The traditional view of relationships is changing. There has already been a huge shift from couples choosing to get married to choosing to live as cohabitees and now non-traditional relationship structures are emerging and becoming more common, and people are increasingly choosing to have multiple partners.
A polyamorous relationship, also sometimes known as ethical non-monogamy, involves having relationships with multiple partners. The definition can cover a variety of different arrangements including a husband having multiple wives, a throuple where three people are in a relationship together or a couple having other separate partners. However, the key factors are that there are multiple partners and relationships involved, and all partners are aware of and have given their consent to all relationships.
There has been a sharp increase in the representation of polyamorous relationships on television and social media. This increased representation raises the question of how the courts would deal with issues arising from the existence or breakdown of relationships with multiple partners, especially as the English legal system is based on monogamous marriage as the legal norm.
Polygamous marriages
Polygamy refers to being married to multiple partners. This differs from a polyamory which is a broader relationship style of having multiple consensual relationships without necessarily involving marriage.
Polygamous marriages cannot be legally formed in England and Wales. Currently the law in England and Wales prohibits a person marrying or entering into a civil partnership with multiple partners. To do so is a criminal offence and could be punishable by imprisonment and/or a fine.
Any second marriage will also be void even where either party is not aware of the first marriage. If a marriage is void it was never valid and is treated as though it never existed. As such, the parties will be treated as if they were never married. However, parties to a void marriage may still be able to apply to the court for financial orders on how marital assets and income should be divided between the parties to a marriage.
However, a polygamous marriage could be recognised in England and Wales if it was valid under the laws of the country where it was performed and that country permits and recognises polygamy. In addition, none of the parties involved should have been domiciled in England and Wales at the time of the marriage. If one or both parties were domiciled in England and Wales at the time of the marriage it will be void and a criminal offence will have been committed. This is to prevent couples simply eloping to a different country to enter into a polygamous marriage.
A person is domiciled in a country if they consider their permanent home is there. However, the meaning of domicile is not straightforward and a person's domicile may change as their circumstances change. This could lead to a situation where a marriage is void or a person is committing a criminal offence whilst not aware of it.
If the conditions above are met then a polygamous marriage could be legally recognised and the parties could have financial claims and proceed with court proceedings against each other on divorce.
There would still likely be complications with immigration and benefits and legal advice should be sought on this as well as your family law status if you are considering moving to England and Wales as a polygamous family.
There is yet to be a case where a marriage between three of more individuals has been recognised in England and Wales because the marriages would have to take place in a country where both polygamy (for both men and women) and same-sex marriages are legal. Throuples have been able to register a civil union in South Africa but the legal status of such arrangements have not been tested in the courts in England and Wales.
If you are moving to England and Wales in a polygamous marriage you may wish to consider the below:
- Check whether the marriage is valid under the law of the country where it was celebrated;
- Check where all parties were considered to be domiciled at the time of the marriage;
- Seek legal advice to check whether the marriage will be recognised as valid in England and Wales in light of the above points;
- Seek legal advice on the implications on immigration, benefits, divorce and inheritance;
- Make a will.
Polyamorous relationships
As is the case with unmarried couples, polyamorous relationships have no recognised legal status in England and Wales. When a polyamorous relationship breaks down there may be additional intricacies, for example, are all parties going their separate ways or are some parties remaining in a relationship, and what are the potential implications for finances and property?
If none of the partners to a polyamorous relationship are married
Unless property is jointly owned, similarly to unmarried couples, any financial claims would be limited to claims under TOLATA which deals with the ownership of property. Learn more about things to consider when living together whilst unmarried.
If there are children, Schedule 1 of the Children Act deals with financial provision for children.
There could also be complications when a person in a polyamorous relationship passes away. Again, if property is not jointly owned and there is no valid will then their partners may not be entitled to any of their estate.
If two of partners are legally married
If two of the partners in the polyamorous relationship are married, they will have significantly greater financial claims against each other available to them under the Matrimonial Clauses Act 1973. This could leave the unmarried party in an incredibly vulnerable financial position.
