Yes, in Australia, it is legally possible to be married to one person (your "wife") and simultaneously be in a de facto relationship with another person (your "girlfriend"), provided the de facto relationship meets specific legal criteria.
Understanding Australian Relationship Law
Australia's legal framework for relationships distinguishes clearly between marriage and de facto relationships, allowing for complexities that might not be immediately apparent.
Monogamy in Marriage
In Australia, marriage is strictly monogamous. This means you can only be legally married to one person at a time. Entering into a second marriage while still legally married to another person is a crime known as bigamy, which carries significant legal penalties.
- Legal Definition of Marriage: Under the Marriage Act 1961 (Cth), marriage is defined as the union of two people to the exclusion of all others, voluntarily entered into for life.
- Exclusivity: This "to the exclusion of all others" clause is fundamental to the legal concept of marriage in Australia, preventing simultaneous legal marriages.
De Facto Relationships: A Different Legal Landscape
While marriage is exclusive, the law governing de facto relationships offers more flexibility. A de facto relationship is recognised under the Family Law Act 1975 (Cth) as a relationship where two people, who are not legally married to each other, live together on a genuine domestic basis. Crucially, the law permits an individual to be in more than one de facto relationship at the same time, and even to be in a de facto relationship while also legally married to someone else.
To determine if a relationship qualifies as de facto, the courts consider various factors, including:
- Duration of the relationship: How long have you been together?
- Nature and extent of common residence: Do you live together?
- Existence of a sexual relationship: Is there an intimate component?
- Degree of financial dependence or interdependence: Do you share finances, expenses, or support each other financially?
- Ownership, use, and acquisition of property: Do you own assets together?
- Degree of mutual commitment to a shared life: Do you have plans for the future together?
- Care and support of children: Do you have children together, or care for each other's children?
- Reputation and public aspects of the relationship: Are you seen by others as a couple?
No single factor is decisive; the court considers the totality of the circumstances.
The "Wife and Girlfriend" Scenario Legally
Given these distinctions:
- Your "wife" refers to the person you are legally married to, and you can only have one legal wife at a time.
- Your "girlfriend" can simultaneously be in a de facto relationship with you if your relationship meets the criteria outlined above.
Therefore, the scenario of being legally married to one person and also being in a recognised de facto relationship with another person is permissible under Australian family law.
Key Differences: Marriage vs. De Facto Relationships
Understanding the differences is crucial for navigating relationship complexities in Australia.
| Feature | Legal Marriage | De Facto Relationship |
|---|---|---|
| Formation | Formal ceremony, marriage certificate, registered with Births, Deaths and Marriages. | No formal ceremony or registration required; established by meeting legal criteria for living together on a genuine domestic basis. |
| Legality of Multiples | Strictly monogamous (one spouse only). | Polyamorous permissible (can be in multiple de facto relationships, even while married). |
| Automatic Recognition | Universally recognised upon registration. | Must meet specific criteria under the Family Law Act 1975 for legal recognition, particularly in disputes. |
| Property & Finance | Rights to property and financial support upon separation are generally automatic under the Family Law Act. | Similar rights to married couples for property and financial support upon separation, but usually requires proving the de facto relationship existed. |
| Inheritance | Spouses typically have strong automatic inheritance rights. | De facto partners may have inheritance rights, but these can be more complex and sometimes require specific legal arrangements (e.g., wills). |
Practical Considerations and Potential Implications
While legally permissible, managing a married relationship alongside one or more de facto relationships can lead to significant practical, financial, and emotional complexities.
Financial and Property Matters
A critical aspect to understand is that de facto partners, just like married spouses, have rights to seek property settlement and spousal maintenance under the Family Law Act upon separation. If you are in a de facto relationship (or multiple de facto relationships), these partners could potentially make claims against your assets, including those you hold with your legal spouse.
- Multiple Claims: In a scenario with a wife and a de facto girlfriend, both individuals could potentially initiate proceedings for property division from the relationship with you if it breaks down. The court would assess each relationship separately according to the criteria and circumstances.
- Complexity: Property settlements involving multiple relationships can be highly complex, requiring detailed legal advice and potentially prolonged court proceedings.
Binding Financial Agreements (BFAs)
One practical solution to provide clarity and potentially mitigate future disputes is to enter into Binding Financial Agreements (BFAs). These agreements, sometimes referred to "prenuptial agreements" (though they can be made before, during, or after a relationship), can be used to stipulate how assets and liabilities would be divided if a relationship ends.
- For Married Couples: A BFA can define financial arrangements between you and your wife.
- For De Facto Relationships: A separate BFA can define financial arrangements between you and your de facto girlfriend.
It is highly recommended that all parties involved seek independent legal advice before entering into any BFA, as they are complex legal documents.
Social and Personal Aspects
Beyond the legal framework, individuals in such arrangements often navigate considerable social, emotional, and ethical challenges, which are important personal considerations though not directly covered by legal permissibility.
