Polyamorous Relationships: Family Law Australia

What is Polyamory?

Polyamory is the practice of being involved in a relationship with more than one partner at the same time, with the informed consent of all partners.

A polyamorous relationship may involve a married couple with a de facto partner or partners or multiple de facto partners.

Are Polyamorous Relationships Legal?

It is a criminal offense in Australia to marry someone if you are already married to someone else.

However, it is perfectly legal to be married to someone and be in a de facto relationship with someone else, at the same time.

What is a De Facto Relationship?

Section 4AA of the Family Law Act 1975 (Cth) provides that a person is in a de facto relationship with another person if:

• The persons are not legally married to each other; and
• The persons are not related by family; and
• Having regard to the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The circumstances of the relationship may include:

• The duration of the relationship;
• The nature and extent of their common residence;
• Whether a sexual relationship exists;
• The degree of financial dependence or interdependence;
• The ownership, use and acquisition of their property;
• Whether the relationship is or was registered under a prescribed state or territory law;
• The care and support of children;
• The reputation and public aspects of the relationship.

A de facto relationship can still be recognised if one of the people in the relationship is legally married to another or is in another de facto relationship.

What Legal Rights do I have if a Polyamorous Relationship Breaks Down?

Whether a polyamorous relationship involves a married couple with a de facto partner or partners, or multiple de facto partners, all parties to the polyamorous relationship may have a right to apply for spousal maintenance and/or a property settlement under the provisions of the Family Law Act 1975 (Cth).

In Australia, you can apply for spousal maintenance and/or a property settlement under the Family Law Act 1975 (Cth) if you are a party to a marriage or a de facto relationship that has broken down.

If you have been in a de facto relationship, conditions must be met before an application for property settlement can be made. (Family Law Act 1975 (Cth) See Sections 90SB, 90SD and/or 90SK)

One of the following conditions must exist:

• The period of the relationship or the total of the periods is at least 2 years; or
• There is a child of the relationship; or
• One of the partners has made substantial financial or non-financial contributions to their property or as homemaker or parent and serious injustice would result to that partner if an order was not made (ie. The 2-year period can be waived)
• The de facto relationship has been registered in a State or Territory under laws applicate for registration of relationships.

If you are thinking of entering a polyamorous relationship or are currently in a polyamorous relationship, or a party to a polyamorous relationship that has broken down, we recommend you seek legal advice as soon as possible in order to know your legal rights.