The unmarried party could potentially be joined in any financial proceedings if they have a legal or beneficial interest in property owned by either of the married parties, but the court’s powers would be limited to any property also in the unmarried party’s name or in which the unmarried partner could successfully assert a beneficial interest. As above they could bring a claim under TOLATA and/or Schedule 1 of the Children Act.
Two areas where the unmarried party would be significantly disadvantaged is in relation to pensions and spousal support. Where parties are not married the court cannot make an order sharing pensions or for ongoing spousal support.
Whilst there is the potential to negotiate a compromise or agreement with an unmarried party, because the court has limited powers the unmarried party’s position within such negotiations would be weaker and, if an agreement cannot be reached, the unmarried party would have limited legal recourse available to them.
If two partners to a polyamorous relationship are married and one of them passes away without a will, that person’s estate will pass to their spouse under the intestacy laws and other partners will not inherit.
Also, only spouses or civil partners will be recognised as next of kin. As such, non-married and non-civil partners do not automatically have a say in end-of-life medical or financial decisions, funeral arrangements or inheritance.
In the UK a spouse or civil partner can inherit from their deceased partner without paying inheritance tax. However, polyamorous partners are not recognised under these laws, and so they may be liable for a higher rate of inheritance tax.
Polyamorous individuals will need to create a will to ensure that their partners receive an appropriate inheritance and seek legal advice on how best to manage any potential inheritance tax and keep their will regularly updated if circumstances change.
Children
There are strict rules governing who will be considered the legal parents of the child and who will have parental responsibility. This means that if a child is born into a polyamorous relationship parents may need to seek legal advice to ensure that all partners have a legal role in raising and supporting the child.
More than two people can share parental responsibility for a child and this can granted by agreement or by an application to the court. A parental responsibility agreement or order will give a parent rights and responsibilities for a child, including the right to be involved in important decision making such as where the child goes to school and medical treatment. Whilst this is not the same as being recognised as the legal parent, it does provide the third parent with a legal status.
Following a breakdown in a relationship the parties may need to agree arrangements for the children to spend time with the other parents. Arrangements can be agreed between parents without court involvement either by discussing between themselves or with the assistance of solicitors or mediators. It may be helpful for parents to enter into a parenting agreement which sets out the arrangements for the child, including more general issues such as communication and rules. FAQs on co-parenting and parental responsibility/ If arrangements for the child cannot be agreed there is no reason why the third parent could not apply to court for a Child Arrangements Order. The third parent may require the court’s permission in the first instance but once this is granted it will have no bearing on how the case proceeds or the outcome.
When considering making a Child Arrangements Order the court’s paramount concern is always the welfare of the child. The courts are increasingly familiar with alternative family structures and understand that there can be various types of parents and parenting relationships.
What legal and financial protections can be put in place for people in polyamorous relationships?
There are several steps that can be taken during polyamorous relationships to offer some protection in the event of a later relationship breakdown:
- Have open conversations at the beginning of all relationships. Seek early legal advice about issues such as finances, property ownership and how you intend to raise children.
- Consider which, if any, parties will be married and consider entering into a prenuptial agreement. If some parties are already married consider entering into a postnuptial agreement.
- Consider formalising agreements
- A cohabitation agreement can be drawn up during the course of a relationship setting out how finances will be managed during the relationship and what will happen if relationships break down.
- A co-parenting agreement can set out how children will be raised and how childcare and costs in relation to the children will be managed during the relationships.
Whilst not binding in the same way as a court order, a formal agreement will confirm intentions and would be a good starting point if there is a later dispute and can avoid conflict later.
- Seek legal advice and consider entering into a parental responsibility agreement in respect of each child as early as possible, to ensure all parents have parental responsibility.
- If there is a property consider who owns this and who should or will have a beneficial interest in this. It may be that this will need to be put into joint names or for a deed of trust to be entered to confirm each partners’ interest. 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.
- Ensure that all parties to relationships have a will and keep these under regular review.
The steps and protections that are required will depend on the specific circumstances of each relationship and early advice should be sought from a specialist family lawyer if any of the circumstances above apply to you.
