Written by: Virginia Richards (View All Posts
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) Published: August 7, 2018
Categorized: Common Law, Divorce, Family Law, Finances, Maintenance, Procedure, Property Division, Same Sex Issues, Separation, Spousal Support.
Polyamory is a hot topic these days. Societal expectations for relationships seem to be becoming more permissive, and with television shows like “Big Love”, and major news networks publishing polyamory “explainers” (https://globalnews.ca/news/4320857/what-is-polyamory/), polyamory appears to be working its way somewhat closer to the mainstream. It’s clearly not a topic that is going away anytime soon. But polyamorous relationships, just like other more “traditional” relationships, have the potential to break down. And what happens when a spousal polyamorous relationship breaks down? What happens in a polyamorous divorce?
I’M IN A POLYAMOROUS RELATIONSHIP: AM I STILL CONSIDERED A “SPOUSE” BY LAW?
In British Columbia, the Family Law Act sets out two ways in which you can become a spouse: you can marry your partner, or you can live with them for two years in a marriage-like relationship. There is nothing in the Family Law Act that says you can only have one spouse. Therefore, if you reside with more than one person, and you have a marriage-like relationship with each of them, then logic dictates that you can have more than one spouse at a time.
NOT JUST “50/50”: PROPERTY DIVISION & SPOUSAL SUPPORT
If one or both of those relationships were to break down, giving rise to potential Family Law Act claims for spousal support or property division, the matter would become quite complicated rather quickly.
The Family Law Act presumes that property will be divided in two: s. 81 says that “on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.” That presumption clearly cannot work if there are three or more spouses. The court would have to fashion a remedy tailor-made to the circumstances of the parties, using section 95 of the Family Law Act, which allows for the unequal division of family property by order of the court.
In making orders for unequal property division, courts will consider the duration of the relationship, any agreements between the parties, contributions to the career of the other spouse, the incursion of family debt and each spouse’s ability to pay a share of the debt, whether a spouse decreased the value of property in bad faith, tax liabilities, and any factors that would cause significant unfairness. It would be quite tricky to apply these factors to three or more people rather than the usual two. The usual zero-sum analysis simply doesn’t apply.
It’s quite likely that there have already been several polyamorous separations where the parties have had to divide property, but we have not yet seen a public trial decision regarding polyamorous property division or support under the Family Law Act. The uncertainty in how the law would be applied, as well as the cost of a three (or more) party trial, makes it more risky for polyamorous exes to pursue their property and support claims in court.
Anyone who finds themselves in the midst of a separation from a polyamorous marriage-like relationship would be well advised to seek legal counsel to ensure that their interests are protected.
