Throuple relationships and Australian law: What you need to know

There have been quite a few changes that have impacted Australia’s legal society in Australia over the past 100 years. 

By Danielle Henderson, Lawyer at Roger Fritz LLP, Melbourne

On 18 December 1894, women were given the right to vote and stand for parliament. The 1967 Referendum marks the day in which 90% of Australians voted to amend the Constitution to allow the Commonwealth to make laws for Aboriginal people and include them in the census. 

On 9 December 2017, same-sex marriage in Australia became legal with the definition of marriage in the legislation changed to “the union of two people to the exclusion of all others, voluntarily entered into for life,”* instead of “marriage between a man and a woman”. 

There is now a new change creeping into the Australian legal sphere, and this is the recognition of the legal rights of “throuple” relationships. 

*Section 5 of the Marriage Act 1961 (Cth)

So what exactly is the meaning of throuple?

Being a relatively taboo concept, not usually brought up at the dinner table, it is not surprising that the definition of throuple has yet to be legally defined. However, a common consensus of its meaning is “a relationship between three people who have all unanimously agreed to be in a romantic, loving, relationship together with the consent of all people involved.”

So is it therefore possible to set legal parameters around a concept that lacks an exact definition? 

Let us firstly look at the concept of a de-facto relationship. 

It was not until 1 March 2009 that Commonwealth federal legislation began to regulate de-facto relationships. Before March 2009, state and territory laws applied to de-facto relationships. De-facto relationships are now broadly defined in section 4AA of the Family Law Act 1975 (Cth). This section prescribes that for a person to be in a de-facto relationship with another, they must:

• not be legally married;
• they cannot be related;
• with regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Various circumstances are then set out, which would point to two people being in a de-facto relationship. 

These circumstances include, but are not limited to:

1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
5. the ownership, use and acquisition of their property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
8. the care and support of Financial Institutions; and
9. the reputation and public aspects of the relationship**.

Since these 2009 amendments to the Family Law Act, two people proven to be in a de-facto relationship are afforded the same rights and protections under the Act in the event of a relationship breakdown as two people to marriage. 

**Section 4AA of the Family Law Act 1975 (Cth)

Legal considerations for throuple relationships

If the Family Law Act requires de-facto relationships to be “a couple”, does this still allow for a party to a relationship of three or more people living together on a genuine domestic basis to seek to enforce their rights and protections under the Family Law Act? It would appear that the law says yes. 

If parties are deemed to be in a de-facto relationship, then in the event the relationship breaks down, the de-facto spouse is entitled to commence proceedings for a property settlement and potentially spousal maintenance. 

Therefore, if one party to a three-way relationship can prove they were in a de-facto relationship with each of the other parties to that throuple under section 4AA of the Family Law Act, they would have jurisdiction to commence proceedings in the Family Court or the Federal Circuit Court of Australia. 

However, it would appear that if they were to commence proceedings against both other parties to the throuple, they would have to make two separate applications to the court, proving their de-facto status with each party separately. 

This notion also applies to a party to a marriage, who is also a party to a completely separate de-facto relationship. Both that party’s marital spouse and de-facto spouse would have jurisdiction to commence court proceedings against that one party. Furthermore, if one party is in a marriage or de-facto relationship and their spouse or partner are in a second, separate, de facto relationship with another person, then that third person may acquire rights against the first party’s spouse or partner’s assets. That claim has the potential to compete with or affect the first party’s financial position by reducing their spouse or partner’s assets.

Although, as of now, the legal rights and protections of throuples under the Family Law Act rest on the definition of de-facto relationship under section 4AA of the Family Law Act, it would not be surprising if one day such a concept was specifically recognised in an amended version of the Act. 

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