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Sharing the love; is three a crowd? Family Law issues if you have more than one partner – Polygamy vs Polyamory

News

Valentine’s Day is here! In what is traditionally a festival of love for couples to celebrate, 2023 has seen a change to include the throuple! Whether it be a trend or the next big movement, we are seeing more campaigns targeting polyamorous partners this year and perhaps a more palatable description than the threesome or menage a trois. But love-struck mortals beware, there’s more than meets the eye when it comes to polyamory, explains Attwood Marshall Lawyers Family Law Associate Emily Edmonds.   

Introduction

QT Hotel recently launched their ‘throuple’ campaign to declare that love should not be limited to two people. To reward the polyamorous people celebrating love this Valentine’s Day, destinations like QT were offering three-people dinner reservations across all their signature restaurants, with complimentary oysters and mini martinis to top it off.

The hotel chain also offered one lucky throuple the chance to win a night in residence with the promise of extra pillows, robes, and amorous amenities.

Although the throuple scenario may be becoming more mainstream as we celebrate love this Valentine’s Day, it is important to understand what may happen if the love is lost and each party decide to go their separate ways.

If it is a new relationship, well not to worry, but if you maintain long term relationships with more than one person, beware! You may find yourself involved in multiple Family Law proceedings when the time comes to call it quits!

Polygamy vs polyamory: what’s the difference?

Polygamy refers to a situation where a person is married to more than one person. Polygamy is common practice in Africa, the Middle East, and some parts of Southeast Asia, however polygamy is illegal in Australia as it entails the crime of bigamy.

Bigamy has significant penalties in Australia and carries a sentence of up to five years imprisonment.

The Australian Marriage Act 1961 (Cth) only recognises monogamous marriages of two people, including same-sex marriages.

Are overseas polygamous marriages recognised in Australia?

If you are legally married in another country and come to Australia, only to then marry a person in Australia, this would be considered illegal.

Overseas marriages are typically recognised by Australian Law, providing that the marriage is recognised as valid under the law of the country at the time it was entered into and that the marriage would have been recognised as valid under Australian Law had the marriage taken place in Australia. Given that polygamy is not legal in Australia, polygamous marriages that were entered into overseas would not be recognised by Australian Law.

What happens if I am married and in a de facto relationship in Australia?

Although polygamy is illegal in Australia, polyamory is not.

In the eyes of the law, people can be in multiple de facto relationships at the same time, or be married and in a de facto relationship concurrently.

Anyone involved in multiple relationships should understand the consequences they may face if the relationships come to an end. De facto relationships and marriages carry the same weight when it comes to making a claim for property settlement or spousal support after a relationship breaks down.

Anyone involved in relationships that meet the criteria of a de facto relationship and/or marriage may find themselves party to multiple property settlements at once when those relationships come to an end.

For those worried about losing “half of what they own” in a divorce, should be extremely hypervigilant if in multiple relationships as you may be sharing the property pool equally between three or more parties! Property settlements are complex matters in their own right, but if you begin to add third parties to the equation, the complexity increases.

In determining a property settlement when there are more than two people involved in the relationship, the Court will still follow the same five-step process, which is to:

  1. Determine whether it is just and equitable to adjust the parties’ interest in property.
  2. Determine what property is held by the parties and what the property’s value is.
  3. Consider all the contributions made by all parties, including financial and non-financial contributions.
  4. Assess the future needs of all parties.
  5. Review if the division the Court has arrived at is just and equitable and if further adjustments are required. 

In these complex situations, the Court will use its discretion to determine what is considered a just and equitable division of the asset pool and will look at the unique facts of each case.

Will I have to pay spousal maintenance to all former partners if more than one of my relationships comes to an end?

In Australia, when either a de facto relationship or marriage ends, parties to the relationship may be eligible to claim spousal maintenance.

Spousal maintenance is usually required if your former partner cannot support themselves, and you have the capacity to financially contribute to their support.

Spousal maintenance can be paid by ongoing payments or as a lump sum amount. Spousal maintenance should be agreed upon at the same time as negotiating a property settlement to ensure all financial issues are dealt with concurrently.

There are time limits that apply for spousal maintenance after separation. Anyone wanting to claim spousal maintenance from a former partner must apply for a court order (if they have been unable to come to an agreement directly with their former spouse).

To apply for spousal maintenance, you must make an application within one year from the date your divorce was finalised or within two years from the day the de facto relationship came to an end.

It is important to note that the right to spousal maintenance will end when the party receiving the maintenance remarries. It may also end if the individual’s financial circumstances improve, for example if they enter a new de facto relationship, or if their earning capacity changes.

I love ‘love’ – but how can I protect my assets if my relationships don’t work out?

Whether you are in one, two, or more relationships, the best way to protect any hard-earned assets you have that you do not wish to be sacrificed in future property settlement claims, is to enter into a Financial Agreement under the Family Law Act.

The Agreement between you and your partner is legally binding and outlines how a couple’s assets will be divided if their relationship comes to an end. You can enter into a Binding Financial Agreement at any stage of a relationship, however entering into an agreement of this nature early in the relationship is often the best practice to ensure everyone is on the same page and to give yourself the best protection.

Read more: Binding Financial Agreements

Attwood Marshall Lawyers – supporting you through separation

When a relationship comes to an end, whether it be a marriage or de facto relationship, it is important to get trusted advice from an experienced family lawyer as soon as possible. A family lawyer will be able to help you understand your rights and obligations and negotiate a fair property settlement to help all parties move on with their lives.

Attwood Marshall Lawyers have a dedicated team of family lawyers who practice exclusively in this complex area of law. Our lawyers are well-versed at handling complex family law disputes including divorce, parenting disputes, property settlements, financial agreements, and domestic and family violence matters.

If you would like advice regarding your unique circumstances, please contact our Family Law Department Manager, Donna Tolley, to arrange an appointment with one of our lawyers.

Call 07 5506 8241, email dtolley@attwoodmarshall.com.au or book an appointment using our online booking app.

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Emily Edmonds - Associate - Family Law

Emily Edmonds

Associate
Family Law

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Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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