Polyamorous Relationships: Difference between revisions
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{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge | {{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge}} | ||
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{{LSSbadge | {{LSSbadge | ||
| resourcetype = a publication on ''Family Law Act'' basics titled | | resourcetype = a publication on ''Family Law Act'' basics titled | ||
| link = [ | | link = [https://family.legalaid.bc.ca/resources/living-together-or-living-apart Living Together or Living Apart] | ||
}}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''. | }}Polyamorous relationships are relationships involving more than two adults; someone who identifies as ''polyamorous'' is or prefers to be in a relationship with more than one other person at a time. (The "poly" part of polyamorous comes from the Greek word for ''many'', while the "amorous" part comes from the Latin word for ''love''.) Polyamorous relationships are tremendously diverse. They may include adults who are married to each other and adults who have had children together. They may include people who live together and some who don't. The people in a polyamorous relationship may or may not identify as a "family," they may or may not share the same home, and they may or may not own property together. Not only are polyamorous relationships varied and diverse, they can be ''complicated''. | ||
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===Applying family law terminology=== | ===Applying family law terminology=== | ||
The federal legislation on marriage and divorce is a good place to start understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other." | The federal legislation on marriage and divorce is a good place to start for understanding how family law terms like ''spouse'' and ''parent'' apply to people in polyamorous relationships. Section 2 of the ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines ''marriage'' as "the lawful union of two persons to the exclusion of all others." If that wasn't plain enough, section 2(1) of the ''[[Divorce Act]]'' defines ''spouse'' as "either of two persons who are married to each other." | ||
Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'': | Legislation like this clearly says that marriages involve two people, and two people only. On the other hand, let's look more carefully at the definition of ''spouse'' at section 3 of the ''[[Family Law Act]]'': | ||
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The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include: | The definition of "parent" is still restricted. The parents of a child conceived by natural reproduction are limited to the birth mother and the biological father under section 26 of the ''Family Law Act''. However, for a child conceived by assisted reproduction, the people who sign an assisted reproduction agreement can agree that the child's parents will include: | ||
*one or two people who intend to have the child, | |||
*a donor of sperm, | |||
*a donor of eggs, | |||
*a surrogate mother, and | |||
*the "spouse" of a surrogate mother, | |||
for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child. | for a total of six people who can be the "parents" of a child for all purposes of the law of British Columbia. These limits are important, as it is a child's ''parents'' who are presumed, in most cases, to be the child's ''guardians'', and it is only ''guardians'' who have parenting responsibilities for, and parenting time with, a child. | ||
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===What have the courts got to say about all this?=== | ===What have the courts got to say about all this?=== | ||
Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved. | Not much, to be honest. At least not yet. There have been a few cases — one in British Columbia and one in Nova Scotia — involving people in polyamorous relationships, but the judges hearing those cases didn't have much at all to say about the unusual nature of the relationship between the adults involved. | ||
From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that: | From the point of view of people in polyamorous relationships in British Columbia, we need to get decisions from the court confirming that: | ||
#a child can have as many as six parents when the child has been conceived by assisted reproduction | #a child can have as many as six parents when the child has been conceived by assisted reproduction, and | ||
#a person can have more than one spouse at the same time. | #a person can have more than one spouse at the same time. | ||
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==Family law agreements== | ==Family law agreements== | ||
Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property. | Even though the ''[[Family Law Act]]'' seems to be pretty flexible as far as people in polyamorous relationships are concerned, there are still problems that need to be worked out. We haven't yet had a court decide how child support should work when there's more than one parent or stepparent from the same relationship who's liable to pay child support. We haven't had a court decide how to apply the [[Spousal Support Advisory Guidelines]] when there's more than one spouse from the same relationship who's liable to pay spousal support, or when there's more than one spouse who's entitled to receive it. And we haven't had a court decide how to divide property when there's more than two spouses who're entitled to share the family property. | ||
Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this. | Even though there are a handful of court decisions involving polyamorous families, the number of those decisions is surprisingly small given what we know about the prevalence of polyamorous relationships in Canada. There are likely three reasons for this. | ||
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Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming. | Firstly, the laws of the other provinces and territories are nowhere near as adaptable to polyamorous relationships as British Columbia's ''Family Law Act''. It may be that when push comes to shove, people simple don't pursue claims in court if they're not going to obviously qualify as ''spouses'', ''partners'', ''parents'' and so on under the local legislation. Challenging legislation under the equality provisions of the Canadian Constitution is expensive and time-consuming. | ||
Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation | Secondly, it's also possible — in fact, it's quite likely — that people in polyamorous relationships intentionally avoid going to court when their relationships come to an end and resolve their differences in other ways. Polyamorous relationships tend to be very complex in terms of the expectations of family members, their arrangements for covering household bills, assigning responsibility for repairs and maintenance, their living arrangements, and their arrangements for the ownership of property. Dragging these issues through court, even in a province with laws friendly to polyamorous relationships, would be an arduous, costly and protracted affair. Especially if the question of how the law — on basic issues like child support, spousal support, and the division of property — applies to polyamorous families isn't resolved. It makes perfect sense that you'd choose to avoid court and head to mediation, collaborative negotiation or arbitration as infinitely preferable alternatives! | ||
Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator. | Mediation, collaborative negotiation and arbitration are all private processes. There's no laundry to air on the public record, and no obligation to find a resolution by applying the strict letter of the law. Whether you live in British Columbia or not, these are all better processes than litigation. If mediation or collaborative negotiation are successful, the result will be a ''separation agreement'' that everyone will sign; if arbitration is successful, the result will be an ''award'' prepared by the arbitrator. | ||
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===Subject matter of cohabitation agreements=== | ===Subject matter of cohabitation agreements=== | ||
For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about pair relationships work cover the management of most people's relationships really well. | For people in pair relationships, cohabitation agreements usually talk about ''spousal support'' and the ''division of property and debt'' in the event their relationship ends. They don't talk about ''parenting children'' or ''child support'' because it's impossible to make decisions about these issues so far in advance. They sometimes talk about how the relationship itself will be managed, but agreements like this are the exception rather than the rule. The social expectations we have about how pair relationships work cover the management of most people's relationships really well. | ||
While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually | While cohabitation agreements for people in polyamorous relationships can still talk about spousal support and the division of property and debt, and have the same problems talking about parenting children and child support, their real benefit usually lies in talking about how the relationship will work. Common issues that cohabitation agreements can talk about include: | ||
*Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children? | *Will people have children? If so, will the children be conceived naturally or through assisted reproduction? Will anyone else have parenting responsibilities for the children? | ||
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*Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change? | *Can new people be added to the relationship? If so, how? Who needs to agree? If a new person is added, how will everyone's financial obligations change? | ||
*Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave? | *Can someone be asked to leave the relationship? How? What sort of notice should they be entitled to? What can they take with them when they leave? | ||
* | *What should happen when someone decides to leave the relationship? Should they have to give notice? If so, what sort of notice should they have to give? What can they take with them? What can't they take with them? | ||
*What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions? | *What will happen if someone gets sick? Who should be able to make medical decisions if they can't make them for themselves? What will happen if people can't agree on those medical decisions? | ||
*What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns? | *What will happen if someone dies? What will happen to their financial obligations, the property they own and any interests in common property that everyone owns? | ||
What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about those problems will be handled before moving in together. | What's really important here is to anticipate every kind of problem that might arise during a relationship, talk about those problems ahead of time, and try to make an agreement about how those problems will be handled before moving in together. | ||
===Managing negotiations with lawyers=== | ===Managing negotiations with lawyers=== | ||
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When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement. | When people in a pair relationship want to sign a cohabitation agreement or a marriage agreement, one of them will usually hire a lawyer to write it up. The draft agreement goes to the other person, who reviews it with their lawyer and gets some advice about whether it's a good agreement or a bad agreement. Quite often the second lawyer has a number of changes to make, and proposes these to the drafting lawyer. After a bit of back-and-forthing, a final draft is ready to sign. Most family law agreements that are written by lawyers include "certificates of independent legal advice." These get signed by the lawyers and the parties, and indicate that each person saw a lawyer about the agreement, and that the lawyer explained to them how the agreement affects their rights and obligations as well as the alternatives to signing an agreement. | ||
