Tag Archives: Polyamory Legal Challenges

Legal Challenges to Polyamory Wrap Up

At this point I’ve covered legal challenges to polyamory. Topics ranged from anti-bigamy/polygamy laws, to the lack of protection against discrimination in the work place.

In the wake of the US Supreme Court decision in support of same sex marriage, US news coverage has had a lot of interest in poly marriage.

There are LGBT people in the US who got married and immediately lost their jobs.

Nepal has issued its first 3rd gender ID while in the US trans folk struggle to get their id changed from one binary gender to another.

In a country where polygyny is legal, a polyamorous person is currently fighting a custody case. Polyamory may cost them their children. (Details withheld for privacy of the affected family.)

Whatever your opinion on poly marriage, whatever the legal status of polyamory in the country you live in, we need to remember the big picture. Poly marriage would be great–but before we can practice our relationships freely, all of these legal challenges need be addressed, in every part of the world.

Laws and legal practices affecting our children

If you’re been following this blog for a while, you’ll understand why today’s topic is a personally painful one. I’m not going to go as in depth as a usually do, in an attempt to avoid triggering myself.

If anyone else has knowledge or personal experience in this area, please feel free to share in the comics.

Our children are, for many people, both our most precious gift, and our greatest vulnerability. “Think of the children!” is an effective rallying cry for the defense of the status quo because even criminals want nothing to do with those who harm children.

I’ve previously covered how there is no evidence that polyamory is harmful to children, but until legal shit catches up with the research (and for tha matter, until we have more extensive and definitive research), people who are in poly relationships will face threats to their children.

Custody Laws

This will vary widely by jurisdiction. In the US there is no state that fully protects poly children in a custody dispute. Pennsylvania as some protection, but the precedent setting that protection is full of loopholes, and it’s going to take another poly family being dragged through the mud to determine the full extent of that protection.

Anywhere else in the US, the judge can summarily give your children to your ex just because you are polyamorous. In states that have grandparents laws, or otherwise allow third parties to sue for custody or visitation, your relatives, in-laws, and in some cases friends, can use polyamory as a justification to ask the legal system to give them control of your children.

From what I can tell, in the European Union the “best interests of the children” rule applies, leaving the door open for exes to claim that being raised in a poly home is not in the best interests f their child. How “best interests of the children” is determined will vary from country to country. I have no knowledge of custody in the rest of the world, and invite those with experience or knowledge to comment below.

Child Protective Services

Again, varies hugely by jurisdiction. Personal experience and anecdotal evidence is that child protective services usually don’t want to get involved in polyamory or non-monogamy. They have really cases of child abuse that puts kids in the hospital to deal with, they don’t want to worry about kids who are healthy, happy, and cared for, who just happen to have an unconventional home life.

That doesn’t mean a particularly bigoted or closed minded child protective agent can’t fuck with your family. Child protective services usually have broad powers to take children, and prove the abuse afterwards. Needing to prove abuse first leaves the risk the child will be further injured or even killed during the time needed to prove anything. Most child protective reps are careful exercising this power, because if a judge determines later they overstepped, they will be in trouble. But some reps may think they can trump up  reason to take your kids, and in some jurisdictions poly may be ruled a sufficient reason to take your kids–especially if the judge handling child protection cases is bigoted or closed minded themselves.

Paternity Laws

Laws establishing paternity, and a father’s responsibilities, vary widely. In some jurisdictions, the law assumes that a woman’s husband is the father of any children she has. Jurisdictions with this kind of law will often have hoops poly families need to jump through to establish a non-spousal father.

Not getting a legal marriage can avoid this issue, unless you run into common law marriage statutes.

Two Parent Laws

The assumption that every child has two, and only two, parents is legally common. it is also very hurtful to children raised in poly families who may lose all contact with a beloved parent due to their lack of custody or visitation rights.

A recent towards allowing three parents on a birth certificate has developed in the US and England, though only in limited cases.

 

Standard disclaimer– I’m not a lawyer, talk to a professional about any legal issues/concerns you may have.

 

Again, please leave a comment if you have any experience or knowledge to add to this topic.

 

More on laws affecting polyamory.

Laws Preventing Polyamorous Families From Living Together

Standard disclaimer–I am not a lawyer, always speak with a professional. Non-standard disclaimer–This post will be a bit more US-centric than usual. I don’t know anything about this kind of municipal law in other countries. Please leave comments with any information you can add!

Depending on where you are, who you ask, and what your local history is, the laws we are going to be discussing today are the result of public health concerns, racist/classist attempts to restrict housing to “desirable groups”, or round able attempts at morality policing.

