I had a client recently who had separated from her de facto husband nearly 2 years ago, but they had not yet been able to separate their finances. This caused untold stress because in Australian law, de facto couples must divide their assets within two years of separation.
The aim of this jurisdictional time frame is to give de facto couples a similar time to divide their assets as legally married couples who must finalise the financial separation within one year of divorcing (which can only happen after being separated for a year). The inequity comes from the option for legally married couples to choose when, if ever, they divorce giving them potentially years to sort out their financial separation.
So, what is marriage? Legally, to be considered married, you need to apply for a marriage licence and to sign a contract with some minimal vows that need to be exchanged in front of at least two witnesses. There may be rules around who can marry, for example there may be an age barrier. Another rule is that you can’t be legally married to someone else at the same time, a motivator for divorce.
Otherwise, there is not much difference between those who are legally committed and those who are only committed emotionally, financially and genealogically. That is, they share a home, a child (or several) and/or a history of good and bad times. Once we have these commitments, particularly the emotional commitment, the piece of paper and the legal recognition has a small, albeit symbolically significant, impact.
To me, the importance of marriage is not in whether it is legal or not. It is the maintenance and growth of this commitment to preserve the sanctity of the relationship. Particularly if there are children involved. And, when the marriage is no longer viable for one half of this contract, to allow enough time for healing before having to make life altering financial decisions without the pressure of a jurisdictional time limit.
I wonder: is it time to change these jurisdictional time frames?