Non traditional families, and the law.

Factual Questions
1

So I have an odd sort of question, since for my own state, Virginia, I know that the law pretty much forbids any sort of sexual relationship other than a man and a woman having sex face to face after getting married. (Not sure if you are required to turn off the lights.) But, regarding the law on bigamy in particular, I would like to ask a hypothetical.

I have some friends, they are all living together in the same house, they have more bedrooms than they do people, although fewer bathrooms. (It’s an old house.) There are two men, and four women. Now, I can’t say for certain, but I think that one of the men is married to one of the women. At least they both go by the same last name. The other man, and the other three women are pretty much all lovers. Not at all sure the married couple are not involved, but not sure they are quite separate, either. My question would be simpler if they were separate, so let’s assume so.

Is it illegal in most states for a man to have three women living with him and for all of them to be sexually involved? Not married, just living together. This cannot be bigamy, since they are not married. There are no children in the household, and the relationship is more than a decade old, so kids are obviously not a likely outcome. Not sure that would have importance in the legal question.

My friends will not make any statement about intimate matters other than “That’s private.” Everyone in this group is entirely comfortable with the relationship, and very accepting of other peoples sensitivity to their differences. They just don’t talk about it at all. They are mostly fairly circumspect about public display of affections, although at home, a great deal of kissing goes on.

So, my question, is this polygamy, in a legal sense? Is it illegal in states less sexually repressive than Virginia? I don’t have evidence that it is so, but I have always assumed this is a married couple, and a guy and his three wives sharing a house. Maybe a guy and his two wives, and one of his wives girlfriend, though.

I understand that to many this is immoral, that isn’t my question. Is it legal, in most states of the Us?

Tris

2

Triskadecamus writes:

> . . . the law pretty much forbids any sort of sexual relationship other than a man
> and a woman having sex face to face after getting married . . .

No, it doesn’t. The effect of the Supreme Court decision a few years ago was that no sexual relationships or acts between adults can be outlawed anywhere in the U.S. (O.K., at this point you’re going to say, “Whoosh! How stupid are you? I was joking.”) In any case, it’s not possible to outlaw any sexual relationships or acts between adults anymore.

3

IANAL, but doesn’t Lawrence v. Texas make it unconstitutional for states to regulate the consensual extramarital sexual behavior of unmarried adults? (And possibly married ones for all I know, but AFAICT nobody’s yet tested the effect of Lawrence on anti-adultery statutes.)

My guess would be that as long as they are complying with applicable regulations about occupancy of a rental property, the law may not concern itself with what they choose to do in the property’s bedrooms.

4

Glad to hear I can have sex with whomever I want, even here in the Commonwealth.

But, I was wondering about the bigamy/polygamy matter. Is just not getting a marriage license sufficient to completly obviate the law against bigamy then?

Tris

Oh and one of them owns the house, she inherited it from her family. (She is the one I always thought was married to one of the guys.)

5

Yes.

The point of the bigamy statutes is to prevent more than one person from seeking the legal benefits of marriage with another (e.g., tax status, inheritance, etc). If they’re not married or holding themselves out as married, then they’re not taking advantage of the legal benefits of marriage, so the state has no particular interest in the relationship.

6

Exactly. If just shacking up with somebody and describing your relationship with them as “private” officially counted as marriage in the eyes of the law, I’d have more ex-husbands than you could shake a stick at.

On the other hand, if you shack up with somebody and publicly and formally refer to them as your spouse in social and official contexts, that may be enough to establish your relationship as a “common-law marriage” (depending on the laws in your state), which does officially count as marriage in the eyes of the law.

7

Hmm. I suppose that could account for the terse answer from these otherwise very open and forthright people. Hadn’t thought of that.

Not the sort of folks who would willingly make somone else a co-conspirator.

Tris

8

Well, apparently Virginia doesn’t recognize common-law marriages contracted in-state (although FF&C means that they recognize such marriages contracted and acknowledged in another state).

But there may be some other legal pitfalls they’re trying to avoid. I know a polyamorous trio in another state, two-thirds of whom are married while the other guy is officially their housemate or tenant. They keep their full relationship status very dark with respect to colleagues and neighbors, both on account of public opinion and (I think) to avoid any possible liability for bigamy due to a married person “purporting to be married to another person”.

Of course, your single friends, as we noted, aren’t liable on bigamy charges, although we don’t know how their married housemates may be involved. Anyway, maybe they really do just want to keep the relationship private.

9

Virginia does not recognise common law marriages, and indeed according to Wikipedia it never has, so this is not a danger to whicy your friends are exposed.

In any event, holding yourself out to the public as having a conjugal relationship with two, three or four other people would not be holding yourself out as “married” to them. For a common law marriage you have to hold yourself out as husband and wife; simply letting people know you have sex is not enough. Besides, it’s pretty much of the essence of marriage that it’s an exclusive relationship. So even if Virginia did recognise c/l marriage, I don’ think your friends would risk prosecution for bigamy just for letting people know that they’re all engaged together in a big ol’ love-fest.

Finally, if you do hold yourself out as married, you do not make the poeople you hold yourself out to into “co-conspirators”.

No, I suspect the reason your friend tells you that “it’s private” is that he thinks it’s private.

10

Well, if they do have a relationship closer than that of housemates, they may choose to keep it quiet not out of a desire to be dishonest, but because it might put someone’s job or birth family relationships in jeopardy if it became known that they were in a multi-person relationship. (Child custody is often an issue but you mentioned they have no children.)