The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement. | The [[Family Law Agreements]] chapter talks about this process in a lot more detail, but this is the bare bones of it. No matter whose lawyer drafts the agreement, the other person always has the chance to comment and make changes to the agreement, and both people get legal advice about the meaning and impact of the agreement. | ||
In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships. | In polyamorous relationships, things are a little more complicated. This is mainly because there are more than two lawyers involved, and each of the lawyers has an obligation to discuss a proposed cohabitation agreement with their clients and suggest changes that make the agreement more fair... or at least more fair from their client's perspective. That's an awful lot of cooks in the kitchen to mess things up, especially when you consider how much more complicated cohabitation agreements for people in polyamorous relationships are compared to cohabitation agreements for people in pair relationships. | ||
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Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want. | Sometimes the best solution is to hire a lawyer whose only job is to take care of the writing part, and doesn't represent any of the parties. This makes the drafting lawyer a lot more neutral. Their job is to talk with the people entering the relationship about the sort of things the agreement can talk about and the things it can't, and then write out the agreement that the people entering the relationship want. | ||
The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the | The draft agreement then goes to the lawyers for each of the people entering the relationship. Each lawyer talks to their client about the law, how the proposed agreement would affect their rights and responsibilities, and whether the agreement is fair or not. Based on that discussion, each lawyer then talks to the drafting lawyer about the changes they think are needed to better protect the interests of their client, make the agreement more understandable or make the agreement easier to use. The drafting lawyer then takes everyone's comments and tries to edit the agreement to reflect the changes people want, and lets everyone know if there are any comments that are contradictory. The revised agreement then goes back to each lawyer-client pair for more legal advice and possibly more changes. Those changes go back to the drafting lawyer for further revisions, which hopefully results in a final agreement that everyone is as happy with as possible. | ||
This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer. | This process is a little complicated and requires that an awful lot of lawyers be hired. However, cohabitation agreements for people in polyamorous relationships are far more detailed than cohabitation agreements for people in pair relationships, they involve more people, they tend to cover many more issues, and the law that needs to be addressed is a lot more difficult to navigate. As a result, it is even more important that everyone has their own lawyer to advise them on how the agreement affects their interests, and this means that there's a lot more lawyers to argue about the details. Getting a neutral lawyer to take care of the writing part and reconciling everyone's comments is often the most efficient way to go, even though it means hiring yet another lawyer. | ||
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If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice. | If you are entering or leaving a polyamorous relationship, it's critically important that you get legal advice about your situation. You can't assume that the law will apply to you the way it did to friends and family who entered or left pair relationships. The trick, of course, is finding the right lawyer to give you that advice. | ||
The | The section on [[You & Your Lawyer|You and Your Lawyer]] in the chapter on [[Understanding the Legal System for Family Law Matters | Understanding the Legal System]] has information about how to find and hire a lawyer. However, people involved in polyamorous relationships need to make an extra effort to find family law lawyers who are familiar with this kind of relationship. A lot of lawyers who deal with problems involving these relationships will say so on their website. If you can't find someone who says explicitly that they handle polyamorous family law problems, then call a lawyer outside your hometown, or even outside of British Columbia, who deals with polyamorous families and see if they can refer you to someone. Or, you could also try contacting a family law lawyer whose website says they deal with LGBTQ issues. LGBTQ issues are ''not'' polyamorous issues, but lawyers who routinely manage LGBTQ issues in the family law context are more likely to have an idea about how family law works in the context of polyamory. | ||
==Resources and links== | ==Resources and links== | ||
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===Legislation=== | ===Legislation=== | ||
* ''[ | *''[https://canlii.ca/t/8q3k Family Law Act]'' | ||
*''[https://canlii.ca/t/551f9 Divorce Act]'' | |||
*''[https://canlii.ca/t/5533n Criminal Code]'' | |||
* ''[ | *''[https://canlii.ca/t/52hdt Civil Marriage Act]'' | ||
* ''[ | |||
* ''[ | |||
===Links=== | ===Links=== | ||
* [ | *[https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html Spousal Support Advisory Guidelines] | ||
* [https://family.legalaid.bc.ca/finances-support Legal Aid BC's Family Law website's common questions on Finances & Support] | |||
** See "How is property divided when a common-law relationship ends?" under the heading "Common questions" | ** See "How is property divided when a common-law relationship ends?" under the heading "Common questions" | ||
* [ | * [https://family.legalaid.bc.ca/separation-divorce/going-through-separation Going Through Separation] from Legal Aid BC | ||
** See "Proving you're separated if you and your spouse still live together" | ** See "Proving you're separated if you and your spouse still live together" | ||
===Resources=== | |||
{{REVIEWED | reviewer = [[JP Boyd]], | *[https://canlii.ca/t/7d3 "Polyamorous Relationships and Family Law in Canada"] from Canadian Legal Information Institute (CanLII) | ||
{{REVIEWED | reviewer = [[JP Boyd]], 11 March 2020}} | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