These laws take different forms from health codes to zone regulations to building codes to rental regulations. But the gist of the law is always the same: to limit the number of people who can live together.

I can respect the health rational–overcrowding does increase the spread of disease, and while I am lucky enough to live in a time and place where cholera outbreaks, diphtheria epidemics and typhoid fever outbreaks are all-but unheard of, I know part of the reason I am privileged to live in such a time and place is the institution of strong and enforceable health codes that prevent the streets from turning into open sewers and prevent the type of overcrowding.

When a health inspector tells me that my poly family may need to split into two apartments because of health codes, and explains that the code shouldn’t apply to us because it’s intended to prevent Hispanic families from crowding 20 people in an apartment, so he thinks we’ll squeak by but we should be prepared just in case…

Well, my “respect” quotient turns none existent.

Regardless of their intention, these laws can make it difficult or impossible for poly families to find a home together.

How many people are allowed to live together can vary from a particularly restrictive code outlawing 3 people who are part of a married family sharing an apartment (openly campaigned for as a way to prevent unmarried couples from having children and destroying the moral fabric of the city) to requiring that if more than 3 people live together they must be legally related in some fashion, to college towns were 5 or more people can rent an apartment only if the landlord applies for a student-rental exemption.

These laws are more likely to affect people who rent than people who own their homes. This is because legally restricting what a landlord does with their property doesn’t violate privacy laws, but in some cases restricting what someone who owns a property does with it can violate privacy laws. However, owning their own home didn’t protect this family in Hartford, Connecticut.

Not all municipalities have these laws. In my (admittedly limited) experience, they are damn-near universal in the North East, and common in many US cities. What I know of Europe leads me to suspect that similar anti-overcrowding health codes may be in effect in some regions. I have no idea Europe has any equivalent of the building and zoning codes driven by racists, classist, or moral motives I’ve seen in the US. After the rest of the world, I have no idea.

Laws like these are not the only things preventing poly folk from living together. In some places, the social stigma and backlash from a poly family living together is a much bigger concern than legal issues. And of course living together can in some regions can lead to common law marriages and/or leave you open to prosecution as bigamists.

 

Again, please leave a comment if you have additional information concerning these types of laws and regulations, especially outside the US.

 

Laws About and Affecting Non-Monogamy

Standard disclaimer: I am not a lawyer or legal expert. For legal advice consult a lawyer in your area.

Bigamy, Adultery, and other Laws

Laws about and affecting non-monogamy are very common throughout the world. These laws vary widely, but in general they will take a few forms.

Laws against bigamy

Laws against bigamy are most common in Europe and parts of the world which have (forcibly or otherwise) adopted European cultural ideals. Laws against bigamy are less common in parts of Africa, the Middle East, and Asia, where some countries still allow polygyny (having multiple wives).

Bigamy is having two spouses. Some laws refer to polygamy instead of bigamy, but the basic idea is the same–you are only allowed to marry one person.

Bigamy laws that end there are called “simple bigamy.” For most polyamorous relationships and other forms of non-monogamy this, in and of itself, isn’t a legal problem. While it would be nice to be able to marry all the people we love, it doesn’t stop us from being with them. An example of “simple bigamy” can be found in Norway* (thanks to Norwegianpoly for pointing this out!), where you can live with two partners, as long as you aren’t legally married to both of them.

The real challenge comes from the bigamy laws that extend to more than simple bigamy. Some bigamy laws (such as the one in Utah the Brown family challenged) make it illegal to live together as if you were married. Other bigamy laws make it illegal to present yourself as married to more than one person.

These versions of bigamy laws can cause problems for poly folk and other non-monogamous relationships  (such as the Brown’s). It is worth noting that the law in the Brown’s case was used to punish them for daring to speak out about their relationship. Their family was well known in their community, but no one was interested in prosecuting them until they started “embarrassing” the state of Utah.

It is not just the existence of these laws that are a problem, but the way they are enforced.

Laws Against Adultery and Laws Against Fornication

While not universal, laws prohibiting adultery and fornication are extremely common. Legal sentences for these crimes vary from minor fines to execution. In the US, non-monogamous folk charged with fornication or adultery could probably challenge the law using Lawrence v. Texas.

Laws regarding adultery vary in one important way. In some jurisdictions, a charge of adultery must be brought by the “betrayed” spouse. Married poly folk who live in these areas cannot be charged with adultery as long as their spouse doesn’t want to bring charges–and if you are actually practicing ethical and consensual relationships, your spouse would have no reason to bring charges.

