When a marriage or de-facto relationship ends, there is an understanding that usually some sort of division of property will occur. Family law gives effect to this understanding by allowing parties to seek a property order from a Judge for a just outcome. Family lawyers can help to guide a person through this process, to negotiate and ultimately potentially avoid Court, which can help to preserve a civil relationship between parties.
As non-conventional relationships become more common however, family lawyers and the Courts are having to become more nimble in regards to how they apply existing legislation to modern relationships.
Polyamory is the practice of having multiple serious or long-term romantic partners. It is distinct from having a paramour as there is knowledge and consent of all parties involved. Polyamorous couplings are becoming increasingly common, and whilst all members of these groups cannot get legally married, they still can very much be considered in a de-facto relationship. To illustrate the increasing trend, the ABS reports that roughly 2% of Australian families describe their number of parents as “other” rather than one or two. A further example shows that survey data from 2016 showed that 32% of gay male respondents in Melbourne said they were in open relationships. Whilst still taboo to many in society, polyamorous relationships seem poised to become favoured by a steadily increasing number of Australians in future.
This raises a difficult question; how does the law interact with such relationships when they contain more than two persons? These groups can share many characteristics of a marriage, with shared finances, children and living together under one roof.
In Australia polyamorous relationships that continue for two years or more do gain the protection of de-facto relationship status in Australia, this means that when such relationships end, parties are entitled to a property settlement much like any other couple. Whilst there is minimal case law on this subject now, it is only a matter of time until these issues make their way before the judiciary.
It is also not intuitively obvious how to go about such a process. The first thing to ascertain is the nature of the relationship. The first common model is the V model where one person is intimate with two other individuals, called the “V’’ model. Alternatively, all the parties could simultaneously be dating in a “triangle” model.
In both scenarios the calculation of the asset pool is a matter of increased complexity. For example, in the V model, to ascertain the value of the assets available, the contributions of the secondary partner must be considered. To not do so would be unconscionable as the first “spoke” partner to leave the relationship would be departing with more assets than they contributed, which would be a perverse incentive. The same can be true for a triangle relationship where a party splits off from one of the other two.
Even more confusing is the implications where a triangle relationship transitions to a V, as the middle partner has been subjected to the above scrutiny but then going forward will have to be careful about how they allocate their finances, as it will have implications going forward.
For these reasons other common law jurisdictions have had trouble moulding these types of relationships to their existing property division procedure. One notable example being New Zealand.
The recent High Court decision (Paul v Mead) has determined emphatically that the law that governs property settlements was never intended to be applicable to multiplicities. In this matter, a married couple were in a polyamorous relationship with a 3rd person who owned a house for 18 years. The initial wife left the triangle, and ultimately the Court decided she would not receive a share of the house. The Court rejected a formulation where all three people were each in two simultaneous relationships with each other, because it would lead to an unjust outcome wherein the first person to leave would take 50% of the total assets. The Court also rejected the idea that the language could be stretched to accommodate a three-person relationship.
The judgement did however state that this is a problem that needs to be addressed by statute and called for law to be reformed to cover such circumstances.
Ultimately the legal landscape for these types of relationships is very much unsettled and will be the site of legislative or judicial development in future. If you or anyone you know is in a long term polyamorous de-facto relationship, they can help to increase their certainty by signing and creating a Binding Financial Agreement with each of their partners. Nicholes Family Lawyers has numerous experienced Family Lawyers who can assist you in creating an agreement that accounts for your needs and will provide certainty if your relationship does end.