Can the Family Courts determine polyamorous relationships?
As family lawyers we advise clients after the breakdown of their marriages and de facto relationships, whether they are heterosexual or same-sex relationships. There are also partnerships called “polyamorous relationships” which have very recently come under scrutiny by the Family Courts.
A polyamorous relationship is defined as having a romantic relationship with more than one partner at a time, i.e. non-monogamous.
Like marriages and de facto relationships, there may be financial and maintenance issues to be determined following the breakdown of a polyamorous relationship. However, to qualify for the assistance of the Family Courts, a polyamorous relationship must be characterised as a “de facto relationship” as well.
The legislation makes it clear that a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. However one or more of the criteria set out in our previous article (Are you in a defacto relationship? – Michael Lynch Family Lawyers) needs to also be satisfied.
The recent case of Jones & Michetti [2022] FedCFamC1F 771 addressed this issue where:
Facts
- There was a polyamorous relationship of approximately 16 years.
- The applicant was in a de facto relationship and lived with another person. All parties were aware it was an open relationship.
- The respondent engaged in an open sexual relationship with both the applicant and their partner, as well as other people over the 16-year period.
- The applicant and respondent lived separately however the applicant stayed at the respondent’s house about once per week and very occasionally up to three nights. They also travelled overseas together, at the respondent’s expense.
- The respondent also paid for the applicant’s gender reassignment surgeries and made provision for the applicant in his Will.
Issues
- The applicant’s view was that she was in a de facto relationship with the respondent, whilst she was also in other committed relationships.
- The respondent alleged that the relationship was casual, and there was no commitment to mutual life other than occasional dates and holidays, which he primarily paid for. He does not dispute that it was a loving relationship in which the parties cared for one another; however, he contended that it was a long term, casual relationship and not a de facto relationship.
- The respondent’s position was that the applicant was in a de facto relationship with one of her other partners given they lived together on a genuine domestic basis, and that he was “the person on the side”.
Outcome
- The Court found that there was no de facto relationship due to the following factors:
- The applicant and respondent did not live together on a genuine domestic basis. Rather, they had their own respective residences, which they spent the majority of their time, and made financial contributions to.
- The parties were financially independent. Whilst the respondent covered some of the applicant’s expenses, he did that for other people too.
- The parties did not own any joint property and treated the other’s property as that of “an invited guest”.
- Whilst there were mutual expressions of commitment to the continuation of the relationship that they had (cards on an anniversary, etc), it was not for the continuation of a “de facto” relationship.
- There was no evidence that any third person understood that the applicant was the respondent’s de facto partner.
- While the respondent left money to the applicant in his Will, the court accepted his evidence that he did not have a partner to leave his estate to, he was generous and concerned about the applicant’s mental health after her reassignment surgery. If the parties were in a de facto relationship, the respondent would have left his entire estate to the applicant.
Seek Legal Advice
Every case is different and should be assessed on its unique facts and circumstances. To ensure you receive legal advice about your entitlements to a property settlement that is tailored to your circumstances, contact Michael Lynch Family Lawyers. Call us on (07) 3221 4300 or email [email protected] to arrange a free-obligation fixed fee appointment today.
