Is polygamy legal or illegal in Australia? A complete guide

Returning to the dating scene can be jarring and scary after a long relationship. Online romances seem to abide by foreign rules, and unfamiliar terms keep cropping up. Terms like “polyamorous”, “open relationship”, and “polygamy”.

By Michael Sheahan, Legal Administration Assistant at Roger Fritz LLP, Brisbane.

Or maybe you have separated from your previous spouse and found love sooner than you expected. You want to marry your new love, but you are still technically married to the old one. What is polygamy, and is it legal in Australia?

What is polygamy?

In India the Chief Minister of the Assam Government is calling for public opinion on his proposed law to ban polygamy. But what is polygamy?

The term polygamy comes from the ancient Greek for “married to many”. Polygamy is essentially where you are married to more than one person. The most common form of Polygamy around the world is where men have more than one wife. This is called “polygyny”.

Is polygamy illegal or legal in Australia?

Polygamy is illegal. The Marriage Act calls this criminal offense “Bigamy”. In the 2016 Family Law Case of Ghazel & Ghazel and Anor the full family court held that polygamous marriages are illegal in Australia. However, marriages outside of Australia that could become polygamous later down the track, but weren’t yet polygamous, would still be recognised as marriages in Australia. This means that if you married someone overseas, and were considering marrying someone else at a later stage, then your first marriage will be recognised.

Polygamous marriages are illegal and not recognised in Australia. However, they can be recognised under the Family Law Act but only for the purpose of a legal proceeding in the Family Court. The marriage would not be recognised outside of the Family Law Court. Section 6 of the Family Law Act says that polygamous unions entered into outside of Australia are considered marriages for the purpose of family law proceedings.

The polygamous marriage will be recognised for a family law proceeding so long as the union was consensual, all parties were at least 16 at the time of the marriage, and the union was not incestuous.

What instances of polygamy are legal in Australia?

You cannot legally be in more than one marriage in Australia. However, under the Family Law Act, you can be in more than one de facto relationship. You can even be married, and still be in de facto relationship with other people. So what is a de facto relationship and what are your rights?

De facto relationships have almost the same rights and responsibilities as marriages. If you separate from your de facto partner you may have to divide your assets through a property settlement, or pay your former de facto partner de facto maintenance.

A de facto relationship is where people are living together on a “genuine domestic basis”. They cannot be legally married to each other, or be related by family. Living together on a genuine domestic basis can look like you both sharing a life, having kids, joint finances, sex, and being viewed by those around you as being in a committed relationship.

So while polygamy, or the crime of bigamy, is illegal in Australia, you can legally be in de facto relationship with multiple people, and even married people. The Family Law Act explicitly allows for this in section 4AA(5)(b), stating

de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

While polygamous marriages are illegal in Australia, you may have multiple de facto partners simultaneously.

How common is polygamy in Australia?

Globally, polygamy is rare. Only 2% of the world population live in polygamous households. Polygamy is most common in sub-Saharan Africa where 11% of the population are in polygamous marriages.

As polygamy is illegal in Australia, and there is no data for how common it is in our country. In most countries around the world, there are less than 0.5% of people in a polygamous household. 

If we include people in polyamorous relationships, in multiple de facto relationships, or open relationships? Just how common is having multiple partners in Australia?

If the data gathered from the United States is anything to go off, potentially as much as 5% of Australians are in a polyamorous relationship, and as many as 20% of people engage in in open sexual relationships at some point in their lives.

Polygamy vs. polyamory: What’s the difference?

Polygamy is having more than one husband or wife simultaneously, while polyamory can come in a range of forms. It is often called “ethical non-monogamy”, and it is where people in relationships look outside of that relationship for love and sex with their partners consent.

You could be in an open relationship, where both parties agree that their relationship is non-exclusive. In open relationships, you’re still allowed to date other people. You could be a part of a “throuple,” a romantic relationship involving three people. You could be a “swinger,” a couple in a marriage who include other persons in sex, or even swap sexual partners with another couple.

There are many arrangements and definitions that fall under the broad umbrella of “polyamory”.

What is bigamy?

While polygamy is being married to more than one person, bigamy is the name of the criminal offense of a married person entering another marriage. Under the Marriage Act, there are two ways you can commit bigamy. It is a crime for:

1. A married person to marry someone else; or
2. An unmarried person to marry someone who is already married.

Is bigamy illegal in Australia?

Bigamy is a crime in both The Marriage Act, and The Crimes Act. The maximum penalty for being a married person who marries another person is 7 years imprisonment. The maximum penalty for an unmarried person who knowingly marries an already married person is 5 years imprisonment.

Why is bigamy illegal in Australia?

One of the main reasons thar bigamy is illegal is from a woman’s rights perspective. Most bigamy in the world is polygyny, where one husband has multiple wives, but a wife cannot have multiple husbands. The United Nations Human Rights Committee has stated that “Polygamy violates the dignity of women. It is an inadmissible discrimination against women.”

What does the future hold for polygamy and polyamory in Australia?

The proportion of polyamorous relationships is on the rise in Australia. The case against bigamy makes sense in the context of countries with appalling woman’s rights records. In Australia where polyamorous de facto relationships are legal, it seems a small jump to legalise Australians being married to multiple people.

We are seeing  polyamorous relationship crop up more frequently in popular media, such as in Aussie TV classic Neighbours, and another in the Global Netflix phenomenon Tiger King.

In 2008, our former Attorney General, Robert McClelland, famously stated that:

“There is absolutely no way that the government will be recognising polygamist relationships. They are unlawful and they will remain as such.”

Those words were spoken 15 years ago, and much has changed since. For example, Mr McClelland punctuated his empathic stance on polygamy by saying “Under Australian law, marriage is defined as the union of a man and woman to the exclusion of all others.” This is no longer the definition, and in late 2017 Australia saw its first same sex marriages. The point being, not even Attorney Generals know what the future holds.

Like all types of relationships, polyamorous and polygamous arrangements can undergo strain and difficulties that can result in their concluding. When relationships break down it often involves the separation of property, money, and superannuation, even when the parties were never married.

In some cases, it can include maintenance payments and affect inheritance rights. Matters can be further complicated where there are Financial Institutions of the relationships.

If you’re separating with your partner or partners, or you require some family law advice, contact our friendly team directly, or request a call back via the form below.