Throuple Trouble: Can you seek a property settlement in an open relationship?

Open relationships and polyamorous arrangements are becoming more visible in Australia. When these relationships break down, parties are often uncertain about how Australian family law will respond. The answer is that while open relationships are not excluded from family law, they are not recognised as a separate legal status. Instead, courts apply existing legal categories, which can make these cases more factually complex.

Are open relationships recognised in Australian family law?

Australian family law does not recognise an “open relationship”, “polyamorous relationship” or “throuple” as a distinct legal category. The Family Law Act 1975 (Cth) remains structured around:

• • marriages;
  • de facto relationships between two people;
  • property interests held by third parties; and
  • equitable claims

This means the open nature of a relationship does not automatically create rights or prevent a claim. The Court’s task is to identify which legally recognised relationships and property interests exist and then apply the usual principles.

Open relationships and de facto relationships

In many open relationship disputes, the threshold question is whether there was a de facto relationship at all. Under section 4AA of the Family Law Act 1975 (Cth), a de facto relationship exists where two adults live together as a couple on a genuine domestic basis. The Court considers a range of factors, including:

• • the duration of the relationship;
  • whether the parties shared a residence;
  • the nature of their financial arrangements and how they managed their finances;
  • the degree of mutual commitment to a shared life;
  • household duties and care of children; and
  • the reputation and public aspects of the relationship.

No single factor is determinative, as the Court looks at the overall domestic reality. An open or non-exclusive relationship does not prevent a finding of de facto status. Australian family law recognises that a person may be married and also in a de facto relationship, and that it is legally possible to be in more than one de facto relationship at the same time.

Non‑exclusivity is relevant, but not fatal

Sexual non-exclusivity is not fatal to a de facto relationship claim. However, it may carry weight where it reflects an absence of a shared domestic life, particularly where the parties:

• • maintained separate homes;
  • kept finances largely independent;
  • did not acquire property together; and
  • did not present publicly as a domestic couple.

In Jones & Michetti [2022] FedCFamC1F 771, the Court considered whether a 16-year open or polyamorous relationship could amount to a de facto relationship under the Family Law Act 1975 (Cth), where the applicant was already in a simultaneous de facto relationship with another partner and alleged that she was also in a de facto relationship with the respondent.

Despite a long-term intimate relationship, shared holidays, financial generosity, and even a will describing one party as a “partner”, the Court found there was no de facto relationship as the there was no manifestation of “coupledom”. The absence of a common residence, joint property, and public recognition as a domestic couple was decisive.

The case demonstrates that intimacy and generosity alone are not enough, there must be a genuine domestic partnership.

Why open relationships complicate contribution assessments

Open and polyamorous relationships often raise practical difficulties in contribution cases. Assessing the financial and non-financial contributions from each person is part of the property settlement process for all family law matters, but the complexity increases where multiple relationships overlap.

Identifying the relevant relationship period is one such issue. Parties may have been romantically involved for many years but only lived together domestically for a much shorter time. Parties may have been married well before an additional party entered the domestic arrangement. This will affect the weight given to contributions and their impact upon the property pool.

Characterising payments is another. In open relationship settings, one party may fund travel, rent, or other lifestyle expenses for another. Courts will carefully distinguish between:

• • payments towards acquiring or preserving property;
  • ordinary lifestyle expenditure;
  • gifts or support payments; and
  • dissipation of assets to third parties.

Where a party maintains more than one household or relationship, contributions must often be allocated between different relationships and asset pools, which can complicate the analysis considerably.

Non-traditional relationships can also produce complex homemaking and parenting evidence. The Court will consider who performed domestic tasks around the house, where they were performed, and whether it supported a recognised family unit. Care of children may be relevant where it reflects a genuine domestic role, rather than occasional or social involvement.

That said, an open relationship may still involve strong contributions where the parties shared a home, pooled finances, purchased property, raised children, and functioned publicly as a family unit.

Throuples and property disputes in Australia

There is currently no leading Australian decision determining a property settlement between all members of a throuple as a single-family unit. Australian family law does not recognise a throuple as a legal relationship category.

This does not mean a person in a throuple has no claim. It means the claim will be analysed through existing legal principles two-person de facto relationships, marriages or third‑party legal or equitable property interests rather than by treating the throuple as one relationship.

The influence of New Zealand’s Mead v Paul

The most significant “throuple” property case is the New Zealand Supreme Court decision in Mead v Paul [2023] NZSC 70. While not binding in Australia, it is persuasive.

The Court held that a triangular relationship could be analysed through its constituent two‑person relationships and that exclusivity was not essential to de facto status. The polyamorous relationship was broken down into constituent pairings:

• • Brett Paul and Lilach Paul’s marriage;
  • Brett Paul and Fiona Mead’s alleged de facto relationship;
  • Lilach Paul and Fiona Mead’s alleged de facto relationship.

The matter was not resolved by simply saying “this is a throuple, therefore equal thirds”. The proper inquiry was whether the parties’ relationships could be analysed as qualifying relationships under the legislation and applicable equitable principles.

Bottom Line: complexity requires expert advice

Open and polyamorous relationships are not excluded from Australian family law, but they are not recognised as a separate legal category. The decisive questions remain whether a legally recognised relationship existed, and what each party contributed financially, non-financially, and domestically.

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If you are separating from an open or polyamorous relationship and are unsure whether you can seek a property settlement, early advice is critical. These matters often turn on fine factual distinctions about domestic life, contributions, and property interests. The Baker Love family law team regularly advises clients in complex and non-traditional relationship structures and can help you understand where you stand and what steps to take next.

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