Times change and so do relationships.
That is why in recent times we hear more and more often about ‘new’ models, such as polyamory. Although, in all probability, polyamorous relationships have existed all our lives, it is only recently that we have begun to ask ourselves whether they fit into the law and whether the law should adapt to their existence. After all, the objective of any rule should be to be useful to society, and we cannot ignore the fact that stable relationships (in which there are legal repercussions, rights and duties) formed by more than two people have existed, exist, and will continue to exist. At present, are polyamorous relationships regulated in Spain?
What happens in the specific case of filiation and custody of minors?
Modern couples and polyamory: Can polyamorous relationships be regulated in Spain?
When we speak of polyamory we refer, according to the RAE, to a “mode of loving or sexual relationship of a certain duration that is maintained between more than two people with the consent of all of them.” Reality shows us that this type of bond can have a character just as stable (or unstable) as the one we find in traditional couples.
As of today, there is nothing to indicate that a polyamorous relationship should have a worse future than a regular couple.
Nor would it be accurate to say that in a polyamorous relationship more conflicts may arise than in another case: in fact, it would make sense to think that those who opt for this model of union have better tools when it comes to managing any possible bumps in the road.
What is true is that the existence of polyamory, from a legal point of view, complicates things for all parties involved, including lawyers. After all, the simple fact that a greater number of people are part of the relationship causes a greater number of crossed rights and duties to be generated. In practice, it is a fact that polyamory is not legally regulated in Spain, although there are small legal windows that can serve to delimit rights and duties in different aspects.
It should be clarified that the fact that polyamory is not regulated does not mean that it is illegal: simply, our rules are not adapted to its existence, so that this type of union is not legally protected or recognized.
In addition, despite what the laws say, the parties can reach agreements to regulate their cohabitation and potential breakup.
For this, the help of a lawyer is very convenient.
Polyamorous relationships and child custody and guardianship
Perhaps the point that generates more debate (and one of the most interesting from a legal point of view) is related to the custody and guardianship of children.
That is why we focus on it in this article.
In principle, our legal system only allows the existence of two parents, based on a biological perspective that, in light of the current situation, should perhaps be reviewed.
Fortunately (and necessarily for our social advancement), we have made progress in aspects such as filiation in case of assisted reproduction and in terms of the rights of same-sex couples in reproductive matters, being able to access adoption or assisted reproduction under equal conditions.
There is also a registry exit and full recognition of rights for children born as a result of a surrogacy procedure. surrogacyThe idea is that the child should not be left unprotected because his or her birth was the result of a practice that is illegal in Spain and, for many, ethically and morally reprehensible.
However, the reality is that, in the current situation, it would be impossible for three or more people to have custody of a minor, even if all of them have lived with the child for the same amount of time and have participated to the same extent in his or her upbringing. Only two people can be registered as parents of the child, although it would be possible to obtain a more or less extensive right of visitation for the rest of the members of the relationship, always thinking of the welfare of the child.
In practice, we already see how relevant figures for the child, such as grandparents, can obtain visitation rights without difficulty.
In addition, of course, we are talking about the limits of the law: the parties involved could freely reach private agreements that allow a harmonious and equitable enjoyment in favor of the child for each member of the union, regardless of a possible rupture or split within the relationship.
Another important aspect has to do with the possibility of appointing a guardian to one of the members of the relationship despite the fact that he/she is not registered as responsible for his/her guardianship and custody.
It should be remembered that, in the same way that we can appoint a grandparent or a friend as guardian of the child in case of death of the couple, we could do the same with a person integrated in a polyamorous relationship. In any case, it is probably much more useful for the parties to undergo family mediation procedures. family mediation in case of conflict in the event of a total or partial breakdown of the union.
We must not lose sight of the fact that, being a relatively ‘unknown’ type of relationship in our country, leaving the decision-making process in the hands of a judge means a loss of control for all parties.
In case of finding a professional with little social knowledge in the matter, the process could become clogged, become more expensive and not give the expected result.
If you need help from a family lawyer to shape a polyamorous union or if you find yourself in a situation of conflict before a breakup, please contact our team, please contact our team of family lawyers in Barcelona..