IANAL but as a polyamorous unmarried person I try to keep up on the local statutes, and as I understand it, “bigamy” refers to the act of getting married while still legally married to someone else. Other acts may be illegal according to laws against fornication or adultery or fraud or something, but they aren’t bigamy. Referring to yourself as married doesn’t constitute bigamy; in Oklahoma, when we had common-law marriage, one of the criteria for eligibility was that you could not already be married, or otherwise ineligible to marry each other (cousins, same sex, etc.)

11

That’s also one of the criteria for getting married in a ceremonial marriage. Nevertheless if you go through a ceremonial marriage while already legally married to someone else you commit bigamy. So why should it be different for common law marriage?

The point about common law marriage is not that is is something a little like “real” marriage, legally speaking. It is real marriage, legally speaking. In a jurisdiction which recognises common law marriage, in any circumstance in which it would be the crime of bigamy to (invalidly) do whatever you do to contract a ceremonial marriage, then generally speaking, in the absence of some statutory provision to the contrary, it will also be the crime of bigamy to (invalidly) do whatever you do to contract a common law marriage.

12

I’m pretty sure there has been during the last months a GQ thread about someone, living openly with his/her spouse and another partner, who was being prosecuted for bigamy.

13

Only 9 or 10 states recognize any form of common law marriage. So in the vast majority of cases (including as noted, Virginia) shacking up and and referring to your spouse has no legal effect.

14

That makes sense, except if the law doesn’t require you to take an action to be common-law married, or it’s an ambiguous action like cohabitating (which people do with no intent to marry, too). It’d be fun to talk to a lawyer about whether bigamy refers to the action of marrying a second spouse, or the state of being married to two people; it’s my understanding that it’s the first, so nobody’s going to be accidentally committing bigamy by mistakenly meeting the criteria of common-law marriage

(ETA: Of course, if you’re common-law married and know it, and you marry with a marriage certificate, you’re definitely busted.)

15

The sticking point, and the bit that bothers gays who want equivalent marriage rights, is what benefits there are from the legal status. not-trivial stuff like “I can’t tell you how he’s doing in the hospital and you can’t visit, you’re not family” all the way down to some stranger coming and kicking you out of your house because he’s your late partner’s long-lost nephew and the house was in their name. Not to mention benefits, in the USofA where health insurance is a touchy issue…

If none of these are relevant and they don’t care, then the legal issues are irrelevant. As mentioned, the arrangement itself is not illegal. You still run the risk of one partner having a meltdown and kicking everyone else out of their house - something that’s a lot harder to do with just 2 people in many places which recognize some form of common-law arrangement.

In Canada, discrimination on the basis of marital status is illeage. A sharp lawyer might find some way to interpret that - i.e. firing someone for being in a 3-way co-habitation is illegal. That’s why there are lawyers. Not sure the laws in Virginia, but the US tends to have a very limited attitude to employees having rights.

This is the “slippery slope”. In much of the world outside christendom and inside Utah, multiple wives has been an acceptable practice. If the definition of “marriage” is open to revision, why would not any arrangement the participants willingly get into be valid? If so, how do the legal rights re-arrange when it’s more than 2 people? Sounds like a non-GQ area…

16

Possibly in Utah, where nothing is as it seems.

In most places (and at common law) actually attempting to get married a second time is an essential element of bigamy. In a jurisdiction with has common law marriage, taking the steps which constitute a common-law marriage is enough for this, but simply shacking up is not. In Mormon-dominated Utah, however, they have long felt a need to be whiter-than-white on this issue, so Utah law provides that bigamy is committed if, being married to someone, you purport to marry someone else or you cohabit with someone else.

17

I don’t think you can “accidentally meet the criteria of common law marriage”, since one of those criteria is that both parties should actually consent to their relationship constituting a marriage, and another criterion is (in nearly all jurisdictions) that they should hold themselves out to others as husband and wife.

Cohabitation for “a reasonable period” is usually also a criterion, but it’s never enough on its own. You can’t find yourself married simply by shacking up with someone for a period, even a long period.

18

In this particular case, the people in question are outside of the interest of the law as it applies to criminal sanction - this is because of several changes in the law over the past century or so.

Unfortunately, the people in question are living outside of the protection of the law as well in many regards. This is especially so with regard to matters of insurance, estate law, tax law, and the like.

Not being a lawyer, I am not well versed in all of the details. But this is my immediate take on the situation, and I don’t think things would look much different in most states.

19

One possible legal issue: many counties (ours included, I believe, and I think you and I live in the same county) have rules about the number of unrelated people who may live in the same residence. This is to prevent things like illegal boardinghouses / houses full of noisy students.

Cite: http://www.fairfaxcounty.gov/consumer/tenant/tl_handbook.pdf

So right there, that household is in violation of the county law. Whether it would ever get prosecuted, I sincerely doubt, as presumably these people are good neighbors, take care of the place, don’t throw loud parties etc. The county has better things to do with its resources.

20

Funny the OP should mention Virgina. Its longtime tourist slogan, of course, is “Virginia is for lovers.” The story goes that there was a proposal a few years back to repeal the state’s adultery statute, but the legislature didn’t do so. Some joker then suggested the slogan be changed to “Virginia is for real good friends.”

An important case as to non-traditional families and the law: Moore v. City of East Cleveland - Wikipedia