Relationships Register Act 2010

The primary cohort is any two adults who are “in a relationship as a couple” and wish to obtain formal recognition. At least one must reside in New South Wales at the time of application (s 5(2)). The Act is deliberately gender-neutral; the phrase “regardless of their sex” in ss 3 and 5(1) was groundbreaking in 2010.

The legislation directly affects couples who are not married and who are not already registered under this Act or a corresponding law (s 5(3)). It therefore captures same-sex couples (until the 2017 federal changes), opposite-sex couples who choose not to marry, and couples in culturally specific relationships that may not fit traditional marriage models. Because registration can be revoked on marriage (s 10(b)), the register is most relevant to couples who wish to remain unmarried while still obtaining legal recognition.

Indirectly, the Act affects a far wider group. Once a relationship is registered, third parties—banks, superannuation trustees, employers, hospitals, landlords, and government agencies—must treat the couple as having the status of a registered relationship when applying statutes that reference “de facto partner”, “spouse” or “family member”. For example, the Succession Act 2006 (NSW) and the Property (Relationships) Act 1984 (NSW) both pick up registered relationships.

The Act also touches family members who might otherwise have expected to inherit or make decisions. The strict prohibition on registration where the parties are “related by family” (s 5(4)–(6))—including adoptive relationships and parentage orders under the Surrogacy Act 2010—protects blood and adoptive relatives from inadvertently creating legal spousal rights.

Public officials are affected through the Registrar’s expanded functions. The Registrar of Births, Deaths and Marriages must maintain the register, assess applications, manage cooling-off periods, handle revocation applications, and potentially provide celebratory services. The Civil and Administrative Tribunal is the review body for aggrieved applicants (s 18). Privacy officers must comply with the strict non-disclosure rule in s 19, which carries a maximum penalty of 50 penalty units or 12 months imprisonment.

Finally, the legislation affects couples who registered before the 2017 same-sex marriage reforms. Section 10A operated automatically to revoke those registrations on the recognition day, sometimes without the parties’ immediate knowledge. This created a cohort of couples who believed they held registered status only to discover it had been extinguished by federal law.

The Act creates few ongoing duties but several important rights. The central right is the right to apply for registration (s 5(1)) and, once registered, the right to have that status recognised across NSW law. Registered partners gain presumptive rights under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Victims Rights and Support Act 2013 (NSW), the Guardianship Act 1987 (NSW), and numerous others.

Applicants have the right to a 28-day cooling-off period during which they may withdraw (s 8(2)). Similarly, parties to a registered relationship have the right to apply for revocation after giving notice (s 11) and benefit from a 90-day cooling-off period (s 12). The Registrar’s power to dispense with notice under s 11(3) is balanced by the requirement that such dispensation only occur when it is not reasonably practicable to give notice.

The Registrar has duties to register when statutory criteria are satisfied (s 9), to note revocations and void registrations (s 15), and to maintain confidentiality (s 19). The Registrar may require further information (s 7) and may charge fees for celebratory services (s 16A).

A significant right is the entitlement to administrative review. Section 18 provides that any person may apply to NCAT for review of any decision of the Registrar made under the Act. This includes refusals to register, refusals to revoke, decisions about dispensation of notice, and arguably decisions about the form of celebratory services.

The information disclosure offence in s 19 is both a duty and a right: officials must not disclose information obtained in the administration of the Act except in narrowly defined circumstances (consent, administration of the Act, legal proceedings, Ombudsman requirements, or other lawful excuse). This creates a statutory privacy right for registered couples.

The Act contains relatively few offences. The most serious is the prohibition on unauthorised disclosure of information (s 19), which carries a maximum penalty of 50 penalty units or 12 months imprisonment, or both. This is a summary offence triable before the Local Court (s 20).

Regulations made under s 17(3) may create offences punishable by up to 5 penalty units. These are typically minor administrative breaches such as failure to notify interstate authorities or misuse of prescribed forms.

There are no civil penalty provisions. Enforcement of eligibility requirements occurs at the registration gate rather than through post-registration prosecution. If a registration is later found to have been obtained improperly, the remedy is a court order declaring it void under s 14 rather than a criminal prosecution.

