By Lynne Strober
September 7, 2021
If you’re not familiar with throuples yet, you probably will be sometime soon. Throuple is the trendy term for a polyamorous relationship between people who claim an equal and exclusive commitment with each other. We’re not talking threesomes, but three in a couple.
The term throuple is popping up more and more these days, everywhere from The Today Show and USA Today, various articles, Tiger King (not necessarily a good example), The Politician on Netflix, to a House Hunters episode where a throuple and their two children searched for their dream home in Colorado. But while the term throuple is having its moment in the sun, the concept behind it is hardly new. Polyamorous relationships have existed since the dawn of time – and whether you call it polygamy, bigamy or something else, it isn’t going away anytime soon. Throuples are on the increase and take many forms. Two can be married, none married, or there can be more than three.
As a family and matrimonial attorney, the throuples concept struck me. After all, members of a throuple might treat each other equally, but having equal rights under the law is an entirely different thing. For instance, two members of a throuple might decide to have a baby, but can that child legally have three parents? Along those lines, two members of a throuple can certainly marry and choose to welcome someone else into their union, unofficially, but that third person will probably lose out on the legal benefits of marriage (x, y, z, etc.), if not allowed to do so.
Throuples also raise a series of interesting questions outside of the law that society has yet to fully dissect. For instance, going back to the House Hunters episode – how in the world does a throuple go about getting a mortgage and buying a home?
Polygamy and the Law
In the seminal case on polygamy, Reynolds v. United States (1878) the U.S. Supreme Court held that bigamy was not a protected act under the constitution. Nearly 150 years later, the federal law remains in effect; an individual cannot marry more than one person. That said, interesting forces are at work these days, and its not unreasonable to think that someday, throuples might gain equal protection.
Take Utah for example. Utah has always been a hot bed of polygamy, due to the early Mormon church’s prominence in the state. Today, there’s an estimated 30,000 polygamists in Utah, and while it’s still a crime to take more than one spouse, Utah lowered the punishment for doing so in March 2020. Previously, polygamy was a felony punishable by a prison term; now it’s a misdemeanor, as long as the new spouse enters the union voluntarily. The effect is to decriminalize the act and allow law-abiding polygamists to interact with society.
Then there’s Obergefell v. Hodges, the landmark Supreme Court decision that guaranteed same sex couples the right to marry. In Obergefell, Justice Alito suggested that the same arguments supporting same-sex marriage could be used with equal force to justify plural marriage:
“Suppose we rule in your favor in this case, and then after that a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?” Chief Justice Roberts, in the dissent:
According to Chief Justice Roberts, the majority opinion “inserts the adjective ‘two’ in various places,”
A University of Pennsylvania article discusses that if one is applying the principles of same-sex marriage to plural marriage, it can be argued that:
- Plural marriage, like same-sex marriage, is encompassed in the right to personal choice inherent in the concept of individual autonomy.
- The right to marry is fundamental, but nowhere is it required that it be limited to two people, just as it is nowhere written that it must be limited to individuals of the opposite sex.
- Just as it would be demeaning to lock same-sex couples out of a central institution of our nation’s society, it would be just as debasing to bar polygamous couples from this institution of marriage.
If the trouple consists of a married husband and wife who bring a third partner into the relationship, that third person will typically be the one who is denied most rights afforded a legally recognized spouse
- Polyamory differs from polygamy. In a polygamous relationship, one person, usually a man, is married to more than one woman. In a polyamorous relationship, all the partners are intimately involved with each other.
- I knew that polygamy is currently illegal in the United States; and similarly, polyamorous — or multi-partner relationships are not recognized as legal unions, subject to limitations like Utah’s law change.
If the trouple consists of a married husband and wife who bring a third partner into the relationship, that third person will typically be the one who is denied most rights afforded a legally recognized spouse. The non-married partner is not entitled to:
- Property, inheritance rights
- Interest in retirement assets and medical benefits
- Alimony or palimony, unless there is a promise to support
- Any claim to Social Security benefits based upon the earnings of one or both married partners
Careful consideration should also be given to the issue of children:
- What happens if a child is born from one of two women in the union?
- What if the child is conceived and born through a hired surrogate and not a trouple partner?
- Could more than two people adopt a child?
- Can a child legally have more than two parents?
- Are all the members of the marriage given parental rights? Are they equal?
If multi-person marriage were legal, we have to assume that some of these will end in divorce.
- Would the entire union have to terminate its existence or only those who wish to withdraw from the union be able to do so?
- Which partner(s) can receive alimony?
- Which partner(s) are responsible for paying alimony?
- Do the partners receive/pay equal amounts of alimony?
Consider this hypothetical situation: A, B, C, and D are married. If A seeks a divorce and the remaining unit were to pay alimony and equitable distribution and then B were to seek a divorce, are B, C, and D still paying alimony to A and then do they have responsibilities as to B? This would be very complicated, to say the least.
If the trouple divorces and there are children in the union:
- What happens to custody?
- Which partner(s) would be paying child support?
- Would major decision-making powers still belong to all the members of the union?
Wow, I had compiled a lot of questions in the time it takes for an episode of House Hunters’ credits to roll.
We’ve ostensibly come so far so fast, but let’s not forget what it took to get here and what lies ahead.
However, one can argue, and as Justice Roberts alluded to, that the progress we’ve made as a country makes further progress more plausibleand perhaps even more amenable to multiple marriage.
The world has grown ever more accepting of non-gender-specific behavior, gender fluidity and equal rights for all. Multi-person relationships too, in whatever name they’re referenced, are becoming more mainstream, at least in the public consciousness. But like their forebears, not all participants in polyamorous relationships are treated fairly in the eyes of the law.
The question of whether trouple partners will achieve equal rights is not clear or inevitable. Right now there are more questions than answers. What rights should there be to protect the people in multi-person relationships? Should there be laws or should it be incumbent upon the parties to take the necessary legal precautions to provide for everyone in the relationship?
My position in this discussion: protect the client’s rights.
Aside from the novel social aspects of these relationships, what drew me to the topic of trouples and multi-person unions is the concept that some people have subservient rights to others in these relationships.
As attorneys, we need to ensure the rights of all parties are protected in the formation and dissolution of such unions; and in the latter case, that the non-married participants are treated fairly.
Because to interpret the Fourteenth Amendment and “equal protection of the law" is to understand that the concept of fairness is fundamental to states’ guaranteeing the same rights, privileges, and protections to all United States citizens. It is also a key element of the argument that ultimately led to the legalization of same-sex marriage.
We in the legal community must begin the discussion of how to address the issues surrounding multi-person relationships if/when they arise in the future. We need not take sides, nor is this article purporting to advocate one way or the other; but In the absence of laws to follow, we must be prepared if a client walks through our doors asking for help.
Perhaps the answer is to ensure the non-married person is provided for in trusts or other financial arrangements in lieu of defined marital benefits or spontaneous entitlements. Or, maybe you’re ready to potentially make history and take the issue in front of the Honorable nine Justices.
From HGTV to the Supreme Court. That would be something.. Like most change, it starts with a shift in human behavior and eventually may become the subject of legislation.