Considering where family law has got to in respect of polyamorous relationships

What follows below is an exploration of the potential difficulties one might face, and proposed solutions for limiting these. Whilst there is not yet a body of relevant case-law one might seek to rely on which specifically deals with the intricacies of polyamorous relationships, as will be evident it is possible to be guided by much of the case law that exists.

To begin, it is important to make a distinction between polyamorous relationships, where all the parties are aware and consent, and a monogamous relationship where one or both parties engage in an external relationship without the other party’s knowledge or consent. A further distinction can be drawn between an open relationship, where both parties are open to their partner dating other people, and a relationship where there are more than two parties to the relationship (a throuple referring to such a relationship between 3 people, although there can of course be more).  This article will deal largely with the latter category.

The law in the UK at present prohibits any person being married to (or entering into a civil partnership with) multiple partners; to do so is a criminal offence (bigamy). Theoretically, a polygamous marriage could be recognised in the UK, in very limited circumstances, for example, where this took place in a country where polygamy is legal and none of the parties were domiciled in the UK at the time of the marriage. It would not be possible to simply elope to say Chad or Pakistan, where it is legal for men to marry multiple women, only to return to the UK – this would still amount to bigamy.

In circumstances where a polygamous marriage was recognised in the UK, there would still be complications. For example, only one spouse can be granted a spousal visa, and/or be nominated as the recipient of spousal benefits. That being said, on divorce the parties to a polygamous marriage would all have claims for financial remedies against their spouse and proceedings would proceed in the usual way, save that it may be necessary for the second spouse to intervene or for both sets of ancillary relief proceedings to be heard together. There is yet to be a case where a truly polyamorous marriage was recognised in the UK (being a marriage between 3 individuals, rather than a husband having multiple wives). This is perhaps unsurprising, when considering the necessity for the marriage(s) (or unions) to have taken place in a country where both polygamy (for both men and women), and same-sex marriage, are legal. This would be an extremely unusual set of facts. That being said, there have been cases in South America where throuples have been able to register a civil union, although it is unclear what status this would hold in the UK.

As is the case with unmarried couples, a throuple (or other polyamorous relationship), has no recognised legal status in the UK. This means that, compared to married couples, parties to a throuple have fewer rights than their married counterparts.

The end of any relationship can often be an utterly emotional and tumultuous time, and when it relates to a polyamorous relationship, there may well be an additional dimension: are all parties going their separate ways, or will two or more of the parties remain in a relationship? It may make little difference to the steps required to formalise a separation, but it may make all the difference to the emotional impact of the separation. As family solicitors, we know all too well that emotions can play a significant role in the approach parties take to negotiations.

Where none of the parties to the throuple are married, the situation would be the same as a break-up between any unmarried couple, and would be limited to claims under ToLATA 1996 (which deals with ownership of property), or, if there are children, there may be a claim by any party to the relationship under Schedule 1 of the Children Act 1989 (which deals with financial provision for children).

If two of the parties were married (and one was not), the married parties would have significantly greater claims available to them under the MCA 1973, where the courts have a wide discretion when it comes to the redistribution of assets. This could leave the unmarried party in an incredibly vulnerable position.

One would expect that the unmarried party would be joined to the proceedings, if they have a legal or beneficial interest in property owned by either of the married parties, however the court’s ability to redistribute assets would not stretch to provide anything beyond what was in their name, or in which they could successfully assert a beneficial interest.

There is one area which immediately springs to mind, which would leave the unmarried party at a significant disadvantage, and that is in relation to pensions. Where parties are not married, the court cannot order that a pension is shared. Pensions can be one of the most valuable assets in a marriage/relationship and so clearly, if one party has no claim to it, this is going to be a huge disadvantage to them.

Whilst there may be a number of creative options available to try and negotiate some compromise or balance, because the court have limited powers, the unmarried party’s position within negotiations will invariably be far weaker than if they were married and indeed, they may well have no legal recourse at all.

At present, it is not possible for more than two parents to have their names listed on a child’s birth certificate as the child’s legal parent. There are very strict rules which govern who is the legal parent, and this will depend on the parties’ relationship, how the child was conceived, whether the correct forms were filled out at the correct time, and sometimes even where the child was conceived. This is a complex area of law and beyond the scope of this article. However, it is important to note that this is not always straightforward (nor obvious) and advice should be sought from professionals at the earliest opportunity.

The parent who was not named on the birth certificate would not automatically have parental responsibility for the child. However, this does not prevent them from being able to obtain this or establish an ongoing relationship with the child. Parental responsibility can be granted by agreement (to a stepparent) but if that is not possible, an application can be made to the court. This will provide them with rights and responsibilities in relation to the child, including the right to be involved in important decisions relating to the child (for example, where they go to school, decisions in respect of medical treatment, whether they are permitted to leave the country). Whilst this is not the same as being recognised as the legal parent, and is therefore quite unsatisfactory for the parties involved, this does provide the third parent with some legal status.

The parties may also need to agree contact arrangements following a divorce/separation. As with married couples, arrangements can be agreed between parties, without court involvement. Whilst not binding in the UK, it may be helpful to draw up a parenting agreement, which sets out the schedule of contact. This could also include more general provisions, for example, whether the parents intend to raise the child under any particular faith. By having frank conversations about how you intend to raise your child following a separation, this can avoid disagreement later. If living/contact arrangements cannot be agreed, there is no reason why the third parent could not apply to court for a Child Arrangements Order.

Depending on the circumstances at the time of the application, the third parent may require permission in the first instance, but once granted, this will have no bearing on how the case proceeds or the ultimate outcome. When considering making an order in relation to Child Arrangements, the paramount concern is the welfare of any child and whilst the law doesn’t recognise more than two legal parents at present, the court are increasingly familiar with alternative family structures and understand that there can be various types of parents (whether they are biological parents, legal parents, or the parent who provides day to day care). That being said, it is still worth instructing a lawyer who is familiar with multi-parent families to ensure that the court are made alive to the additional complexities this may pose.

There are a number of things that can be done to offer some level of protection in the event of a later relationship breakdown:

• Communication is key. Do not leave it until a relationship breaks down to have open conversations about things like finances, and how you intend to raise children.
• Consider formalising an agreement from the outset. A cohabitation agreement can be drawn up during the course of a relationship to set out any of the following:
  • How finances will be managed during the relationship
  • How childcare will be managed during the relationship
  • AND what will happen if the relationship breaks down.

Whilst not binding in the same way as a court order, it will confirm intentions and would be good evidence of such, if there is a later dispute.

• An agreement can also be drawn up during a relationship that deals with expectations for raising a family (i.e. plans for education, religion, diet, where you intend to live, etc). Whilst not binding, it is always good to know you are on the same page and setting intentions early on will be useful, and can avoid conflict later.
• Considering entering into a parental responsibility agreement in respect of each child as early as possible, to ensure all parents have parental responsibility in the event of a relationship breakdown.
• If there is a property that’s owned in one person’s name, but is the family home, consider having this (and any other property) put into joint names or entering into a deed of trust to confirm beneficial interests. Do not rely on the generosity of the other parties, especially if they are married (and therefore have greater rights on divorce). It is important to obtain expert advice prior to taking any steps as there may be different tax consequences depending on the status of each party.

This is by no means an exhaustive list, and as ever, much will depend on the specific circumstances of your case. Whilst it can be difficult to discuss what will happen (both in terms of children and finances) when a relationship ends, the more you can do as a family to plan for this and set out your intention, the easier matters will be to resolve if the worst should happen.