The Registrar’s decisions are enforceable through the registration and notation powers. Refusal to register or revoke can be challenged in NCAT. The Act does not contain express investigation powers; the Registrar relies on the statutory declarations and the power to request further information under s 7. False statutory declarations are prosecutable under the Oaths Act 1900 (NSW) rather than this Act.

The Relationships Register Act 2010 is deliberately integrated with other legislation. The Register itself is the same register kept under the Births, Deaths and Marriages Registration Act 1995 (s 4(1)). Part 8 of that Act governs how relationships are actually recorded, corrected, and how certificates are issued (s 9 note).

The definition of “corresponding law” (s 4(1)) allows regulations to recognise registration schemes in other Australian jurisdictions, and s 16 permits declaration of “interstate registered relationships”. This creates a national web of mutual recognition.

The interaction with the Surrogacy Act 2010 is explicit in s 5(6), which treats parentage orders in the same way as adoptions for the purpose of the prohibited “related by family” rule.

The most significant interaction is with federal law. Prior to 2017, the Act filled a gap left by the federal prohibition on same-sex marriage. After the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), s 10A was inserted to ensure that a registered relationship could not coexist with a recognised same-sex marriage. The automatic revocation on the “recognition day” prevented dual status.

The Act also interacts with the Property (Relationships) Act 1984 (NSW), the Succession Act 2006 (NSW), the Superannuation Industry (Supervision) Act 1993 (Cth) (via the definition of “spouse”), and numerous Commonwealth social security and veterans’ entitlement statutes that treat registered relationships as equivalent to marriages for certain purposes.

Section 18 cross-references the Administrative Decisions Review Act 1997, making NCAT the forum for merits review. The Interpretation Act 1987 applies to undefined terms and to the construction of the Act generally (s 4(1) note).

The most significant amendment was the insertion of s 10A by the Miscellaneous Acts Amendment (Marriages) Act 2018 (NSW) (No 28 of 2018). This was a direct legislative response to the Commonwealth’s recognition of same-sex marriages from 9 December 2017. The NSW Parliament wished to avoid the legally incoherent situation of a couple being both married under federal law and registered under state law. Section 10A therefore operates retrospectively on the recognition day for any pre-existing registered relationship involving a recognised same-sex marriage.

Section 16A was inserted by the Statute Law (Miscellaneous Provisions) Act 2018 (No 87 of 2018) to permit the Registrar to offer celebratory services and to charge for them. This reflected a policy desire to make the registration process more ceremonial and emotionally significant, particularly for couples who could not or did not wish to marry.

The substitution of s 18 in 2013 (by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013) replaced the former Administrative Decisions Tribunal with NCAT, a machinery update rather than a policy change.

Schedule 2 and 3, which originally contained amendments to other Acts, were repealed by the Statute Law (Miscellaneous Provisions) Act (No 2) 2015, reflecting the completion of the initial integration exercise.

These changes demonstrate the Act’s responsiveness to federal developments and to community demand for symbolic as well as legal recognition.

Because the Act is largely administrative, there have been few reported court challenges. Most disputes are resolved in NCAT on administrative review. However, several issues have generated controversy.

The automatic revocation effected by s 10A caused confusion and distress for some couples who had registered in good faith before 2017 and discovered years later that their registration had been extinguished by operation of federal law. Some argued that they should have received individual notice.

The breadth of the “related by family” prohibition in s 5(4)–(6), especially its application to surrogacy parentage orders even after those orders are discharged, has been criticised by some family law practitioners as overly rigid. There is no discretion to register where parties are related, even if the relationship is distant or the adoption occurred decades earlier.

The mental capacity test in s 14(1)(c)—“mentally incapable of understanding the nature and effect of the registration”—has not been the subject of detailed judicial consideration in reported cases, but it raises similar issues to capacity in will-making and marriage. Courts are likely to apply the test in line with established principles from cases such as Gibbons v Wright (1954) 91 CLR 423, although that authority is not mentioned in the Act itself.

