couples cannot be legally married under the Marriage Act 1961 (Cth). Some laws include de facto partners, or people living in a marriage-like relationship. In most cases under federal law, this will mean only heterosexual relationships.
Immigration is covered by federal law. It is one of the few areas of federal law to recognise all relationships of any sex.
Since 1991 an Australian citizen, permanent resident or eligible New Zealand citizen has been able to use an interdependency visa to bring their same-sex partner into Australia. However, there is a limited quota for interdependency visas each year.
Your partner can apply for an interdependency visa from outside or within Australia. Generally they will first be granted a temporary visa for up to two years before their application for a permanent visa will be considered. If you have been in the relationship with your partner for five years or more at the time of application, there are provisions in some cases, to waive the two-year wait period before a permanent visa is granted. If the application is refused, get advice about your appeal rights. If you leave a relationship because of domestic violence, or if your partner dies after you enter Australia, you may be able to continue with your permanent visa application.
Immigration law is constantly changing. Always get legal advice. The basic criteria for an interdependency visa currently are:
- both people must be at least 18 at the time of the application;
- their relationship must be “genuine and continuing”;
- they must have a mutual commitment to a shared life to the exclusion of other interdependent relationships;
- they must live together, or not be living apart on a permanent basis;
- the relationship must have existed for at least 12 months (unless there are compelling and compassionate reasons why the visa should be granted).
All visa applicants must also meet standard health criteria and public interest criteria, such as being ‘of good character’ and not being a risk to national security.
How to prove your relationship
You don’t have to have lived together continuously for 12 months. The permanency and genuine nature of the relationship are more important than permanency of living arrangements.
The sorts of things that could be used as evidence are:
- photographs of you and your partner together – in different locations, and different seasons;
- letters or emails – to and from each other and from other people referring to your partner or your relationship;
- travel documents – showing you were in the same place at the same time;
- legal documents showing joint finances and commitment – e.g. lease, mortgage, property title, Will, power of attorney, joint bank account, utility bills in joint names;
- envelopes with both names at the same address and dated postmarks;
- at least four statutory declarations from other people who can confirm the nature of your relationship.
Health test waiver
Of particular relevance to people who are HIV positive is the health test. This test is to prevent people coming into Australia with what the government considers a costly medical condition that will over-use public resources. A positive HIV result will not necessarily result in the rejection of a visa application, but the result may be reported to a relevant Commonwealth or State health agency.
Sexuality is an accepted ground of refugee status if the person has a genuine and reasonable fear that they would be harmed in their country because of their sexuality. However, the fact that homosexuality is a crime punishable by imprisonment or other penalty in their country is not a sufficient ground for refugee status unless there is evidence that the law has been or will be enforced.