Annex D
AUSTRALIAN ARMED FORCES APPROACH TO RECOGNISING UNMARRIED PARTNERSHIPS
RECOGNITION OF DE FACTO MARRIAGES
INTRODUCTION
1. A member seeking Service recognition of a de facto marriage must prove that his or her partner, who is of the opposite sex, is a person who lives with the member as a spouse on a bona fide domestic basis although not legally married to the member. Where the de facto marriage is recognised by the appropriate Service authority, a member will be eligible for financial entitlements and conditions of service which apply to a legally married member.
AIM
2. The aim of this Instruction is to provide the ADF policy on the recognition of de facto marriages and the administrative procedures required for approval of an application for recognition.
LEGISLATIVE PROVISIONS
3. The policy contained in this Instruction is made with regard to the statutory requirements of the Sex Discrimination Act 1984.
DEFINITIONS
4. For the purposes of this Instruction the following definitions are to apply:
Approving Authority—The Commanding Officer/Officer Commanding of a serving member, or in the case of an applicant for ADF entry, an officer not below the rank of O-3 (CAPT (E)).
De facto spouse—in relation to a member, means a person of the opposite sex to the member, who lives with the member as the husband or wife of that member on a bona fide domestic basis, although not legally married to the member.
5. Not every relationship is one that satisfies ADF requirements for a recognisable de facto marriage. Some basic requirements are that a de facto spouse lives under the same roof as the member and that a significant amount of the member's and partner's possessions have been pooled for joint use as a common household. A member and a de facto spouse who are temporarily separated because of Service exigencies may be considered to live with each other, provided that the separation is not permanent or
6. indefinite and that their common household continues to be maintained. The situation where two members reside in Service provided living-in accommodation does not constitute a common household.
7. This Instruction provides guidance on the recognition of de facto marriages for members of the:
(a) Permanent Naval Force;
(b) Australian Regular Army;
(c) Regular Army Supplement;
(e) Reserve Forces who are rendering Full-Time Duty; and
(f) A person to whom an offer of appointment or enlistment has been made for service in one of the elements shown in sub-paragraphs 6a-e inclusive.
POLICY
8. To receive ADF recognition of a de facto marriage, an applicant is required to:
(a) make a statutory declaration (Annex A) to attest that a de facto relationship has been established and is supported by the existence of at least four items of documentary evidence, that the member lives with, as defined in the statutory declaration, his/her de facto spouse on a bona fide domestic basis and has established a common household with their de facto spouse; and
(b) provide at least two items, but not more than four items of documentary evidence, in support of the request for recognition.
Applicants are to be reminded by the person witnessing the statutory declaration that a person who wilfully makes a false statement in a statutory declaration may be imprisoned for a term of four years. In addition, the Department of Defence may require them to repay any entitlements that they receive as a result of incorrect information provided in relation to their request for recognition of a de facto marriage.
9. For the purposes of paragraph 7, the four items of documentary evidence must be selected from the following alternatives:
(a) If the applicant's partner has no independent income, evidence of regular financial support by the applicant (eg an allotment to a joint account).
(b) If the applicant's partner was, before commencing to live with the applicant, in receipt of a Commonwealth pension or benefit from which a de facto spouse is excluded by law (eg Widow's Pension, Supporting Parent's Benefit) evidence that the partner withdrew from that pension or benefit before the applicant requested recognition of a de facto marriage.
(c) Evidence of a valid will or life assurance policy, which nominates the applicant's partner as principal beneficiary, or co-beneficiary with children.
(d) If the applicant is still legally married to another person or was in a Service-recognised de facto marriage for which the applicant received conditions of service entitlements such as housing, evidence that the applicant has notified a change in marital status to 'separated' and cancelled those benefits.
(e) Legal documents to show that the applicant and the applicant's partner are purchasing some form of accommodation together, as joint owners or evidence of common ownership of some other form of valuable property, such as car, land, caravan or the like.
(f) Evidence of a joint savings plan or joint investments.
(g) Evidence that the applicant has enrolled their partner as a de facto spouse in a health insurance scheme, or arranged to pay the Medicare levy because of his or her changed marital status.
(h) Evidence that the applicant and their partner regularly operate a joint account as a couple for which they are co-signatories.
(i) Evidence of any financial arrangements for sums in excess of $1 000 which the applicant and their partner may have agreed between them (eg personal loan, payment of one or other's debts, guarantor of loan).
(j) Evidence that the applicant or their partner has given the other partner access to bank accounts for bill paying purposes or power of attorney during any separation.
(k) Evidence that the applicant and partner have lived together for at least 12 months before applying for de facto spouse marital status. Any Service-created separations must total less than six months.
(l) If the applicant and partner are in rented accommodation, evidence that both names appear on the lease.
The above items of documentary evidence, which are subject to periodic review, are as broadly based as possible and should reflect social expectations current at the time of the application for recognition.
10. Members should only have access to conditions of service entitlements for one spouse (or family situation) at a time. Both the member and his or her partner are therefore required to forgo any benefit received in respect of another relationship.
