In recent years, there has been a growing acceptance and discourse surrounding diverse forms of relationships, including polyamory. Polyamory, which involves engaging in multiple consensual romantic and sexual relationships, reflects a broader shift towards the normalisation of various relationship structures within our community.

As family lawyers, we have observed an increasing demand for guidance on how non-monogamous relationships are treated under Australian family law. Clients often inquire about the eligibility of individuals in polyamorous relationships to apply for property settlements, the procedures for these proceedings when multiple people are involved, and the financial protections available for those in polyamorous relationships.

Polyamory vs polygamy

Drawing a clear distinction between polyamory and polygamy is crucial. While polyamory, as previously defined, is legally permissible in Australia, polygamy, characterised by an individual being married to multiple partners, is not. Hence, while there is a legal prohibition on multiple marriages, no such restriction exists for de facto relationships.

Who is eligible for a property settlement?

In Australia, individuals who are married or in a de facto relationship have standing to apply to the Court for a property settlement. A couple, whether monogamous or polyamorous, will satisfy the requirements for a de facto relationship where they can establish that they are neither married nor related by blood but have been living together on a genuine domestic basis.

In determining whether this threshold is met, the court will consider various factors, including but not limited to:

• The length of the relationship;
• The nature and extent of shared living arrangements;
• The degree of financial independence;
• The extent of mutual dedication to a shared life; and
• The reputation and public aspects of their relationship.

What does the court say about polyamorous relationships?

The landmark case of Jones & Michetti [2022] FedCFamC1F 771 illustrates the Court’s approach to determining whether a polyamorous relationship fell within the definition of a de facto relationship and subsequently was subject to property proceedings.

The applicant, Ms. Jones, claimed she was simultaneously in two de facto relationships: one with a long-term partner and the other with the respondent, Mr. Michetti. Despite a 16-year relationship characterised by sexual intimacy and financial generosity, the Court found that their relationship did not meet the threshold for a de facto relationship. It was concluded that the relationship lacked key characteristics of a de facto relationship, such as financial dependence, shared residence, and public reputation as a couple. They were found not to have lived together on a genuine domestic basis. This case exemplifies the importance for polyamorous couples to clearly define the nature of their relationship, as ambiguity can result in avoidable, protracted, and expensive legal disputes.

What steps can people in polyamorous relationships take to protect themselves financially?

The best way for de facto and married couples to protect themselves and their assets is through a Binding Financial Agreement (BFA), also known as a prenuptial agreement. A BFA is a written contract that outlines how a couple’s assets will be divided in the event of a relationship breakdown. It can be entered into before, during, or after a de facto relationship or marriage. When properly executed, a BFA ousts the jurisdiction of the Court, preventing parties from applying to the Federal Circuit and Family Court of Australia for a property settlement after a relationship breakdown. This provides couples with a means to safeguard any assets acquired before the relationship in the event it ends.

Ultimately, in assessing whether a polyamorous relationship satisfies the criteria of a de facto relationship and thus falls under property proceedings, the court will examine the unique circumstances of the relationship. Therefore, it is crucial to take appropriate measures to safeguard your financial position in any relationship, regardless of its nature.

You can learn more about the legal recognition of polyamorous relationships in Australia in our article featured in the Law Institute of Victoria Journal. Read the full article You can read this article and the February edition of the Victoria Law Institute Journal here.

If you are seeking more information as to the legal status of your relationship or if you need assistance with a property settlement in a family law matter, please contact our office on 9670 4122 or reception@nicholeslaw.com.au to arrange an initial consultation.