9th Jun 2015

The legal complexities of polygamy

Someone on Tumblr asked my about my opinion on the legal complexities of polyamorous marriage.

Hi, I like your blog but I have a legit question about poly relationships. I have heard people say that poly marriages would be a big headache as far as any divorces would be concerned, specifically involving children and custody. What is your take on that? Any reasons it would, in fact, be very messy, or any ways that it wouldn’t? I’m talking purely legal fallout, not actual support for full equality (because I support it!!)

I took this opportunity to elaborate my preferred system of marriage:

Thanks! And good question.

I’ve thought about this some. Full Marriage Equality had a proposal a while back to create a kind of polycule marriage, where marriage contracts are still between two people, but you can be in more than one at the same time. Children are automatically still under the custody of their biological parents, but they can be adopted by more than one, so there’s plural custody. In the event of divorce, that marriage contract alone gets dissolved, not the others in the polycule.

It sounds nice, but I think in practice it hews way too much towards an idealized, atomized view of relationships. I’m more of a fan of “line marriage”, where the marriage exists as its own kind of legal entity. As long as there is more than one person in the marriage, the marriage exists. People, or groups, can leave, and people or groups can enter. You can have a marriage which exists long past its original members, as new members come in to replace the old.

It would work a lot like a partnership. If you divorce, you’re divested of the marriage. How that gets resolved would be an issue of specific marital contracts, and established and yet-to-be-established jurisprudence. A lot of the benefits and responsibilities would likely be the same, though laws would have to be changed (as in the polycule case) to account for the possibility of multi-spousal households.

As for child custody, it’s already plenty complicated, considering there are children out there who get into situations where they have multiple parents: mother, father, surrogate, step-father, etc. It would almost certainly be cleaner than all that. This is one issue which I’m on the fence about. Distributed group custody would be simpler to organize, but it would require changes in custody law, otherwise every divorce in a non-monogamous marriage would become a mess of custody conflicts. The other possibility is to retain the polycule model for custody, allowing people to voluntarily become a guardian, but not making it a mandatory part of marriage.

You’d still have issues of keeping separate bank accounts, and designating common property, and the rest – the more people you add to a relationship, the more complicated it becomes (of course), so why should marriage be any different? In that there are more human relationships involved, yes, it will be more complicated. That’s just a fact of life. But if the lawyers of the Earth can deal with all of those complicated tax codes, they can handle tripartite divorces just fine.

This is the primary reason why I don’t like polycule marriage. Its based on the false premise of atomized relationships, as though not only should your relationships ideally not affect each other, but in practice they never will, and any poly person can tell you that’s ridiculous. The whole reason poly people worship strong communication skills is precisely because all those relationships become entangled, and if you can’t see what’s going on it’ll rip itself apart. If your marriage with one spouse is legally unrelated to your marriage with your other spouse, you’d get into even more problematic situations.

For one, you could get into a bunch of marriages without ever informing any of your other spouses. Then, when one of them declares a fault divorce and takes a chunk of your property, the other spouses are suddenly surprised by your quick drop in net worth. If you follow that with another fault divorce, then you can clearly see that the fault divorce of the second spouse is affected by the fault divorce of the first spouse, because they both have claims on the same property, even if the contracts were signed separately. This is exactly what I don’t like about Kenya’s recent polygamy bill. You can’t just hermetically seal the emotional, familial, and financial relationships of people. Your other spouses take up your time and resources. Atomized marital contracts don’t reflect the actualities of human relationships, and I think would actually introduce an extra level of complication and potential duplicity.

Line marriage (or group marriage, or whatever you want to call it) acknowledges the interrelated nature of all common spouses by forcing them to deal with each other legally. In order for a new spouse to enter the marriage – regardless of how many members they’re involved with, or even if they’ll have sex with anyone – their status within the marriage vis-a-vis everyone’s property and child custody, has to be resolved to everyone’s satisfaction. There’ll inevitably be a default state of affairs for marriages, just like marriages now without prenuptials. You also can still only be a spouse of one marriage at a time. That removes one complexity from the equation, and eliminates the possibility of legally valid clandestine marriages. (So, in a way, “bigamy” would still be fraudulent, but it would now mean you’re a registered member of two households.)

