Polyamory and Divorce

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

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?

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.

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.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

 

Back Up Before You Shack Up! Seven Essential Steps to Take Before Moving in Together

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1. Understand what you are getting into. Did you know that in British Columbia you become a spouse pursuant to the Family Law Act if you have lived in a “marriage-like relationship” for two or more years? Did you know that you can become responsible for child support of your partner’s children if you are a) a spouse of the parent , and b) have contributed to the support of the child for as little as a year? Living together is serious business, and so it is important to go into it with eyes wide open.

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2. See a family lawyer. Have you read the Family Law Act? Well, if you are thinking of moving in with your love, you ought to familiarize yourself with the basics of the Act because it will govern what happens to family property and family debt if your relationship ends. Even with just one appointment, a BC Family Law Lawyer can help you understand the basic rights and responsibilities imposed by the Family Law Act when you cohabit with your romantic partner.

3. Take Stock. What assets and liabilities do you have? Once you become a spouse, you can be sued for property division and spousal support if your relationship ends. Now is the time to tally up the assets you have and to consider whether your income level exposes you to a potential spousal support claim. It’s a good idea to print off a copy of all of your bank accounts, investments and debts so that you have a record of the balances as at the time you started living together. Keep those records tucked away just in case.

4. Think carefully before giving away your furniture. Assets brought into the relationship are yours to keep, but you lose that benefit if you dispose of them during the relationship. Furniture purchased after you move in together will likely be family property, subject to division upon relationship breakdown.

5. Talk to your partner about your expectations. The time to sort out the division of household duties is before you move in together. This would be a good time to think about how each of you will contribute to household expenses. Consider couples counselling if either of you are finding it difficult to have these conversations. The time to establish effective communication is now!

6. Appraise real property. If you have real property (ie. a house, condominium, or other land) you should consider getting an appraisal. In general, property that you bring into a spousal relationship is excluded from division but the increase to excluded assets is divided between you. In urban areas in British Columbia, real property often can increase in value by tens of thousands of dollars within a short time. It is important that you know what the value is at the outset so that if your relationship does break down, you know your exposure to a claim by your spouse.

7. Consider a cohabitation agreement. A properly executed cohabitation agreement can help you define the expectations you each have for living together, and reduce the chance of litigation if you do break up. You can use a cohabitation to alter or completely opt out of the rules set out in the Family Law Act. One of the requirements of a cohabitation agreement is that both spouses understand the nature and consequences of the agreement, so make sure that you see a lawyer before signing anything.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.