In other jurisdictions, anyone can charge you with adultery, whether or not your spouse supports your relationships.

Common Law Marriage

Okay, for folks in a few parts of the world (including 9 US states), here’s the monkey wrench in everything. Common law marriage is also known as sui juris marriage, informal marriage, or marriage by habit and repute.

Here’s the way common law marriage works. You live with some one for a while and present yourselves as husband and wife, BAM! you’re married. No license, ceremony, certificate, or Justice of the Peace needed.

The specifics of common law marriage vary. Israel includes an “economic test” in its law regarding common law marriage. (Israel is also unusual in that the state will only recognize traditional marriage ceremonies from Orthodox, Christian and Muslim religious authorities, so allowing “common law” marriage is a way for the state to recognize non-Orthodox (or equivalent) marriages and interfaith or civil marriages without needing to recognize the right of non-Orthodox (or equivalent) religious figures to perform a marriage. Texas does not include any test other than the couple declaring their intent to be married and living together. (Edited 8/30/15, thanks to Stav for corrections re: marriage in Israel)

I do not know of any jurisdiction where you can end up with a common law marriage without either the intent to get married or actively presenting yourselves to the world as married. Update: Thanks to Mel Millar for pointing out that in parts of Canada you can end up common law married without the intent to get married, and the result is screwing up access to government benefits for poly folk (and many monogamous folk) in Ontario.

This is where common law marriage can seriously trip up poly folk. Because we are not legally able to marry all of our spice, it is not uncommon for poly folk to declare that they consider themselves married and live together as if they were married. In which case, depending on where you live, you have just met the standards for common law marriage and may be prosecuted for bigamy, and Bonus! are now guilty of adultery and fornication. Gotta love that hat trick.

Thankfully, common law marriages are extremely uncommon around the world, and pretty much unheard of outside of the Anglosphere (Israel, as noted above, being an unusual exception).

 

It’s popular in some poly discussions to put forward the idea that the legal standing of poly relationships only applies to some types of polyamory or to some poly folk but not others. These laws, especially in combination, can and do affect all of us.

Luckily for poly folk, the countries where polyamory is most popular are also, by and large, countries that are less likely to persecute these crimes, and if they prosecute tend to have less extreme sentencing. (Tend to, not always do. I believe there is one state in the US with a 10-year prison term for adultery.) Additionally these laws are rarely used in many countries with a significant poly population because, by and large, both police and politicians have better things to do with their time.

That said, as noted in the Brown’s case, these laws can and have been used as ways to legally persecute non-monogamous families who draw too much attention to themselves. If polyamory and/or non-monogamy becomes a popular political target (which grows increasingly possible as conservatives in various countries recognize they are losing their battle against LGBT), then we may find use of these statutes to attack non-monogamy increasing.

Next Sunday we’ll be checking out how laws affect where and how poly folk can make their homes.

*One political party in Norway is apparently pushing to make polygamy legal. If polygamy is legal, anti-bigamy laws disappear, and there are lots of happy poly people. Fingers crossed for Norway!

 

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Polyamory Legal Challenges

Given the response to Chief Justice Roberts’ dissent, including his speculation on poly marriage, This is a very good time to take a look at some of the legal challenges facing poly and other non-monogamous folk both in the US and around the world.*

So for the time being Sunday blog posts will be dedicated to polyamory legal challenges, including:

  1. Laws affecting non-monogamy: bigamy, fornication, adultery, etc
  2. Laws affecting where we can live: health codes and zoning laws
  3. Laws and legal practices affecting our children: custody laws and child protective services, paternity laws, etc
  4. Laws and legal practices affecting our work: anti-discrimination laws (or the lack of them)
  5. Laws impacting our finances: inheritance law, joint property law, corporate law
  6. Laws and legal practices impacting our health: insurance law, privacy laws, hospital rules and regulations, medical power of attorney

If you know of or are interested in any other legal challenges facing poly folk, in the US or around the world, please let me know in the comments and I’ll do my best to include it.

Usual disclaimer: I am not a legal expert or lawyer, and nothing included in this blog is intended as legal advice. This blog is for information purposes only if you are facing an issue involving the law, please contact an attorney who has passed the bar in your area.

 

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*I will be continuing the Mental Illness and Polyamory blog series, but it is a very intense topic and writing on it twice a week is burning me out. Plus, the legal stuff is just plain topical. So I’m going to cover mental illness one day a week for a little while. Look for the next mental illness blog post Thursdays.