And yes, this does make it sound like one wouldn’t get hitched to that on again/off again secondary boyfriend. That’s the whole point. It’s not supposed to be like joining some club and getting a pin. If the relationship isn’t serious enough to entangle financial assets and child custody, then don’t get married! That’s the whole point! You’re creating a little commune with the people you love and rely upon, and are letting them rely upon you. There’d be no point to the institution, legally, if that weren’t the case.

Under any model, I would think that new spouses would operate exactly like step-parents: they would be guardians, but not have full custody, and in the event of a divorce the burden would be on them to prove why the should have visitation rights, unless they formally adopted the child. Also under any model, and even if there is no legal polygamy, multiple paternity should still be permissible. The actualities of modern families demand it.

Suppose a woman gets pregnant, and it turns out that the child has mitochondrial problems, so they use mitochondria from a donor. That makes three biological parents. Then suppose the woman gives the child up for adoption. Now you have two social parents who are distinct from the biological parents. What if the adopters have an open adoption? If the biological parents are going to be part of the life of the child, wouldn’t it make sense for everyone to have some kind of custody rights, even if they’re not all equal? This situation is already possible now.

Line marriage makes sense to me because you can use existing theory about formal organizations, their divisions and mergers, and the divestment of members from an organization like a partnership, to resolve any new complexities about marriage. It also just reflects the actuality of how polygamy would work. If a bunch of different people are all signing legally binding contracts entangling their finances in some chain of marriage, they should all be fully aware of the legal status of everyone else’s relationships, and they should have a say in how they’re all formulated, and given the chance to unilaterally divorce if they don’t like another marriage.

I guarantee that a polycule style of marriage would lead to this anyway, since people would end up making demands on other spouses’ marital agreements, and putting special clauses in their own agreements which depend on the presence and status of meta-spouses. The difference is that by shattering it into a bunch of different contracts, a model of autonomy is forced upon the agreements which does not conform to what the contracts are actually trying to do – which is mutually regulate the legal claims of other marriage contracts which relate to the status of their own marriage. Using a “marriage charter” system, instead of a web of marital contracts, makes things easier by making it all one big agreement, with everyone’s rights and responsibilities spelled out together in one place. When you factor in that most people will take on whatever default set of rights and responsibilities there are – which most do now – then this also makes it easier for the government to define the “default” of legal marriages.

The fact is, if you’re marrying another woman, you should have to tell your existing wives, and if any of them object you should not be allowed to go forward without divorcing those wives first. That just seems obvious to me, but that’s not part of a system of atomized pair-marriage contracts. Yes, the constraints of having to legally deal with your existing spouses whenever you get a new spouse would put a downward pressure on the size of marriages. I say, so what? Once again, people shouldn’t marry frivolously. It’s about legal, financial, and emotional commitment. If you can’t do that with more than two people, then don’t marry a third. That doesn’t mean you need to be sexual partners with all your spouses, but it does mean that you have to resolve things with them, and take their desires into consideration when making decisions which affect the family. That’s how it should be.

So yes, it would be complex, but it wouldn’t be complicated. It’s doable. Many cultures already have systems which allow it, and many countries with fully developed systems of laws and courts still allow polygamy of some form (usually polygyny). We could take some tips from the pre-colonial marriage laws of the Kingdom of Kandy. Same-sex marriage, polygamy, and consanguineous marriage have existed in some form or another in various cultures. We have historical examples to look to for all of these things. It’s not that revolutionary. More than anything, though, it’s not the legal institutions which would be revolutionary, but the way we think about them, and the way we think about sex, relationships, and marriage. The changes started way back in the Enlightenment, and they’re still going on. Reactionaries are fighting centuries of social change – social change which has already put its stamp on their own marriages in ways they don’t seem to see.

Hope that answered your question.

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