Controversy also surrounded the original policy decision in 2010 to create a state-based register rather than wait for federal reform. Critics from both sides—those who wanted full marriage equality immediately and those who saw the register as undermining traditional marriage—engaged in vigorous parliamentary debate. The 2010 second reading speech emphasised equality and simplicity; opponents warned of incremental erosion of marriage as an institution.

No High Court challenge to the constitutional validity of the Act has occurred. Its operation is clearly supported by the states’ residual legislative power over registration of relationships and civil status.

Most practitioners miss that registration is not the same as being in a de facto relationship. A couple can be in a de facto relationship under s 4AA of the Family Law Act 1975 (Cth) without registration, and conversely can be registered without satisfying every element of the de facto test. Courts have occasionally had to explain that registration creates an irrebuttable status for the purposes of many statutes, whereas de facto status remains a question of fact and degree.

The interaction between s 10 and s 10A is another trap. Marriage of one party automatically revokes registration, but if the marriage is a same-sex marriage that only became recognised in 2017, s 10A may have already revoked the registration on the recognition day. Practitioners should check the exact chronology before advising on inheritance or superannuation death benefits.

The 90-day revocation cooling-off period is significantly longer than the 28-day registration period. This is deliberate—to discourage impulsive break-ups—but it means that a couple who have decided to separate cannot obtain immediate formal termination. During the cooling-off period the registered status continues, with all the legal consequences that entails.

Section 5(6) contains a little-known extension to surrogacy parentage orders. Even if a parentage order has been discharged, the prohibition on registration between the parties still applies. This can catch parties who entered surrogacy arrangements years earlier and later wish to register a new relationship with each other—an unusual but not impossible scenario.

The Registrar’s power to dispense with service under s 11(3) is broader than many realise. “Not reasonably practicable” is not limited to cases where the other party cannot be found; it can include situations where the applicant fears violence or where the other party is overseas and cannot be contacted within a reasonable time. However, the Registrar’s decision to dispense is itself reviewable in NCAT.

Finally, many lawyers assume that a registered relationship automatically carries the same superannuation death benefit rights as a marriage. While most funds treat registered relationships as “spouses”, the governing rules of the particular fund must be checked. Some older trust deeds still use narrower definitions that pre-date the 2010 Act.

Compliance for couples is largely a matter of honest completion of the statutory declaration in the approved form. Each applicant must personally confirm they are not married, not in another registered relationship, not in a couple relationship with anyone else, and not related by family within the extended meaning of s 5(4)–(6). Any deliberate falsehood exposes the declarant to prosecution under the Oaths Act 1900 for false swearing.

For legal practitioners, the key compliance steps are:

1. Conduct a thorough conflicts check to ensure neither party is married, in another registered relationship (including interstate), or related within the prohibited degrees. This requires more than a marriage certificate search; a check of the NSW Register and, where possible, registers in other jurisdictions is prudent.

2. Advise clients of the 28-day cooling-off period and the effect of registration on existing wills, binding death benefit nominations, and enduring guardianships. Registration can trigger automatic revocation or alteration of some instruments.

3. When advising on revocation, ensure that notice is given in the approved manner or that an application for dispensation is properly supported by evidence of impracticability. Failure to serve correctly can lead to NCAT setting aside the revocation.

4. For corporate and government clients (superannuation funds, insurers, hospitals), maintain systems that treat a certificate of registered relationship as conclusive evidence of status for the purposes of the statutes that pick up the register. Most statutes now contain provisions that treat a registered relationship as equivalent to a marriage or de facto relationship.

5. When drafting financial agreements or cohabitation agreements, consider whether registration is intended and include clauses that deal with the consequences of future registration or revocation.

6. For the Registrar’s office, compliance requires meticulous record-keeping, timely notation of revocations under s 15, and adherence to the strict confidentiality rules in s 19. Any disclosure outside the statutory exceptions risks criminal liability.

In practice, the simplest compliance strategy for most couples is to treat the registration process with the same seriousness as marriage. Obtain independent legal advice, ensure all statutory declarations are truthful, and review estate planning documents both before and after registration. For professionals, the Act is not especially complex, but its cross-references to other legislation mean that a checklist approach referencing the exact text of s 5(3), s 6, s 10, s 10A and s 14 is the safest way to avoid costly errors.