ADMINISTRATIVE PROCEDURES
11. An applicant seeking ADF recognition of a de facto marriage is to complete the Application for Recognition of De facto Marriage and the statutory declaration at Annex A. The Approving Authority is to request the applicant to produce at least two items, but not more than four items of documentary evidence referred to in the statutory declaration. The documentary evidence should be provided within two working days of the request being made and indicate that the evidence pre-dates the statutory declaration.
12. As part of the approval process, an applicant is required to declare, and the Approving Authority is to consider, the duration in which the applicant and their partner have lived together. It is not compulsory for an applicant to have lived with their partner for any fixed period of time before seeking recognition of a de facto marriage. However, the Approving Authority should carefully consider applications, which show less than six months cohabitation. Where doubt exists, the Approving Authority has discretion to require all four items selected as evidence, to be produced.
Proof of Marital Status
13. Proof of marital status lies with the member, not the Service. Unless a member's request for recognition of de facto marriage is made in accordance with the procedures and guidelines in this Instruction, it will not be recognised.
Date of Effect of Recognition of De Facto Marriage
14. For the purposes of receiving conditions of service benefits applicable to a legally married member, the effective date will normally be on and from the date on which the member signs the statutory declaration attesting that all of the qualifying conditions detailed in paragraph 7 of this Instruction are met. However, an earlier effective date can be approved where there is evidence that a bona fide relationship existed from that earlier date. In the case of a prospective applicant for service in the Permanent Naval Forces, the Australian Regular Army, the Regular Army Supplement or the Permanent Air Force, a statutory declaration in relation to recognition of a de facto marriage is to be completed and documentary evidence collected as soon as the applicant is recommended for entry. This will allow recruiting staff to arrange removals, housing and other entitlements in a manner similar to married applicants and be available from date of appointment or enlistment. The member's marital status categorisation is to be annotated on recruiting documentation as Member with Dependants.
Member or Partner Under 18 Years of Age
15. Where either partner is under 18 years of age at the time of application for recognition, the de facto marriage is not to be recognised unless the person under 18 years of age has gained parent or guardian consent in writing to the cohabitation.
Relationships Formed Overseas or in Australia with Foreign Nationals
16. The items of documentary evidence to support recognition of de facto marriages are to apply in respect of relationships formed overseas or in Australia with foreign nationals. In addition, an application for recognition of a de facto marriage with a foreign national will not normally be approved unless:
(a) the member obtains the necessary approval for the partner to reside permanently in Australia; or
(b) the partner has been granted a visa that recognises the relationship.
Processing of Requests for Recognition of De Facto Marriages where Both Partners are ADF Members
17. Requests for recognition of de facto marriages, where both partners are members of the ADF are to be processed by the Service and unit of the member who wishes to lodge the request.
Change in Circumstances
18. A member is to advise his or her Commanding Officer in writing of any changes or impending changes that will, or could affect, the continued recognition of their de facto marriage. A de facto marriage will be taken to have ceased when the member no longer meets the definition of a de facto spouse, that is, the member marries or ceases to live with their de facto spouse on a bona fide domestic basis in a common household. Furthermore, the Courts have determined that if partners separate because the commitment to their de facto marriage is in doubt, even if the purpose of the separation is merely to enable one or both to decide whether the relationship should continue, then a de facto marriage is considered not to exist at that time.
19. If a recognised de facto marriage has been deemed to have ceased, for any period of time, and the couple reunites and wish to have their de facto marriage re-recognised, the appropriate partner is to submit a new statutory declaration and produce current documentary evidence as required.
20. A Commanding Officer of a serving member who has reasonable grounds to believe that a member's circumstances may no longer be such as to justify continued recognition of a de facto relationship, may request the member to re-validate their status by the submission of a statutory declaration in accordance with Annex A.
Special Cases
21. Where a request for recognition of a de facto marriage fails to meet the number of items of documentary evidence required, the member may elect to have the request forwarded to the Director Entitlements (DE) in the Defence Personnel Executive. The member is to provide a supporting statement explaining why they consider that they are in a de facto marriage.
22. This Instruction relates only to recognition of de facto marriage in the ADF. Nothing contained in this Instruction confers any special right of defacto recognition under State or Territory legislation or access to any benefits under that legislation.
ADDENDUM:
A new instruction on the recognition of de facto marriages was promulgated on 20 March 2002 and replaces some of the above policy. The new policy aims to provide a balance between simplifying the approval process and ensuring that only bona fide relationships are recognised. A much simpler set of eligibility criteria will streamline the approval process. It also allows new entrants, who are in de facto relationships at the time of their appointment/enlistment to have those relationships recognised on their date on entry and therefore immediately receive the same conditions of service entitlements as a married member.
To receive Australian Defence Force recognition of a de facto marriage, an applicant is required to:
a. make a statutory declaration that a de facto relationship has been established and that at least four items of documentary evidence exist (from a list of 12 items) that show that the member lives with his/her de facto spouse on a bona fide basis and has established a common household, and;
b. provide at least two items, but no more than four items of documentary evidence, as requested by the approving authority, in support of the request for recognition.
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