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The rise of non-monogamous relationships, and any legal implications

The rise of non-monogamous relationships, and any legal implications:

With the likes of Louis Theroux and Stacey Dooley fronting documentaries looking at non-monogamous relationships both in the UK and abroad, fictional depictions in TV shows, dating apps creating new categories when searching for partners, adultery becoming legally irrelevant (as Ayesha Vardag, Founder and President of Vardags wrote recently) and headlines shouting about celebrity throuples – theres no question that non-monogamy is more popular than ever, with a 2023 YouGov poll finding 12% of British people would be open to the idea. However, what does the rise in non-monogamy mean in English family law, and how can you best protect yourself if the relationships break down?

What is a non-monogamous relationship, and how does the law view them?

Non-monogamy is an umbrella term for a relationship involving more than two people. There are different types of non-monogamy, such as polyamory and ethical/consensual non-monogamy. This article will focus on polyamory and ethical non-monogamy as these involve all partners actively consenting to the arrangement and will use the colloquial term throuple for ease (although recognising that these relationships are often between more than three people).

As with unmarried couples, throuples are not legally recognised in England. Currently, in England, it is illegal to marry or be in a civil partnership with more than one person; this is called bigamy. There are very limited circumstances where a marriage involving more than two people could potentially be recognised in England – if the union(s) took place in a country where this is legal and then the parties returned to England to live. However, it is important to note that there would be issues in relation to spousal benefits as only one spouse would be granted them in England (e.g. a spousal visa).

What happens if the relationship breaks down – finances?

Whenever a relationship breaks down, there can be a lot to unpick – these issues also come with heightened emotions and can be distressing for all involved. If there are more than two people in that relationship – these issues can prove even harder to navigate.

If no one in the throuple is married, then the law would follow as it would on the break-down of an unmarried couple. This means that there would be limited rights to make a financial claim against one or other of the throuple. Claims to the ownership of property are governed by Trusts of Land and Appointment of Trustees Act 1996 (ToLATA), or if there are children (see below for further details) then financial claims for the support of children can be made under Schedule 1 of the Children Act 1989.

If, however, two of the throuple are married to each other and – for example – the other person was not, the two who were married would have far more options available to them under the Matrimonial Causes Act 1973, along with the wide discretion of the English court to make financial awards. The non-married party could be joined to any court proceedings, if they had an interest in the property owned by the married parties – but this does not mean they have the same rights as a married couple.

It therefore remains the case that non-married parties to a non-monogamous relationship are in a weaker position than their married counterparts. The article explores below some of the ways an unmarried party can better protect themselves, in the sad event a throuple breaks up.

What happens if the relationship breaks down – children?

Where there are children as a product of a throuple, this can be a very complex area of law. There are two distinct rights involved with children: legal parenthood and parental responsibility. Legal parenthood is who the law recognises as the childs legal parents and dictates that you are financially responsible for that child, and they will inherit your assets as well as your nationality; it is very significant. Currently this can only be two people, as there is no option for more than two people to be named on a childs birth certificate in England; although it is worth noting here that in certain states in both the US and Canada this is currently possible. Parental responsibility means the person has all the rights and responsibilities as a parent – for example make decisions about the childs education, religion, their day-to-day care, whether the child can leave the country for a long period, and medical treatment. More than two people can have parental responsibility – one easy way is by agreement, as would be expected in a throuple.

However, if that relationship breaks down, then child arrangements would likely need to be agreed in the throuple. Arrangements can be made between the parties without the need to resort to court. One option is to document arrangements in a parenting agreement – while not legally binding, these can assist in setting out time and contact with the child. If arrangements cannot be agreed, then the application for living and/or contact arrangements can be made by any person with parental responsibility.

This can be a very sensitive and complex area of law – and therefore it is important to make sure you seek advice from an experienced family lawyer.

How can you protect yourself in a non-monogamous relationship?

  • Get expert advice on property purchases or ownership if that property will be, or currently is, the family home – there are options for you to protect your interest;
  • Consider entering into a cohabitation agreement if you will be living together during the relationship. While not legally binding, they can set out how finances and other matters will be dealt with during, and in the event of the breakdown of, the relationship. This can set peoples minds at rest, as well as serve as evidence of intention if the matter reaches court;
  • As detailed above, consider entering into a parenting agreement where there are children of the throuple. Again, these are not legally binding – but they can prove persuasive as well as making expectations clear at the outset and keeping dialogue open about possible issues before they escalate;
  • Document parental responsibility if one or other person who is not the legal parent of the child will be making decisions about the childs life; and
  • Seek expert advice from an experienced family lawyer on the event of a breakdown of a non-monogamous relationship.

Calls for legal recognition of non-monogamy?

With the increase in polyamory, there has been an increase in calls for non-monogamy to become legally recognised. Besides the issues this lack of legal status causes in relation to family law, polyamory is not considered a sexual orientation. This means that polyamory is not classed as a protected characteristic under the Equality Act 2010, and therefore that people who identify as polyamorous are not protected against discrimination based on their polyamory. Recent legal developments in countries like the US and Canada suggest that England is lagging behind in terms of legal reform in this area. However, the case remains that a significant shift in policy and public opinion will be needed if the law is to change – as the majority of British people continue to remain in traditional couples/family units, and the law still provides less protection for unmarried couples – let alone throuples, compared to married couples.

As this article suggests, the breakdown of any relationship can be a complex road to navigate – even more so when there are more than two people involved in that relationship. If you have any concerns about your legal rights or arrangements, then Vardags has a highly skilled and experienced team of lawyers able to advise and represent you in this nuanced area of law.

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