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’ – there’s no question that non-monogamy is more popular than ever. Indeed, a 2023 YouGov poll finding 12% of British people would be open to the idea of non-monogamy. However, what does the rise in non-monogamy mean in English family law, and how can you best protect yourself if your non-monogamous relationship(s) break down?
‘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, for example if the union(s) took place in a country where multiple marriage are 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 these in England (e.g. a spousal visa).
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 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.
Where there are children as a product of a throuple, this can be a 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 child’s legal parents and dictates who is financially responsible for that child, inheritance and nationality; it is very significant. Currently in England only two people may be the legal parents of a child, as there is no option for more than two people to be named on a child’s birth certificate. It is worth noting that in certain states in both the US[1] and Canada[2] it is currently possible to have more than two parents listed on a birth certificate.
Parental responsibility means the person has all the rights and responsibilities of a parent; for example: make decisions about the child’s 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.
With the increase in polyamory, there has been an increase in calls for non-monogamy to become legally recognised. Beside 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 people who identify as polyamorous are not protected against discrimination based on their polyamory.
Recent legal developments in countries like the US, New Zealand[3] 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. Further, the law still provides less protection for unmarried couples/cohabitees let alone throuples. It remains to be seen if cohabitation will be reformed, further to the 2024 Labour Party Manifesto, and that this may open the door to further reform.
As this article suggests, the breakdown of any relationship can be a complex road to navigate. This can be 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 complex area of law.
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