The Legal Definition of a Spouse: Married vs De Facto Partners in Australia

When people hear the word “spouse”, they often think exclusively of marriage. However, under Australian family law, the legal definition of a spouse extends beyond a wedding certificate. Whether you’re married or in a de facto relationship, your rights and obligations can be remarkably similar — particularly when it comes to property settlement, financial support and parenting matters.

Understanding where you stand legally is essential. And if you’re unsure about your entitlements or responsibilities, speaking with a qualified spousal maintenance lawyer early on can make a significant difference.

Let’s unpack how Australian law defines a spouse (and what that means in practice).

Married Spouses: The Traditional Definition

Under the Family Law Act 1975 (Cth), a married spouse is someone legally married under Australian law (or a recognised overseas marriage). Marriage creates a clear legal status. If a married couple separates, they may seek a property settlement, spousal maintenance, parenting orders, or a divorce.

Importantly, divorce itself is separate from financial and parenting matters. You don’t need to finalise property settlement or maintenance before applying for divorce, but strict time limits apply. Married couples generally have 12 months from the date a divorce becomes final to commence property or spousal maintenance proceedings.

Because marriage is formally registered, there is usually no dispute about whether the relationship existed. The legal focus instead shifts to financial contributions, future needs, and arrangements for any children.

De Facto Partners: Equal Recognition Under the Law

Many Australians are surprised to learn that de facto partners can have almost identical rights to married couples under family law. A de facto relationship exists where two people (including same-sex couples) are not legally married to each other, are not related by family, and live together on a genuine domestic basis/

There is no single factor that automatically determines whether a relationship is de facto – courts consider a range of circumstances, including:

• The length of the relationship
• Whether you lived together
• Financial interdependence
• Joint ownership of property
• The presence of a sexual relationship
• The care and support of children
• The public nature of the relationship

Generally, a de facto relationship must have lasted at least two years before a party can seek property settlement or maintenance. That being said though, there are exceptions — mainly if the couple has a child together, if the relationship was registered, or if one party made substantial contributions.

Property Settlement: Married vs De Facto

From a legal standpoint, property settlement principles are largely the same for married and de facto couples. The Court follows a structured approach:

1. Identify and value the asset pool
2. Assess financial and non-financial contributions
3. Consider future needs (income disparity, health, caregiving responsibilities)
4. Determine whether the outcome is just and equitable

The key difference is procedural. For de facto couples, you must apply within two years of separation. For married couples, it’s within 12 months of divorce. Miss those deadlines and you may require special permission from the Court… which is not easily granted.

Who Qualifies for Spousal Maintenance?

Spousal maintenance refers to financial support paid by one partner to another after separation. Both married and de facto partners may be eligible if:

• One party cannot adequately support themselves due to factors such as caring for children, age, illness or limited earning capacity; and
• The other party has the financial capacity to provide support.

Maintenance is not automatic; it depends on need and capacity. In some cases, it may be short-term (for example, while one partner retrains or re-enters the workforce). In others, it may be ongoing. The law does not favour marriage over de facto relationships in determining maintenance – what matters is the financial reality of the relationship and the circumstances following separation.

Parenting Matters: No Distinction at All

When it comes to children, the law makes no distinction between married and de facto parents. Parenting arrangements are determined according to the best interests of the child, not the marital status of the parents. Both parents have parental responsibility unless the Court orders otherwise (this applies equally to married couples, de facto couples, and even parents who were never in a formal relationship).

Here are the Key Differences at a Glance

While the rights are broadly similar, there are practical differences:

Marriage

• Automatically recognised legal status
• 12-month limitation period after divorce for property/maintenance claims

De Facto Relationship

• Must prove existence of relationship if disputed
• Generally requires at least two years together (with exceptions)
• Two-year limitation period from date of separation

These differences can become significant if one party disputes the relationship or if deadlines are approaching.

Why Legal Clarity Matters

Relationship breakdowns are rarely straightforward. Financial arrangements, shared assets, superannuation, business interests, and parenting responsibilities can create complex legal questions — regardless of whether you were married.

The assumption that de facto partners “have no rights” is outdated; equally, being married does not guarantee a specific financial outcome. What ultimately matters is the nature of the relationship, the contributions made by each party, and the future needs of both people.

In modern Australia, the legal definition of a spouse extends well beyond marriage

De facto partners enjoy significant recognition and protection under family law, provided certain criteria are met. If you are separating — or considering separation — understanding your legal status early can protect your financial future and reduce uncertainty. Seeking tailored legal advice ensures you are aware of time limits, entitlements, and strategic options.

Whether married or de facto, clarity around your rights is the first step toward a fair and informed outcome.