The traditional view of relationships is changing. While marriage was once seen as the ultimate goal for couples, many now choose to cohabit without formalising their relationship. Additionally, polyamorous relationships are becoming more visible and common in modern society. This type of relationship is where individuals have multiple intimate partners with the knowledge and consent of everyone involved.
This increase 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/relationships
Currently the law in England and Wales prevents 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.
Effect of Subsequent Marriages
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.
Financial claims
Unless property is jointly owned, similarly to unmarried couples, any financial claims would be limited to claims under TOLATA 1996 which deals with the ownership of property.
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.
Children
One of the most complex legal questions arising from polyamorous relationships concerns children; specifically, who is recognised as a legal parent.
Parental responsibility
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.
Breakdown of a relationship
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.
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 main 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.
Financial provision for child
Schedule 1 of the Children Act 1989 allows a parent, guardian or person with parental responsibility to seek financial provision for the benefit of a child. This is particularly relevant where the parents are not married or in a civil partnership, as they cannot rely on the financial remedies available on divorce or dissolution.
How can individuals in polyamorous relationships protect themselves?
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 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 (e.g. plans for education, religion, diet, where you intend to live). 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).
