Polyamory - Legal Status

Legal Status

In most countries, it is legal for three or more people to form and share a sexual relationship (subject sometimes to laws against homosexuality). However, no Western countries permit marriage among more than two people. Nor do they give strong and equal legal protection (e.g., of rights relating to children) to non-married partners – the legal regime is not comparable to that applied to married couples. Individuals involved in polyamorous relationships are considered by the law to be no different from people who live together, or "date", under other circumstances.

In many jurisdictions where lesbian and gay couples can access civil unions or registered partnerships, these are often intended as parallel institutions to that of heterosexual monogamous marriage. Accordingly, they include parallel entitlements, obligations, and limitations. Amongst the latter, as in the case of the New Zealand Civil Union Act 2005, there are parallel prohibitions on civil unions with more than one partner, which is considered bigamy, or dual marriage/civil union hybrids with more than one person. Both are banned under Sections 205-206 of the Crimes Act 1961. In jurisdictions where same-sex marriage proper exists, bigamous same-sex marriages fall under the same set of legal prohibitions as bigamous heterosexual marriages. As of yet, there is no case law applicable to these issues.

Bigamy is the act of marrying one person while already being married to another, and is legally prohibited in most countries where monogamy is the cultural norm. Some bigamy statutes are broad enough to potentially encompass polyamorous relationships involving cohabitation, even if none of the participants claim marriage to more than one partner. For instance, under Utah Code 76-7-101, "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

Having multiple non-marital partners, even if married to one, is legal in most U.S. jurisdictions; at most it constitutes grounds for divorce if the spouse is non-consenting, or feels that the interest in a further partner has destabilized the marriage. In jurisdictions where civil unions or registered partnerships are recognized, the same principle applies to divorce in those contexts. There are exceptions to this: in North Carolina, a spouse can sue a third party for causing "loss of affection" in or "criminal conversation" (adultery) with their spouse, and more than twenty states in the US have laws against adultery although they are infrequently enforced. Some states were prompted to review their laws criminalizing consensual sexual activity in the wake of the Supreme Court's ruling in Lawrence v. Texas. Some social conservatives hold that the reading of Justice Kennedy's opinion in Lawrence is that states may not constitutionally burden any private, consensual sexual activity between adults. Such a reading would throw laws against fornication, adultery, and even adult incest into question.

New Jersey's 2004 Domestic Partnership Act could in theory be used to legally connect more than two persons (albeit imperfectly), perhaps using a combination of marriage and domestic partnership. However, no case law in support of this theory yet exists.

At present, the extension to multiple-partner relationships of laws that use a criterion similar to that adopted in the UK, i.e., "married or living together as married" remains largely untested. That is, it is not known whether these laws could treat some trios or larger groups as common-law marriages.

If marriage is intended, most countries provide for both a religious marriage and a civil ceremony (sometimes combined). These recognize and formalize the relationship. Few Western countries give either religious or legal recognition – or permission – to marriages with three or more partners. While a recent case in the Netherlands was commonly read as demonstrating that Dutch law permitted multiple-partner civil unions, this belief is mistaken. The relationship in question was a samenlevingscontract, or "cohabitation contract", and not a registered partnership or marriage. The Netherlands' law concerning registered partnerships provides that:

1. A person may be involved in one only registered partnership with one other person whether of the same or of opposite sex at any one time.
2. Persons who enter into a registered partnership may not at the same time be married.

When a relationship ends, non-consensual infidelity ("cheating") is often grounds for an unfavorable divorce settlement, and infidelity generally could easily be seized upon as a prejudicial issue by an antagonistic partner.

A detailed legal theory of polyamorous marriage is being developed. The "dyadic networks" model calls for the revision of existing laws against bigamy to permit married persons to enter into additional marriages, provided that they have first given legal notice to their existing marital partner(s).