The law in Australia is clear: a marriage or a de facto relationship is between two people only. But where does this leave people in a polyamorous domestic relationship when it comes to separating and dividing up their assets in a property settlement? Polyamory and property settlements is an unusual aspect of family law, but should people in non-conventional romantic relationships find themselves in a legal blind spot, or does the family law legislation need changing? A New Zealand case described as the first of its kind puts the spotlight on polyamory and property settlements.
In New Zealand, the family law system is a little different to that of Australia, with property settlements discretely dealt with under their Property Relationships Act. By contrast property settlements in Australia are governed along with other family law matters via our Family Law Act. But in both cases, the law does not appear to cover multi-partner relationships.
This recent controversial case in New Zealand involved a dispute between a three-way polyamorous relationship over a luxury home in which all three partners had been residing for 15 years. The polyamorous relationship had formed in the following manner: a heterosexual couple had married in 1993 before forming a polyamorous relationship with another woman. In 2017, the married female partner separated from her husband and her female partner, and then the husband separated from the other female partner the following year. All three were separated from each other at the time of the court proceedings.
The originally married woman applied to the family court to divide up the ownership of the luxury property, seeking a third of the value of the property. The family court however found itself unable to rule on the matter and referred the case to the High Court.
The High Court then ruled that the NZ law could not handle a multi-partner relationship, with the judge in the case also reaffirming that the family court could not “stretch” the law to accommodate a three-way relationship.
The High Court did ponder whether the relationship could be divided into three distinct de facto relationships in order to resolve the matter fairly. However, given the unmarried female partner was a member of relationships with both the married female partner and the husband, the maths simply couldn’t work:
“This would mean she was entitled to 50 per cent of the property while [the other two partners] would get 25 per cent each. That was inconsistent with the law’s principles of equal sharing after a break-up”.
The High Court said only legal reform through parliament could potentially address this conundrum.
Critics of reform in this area would point to the fact that the legislation would theoretically have to cater to unlimited partners: why stop at three people? Why not four, five or six? The resultant legal intricacies would be a nightmare for the courts.
However, members of non-conventional romantic relationships that are “functionally similar to marriages, civil unions or de facto relationships” often feel invisible in the legal system, and this appears to be another such example.
We previously wrote about polyamory and parenting proceedings and noted that family courts in Australia do not care about parents’ sex lives unless it can be shown that the parents’ lifestyle has a negative impact on the children’s welfare. A UK court had ruled that children would be adopted out of their polyamorous parents’ custody despite having a loving relationship and attachment to their parents. The ruling came after social workers’ claims of neglect and that the parents’ lifestyle had made it hard for them to supervise their kids.
With Australian family law currently undergoing a phase of reform, it remains to be seen whether the issue of non-conventional romantic relationships will form part of the reform agenda…
Source: Queensland Times
Do you need advice on a property settlement? For expert help, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
