(973 Words | Estimated Reading Time: 5 minutes)
According to YouGov polling 11-13% of adult Brits are, have been or would be open to the idea of being in a polyamorous relationship[1]. Assuming YouGov are reliable, with their finger on the pulse of British culture, this would mean that there are around 4 million polyamorous persons in the UK.
That’s a lot of people.
The term polyamory might be attributed to any romantic relationship involving more than two persons. And things can look very different from relationship to relationship.
On the one hand, we might have a throuple – three persons who all live together and view themselves as equally committed to one another. Two of them created a child, but they all view themselves as equal parents to the child. And they contribute equally towards financial responsibilities.
On the other hand, imagine a large house inhabited by 20 people. They are all sexually involved with each other in some way, but any given person might be romantically attracted to only one, a few or none of the household. Some persons explicitly assume financial responsibilities, paying for the bills of the house and covering the daily expenses of everyone living there. One person contributed a lot of money towards the mortgage on the house, but otherwise doesn’t interact very much with anyone in the group.
The possibilities are endless.
But what happens when there is a break-up?
For married couples, divorce laws will apply. But polygamy – marrying more than one person – is illegal in the UK.
When a non-married couple separates in the UK, if no cohabitation agreement exists, generally speaking each person will keep whatever is legally in their own name. However, special rules apply to land and properties: the courts can consider any evidence which might show that the couple intended to create a different result. And, if no clear evidence exists, the court can make a decision that they think fair after reviewing the general history of the relationship and actions of the couple. For example, if one person contributed towards the mortgage payments of a property owned in their partners name, then it might be imputed that there was an intention for them to have a share in the property.
In principle, these same rules should apply to polyamorous persons.
But will courts have the confidence to decide what may have been intended, or what might be fair, at the end of a polyamorous relationship? In the case of our throuple mentioned above, we might argue that the existence of a third person hardly complicates matters. But what about our 20-person web? The court may think it so complex that they are unable to make a decision.
The truth is that we can’t know for sure. Of the many thousands of reported judgements produced by the UK’s Family Courts, exactly zero make reference to the terms ‘polyamory’ and ‘polyamorous’. In any capacity.
Non-married couples can control the outcome of any break-up more by entering into a cohabitation agreement. This is basically a pre-nup for couples who are not married, and who are presumably not intending to marry any time soon. It allows them to decide who will get what, in relation to all assets, not just the land and property.
Could polyamorous units also create contracts to decide their own fate? It is wholly untested, but I strongly believe that the courts might and should feel cornered into saying ‘yes’. Indeed much is untested because it was only in 2013 that the UK’s Supreme Court recognised pre-nups as valid and enforceable documents (thanks to the efforts of my mentor, the very good lawyer that is Ayesha Vardag). In doing so, much was said about respecting the autonomy of the individual to decide their own fate, so long as they are suitably advised and aware of what they are getting themselves into.
On what grounds could we reasonably refuse polyamorous persons the chance to do the same? One might object on the grounds of “public policy” or “public morality”. But, we respect religious minority beliefs and a whole bunch of other things that are perhaps aptly described as counter-cultural and which are shared by certainly less than 4 million persons.
With this sentiment in mind, and a warranted hopefulness in my heart, I am enthusiastic about creating many of what I call the Polyamorous Arrangement Agreement. A cohabitation agreement of sorts that accommodates for the many people that may enter into and out of a relationship web. That outlines the expectations and roles and relationships between all persons involved, in respect of financial responsibilities but also matters of romance, child-raising and more. An ever-changing constitution for a group of persons who value the ability to create their own rules.
I speak to many polyamorous persons. Some are unconvinced that an agreement of this kind would be right for them. It is unsurprising – part of the appeal of a polyamorous lifestyle is the sense of freedom and openness and flexibility that it provides. Contracts might be seen as an encroachment upon all of that. I prefer to see the contract as a statement of what those involved know to be the case. A statement that offers protection and also, importantly, a sense of validity to persons who presently have little in the way of established formalities to celebrate their union.
It seems that polyamorous units are here to stay. As we undergo the familiar journey of viewing them first as taboo, and then as alternative, and, finally, as normal, we must grapple with the challenges that they give rise to.
It’s an interesting time. I believe I am, at the time of writing, the only lawyer in the UK who is championing this issue.
If you are a polyamorous person and think that a Polyamorous Arrangement Agreement might be right for you, please do not hesitate to get in touch.
[1] Data collected annually from 2019-2024: https://yougov.co.uk/topics/society/trackers/how-brits-feel-about-polyamory