By Flavian Mèche
As a Swiss national, I am often confronted to my audience’s surprise when I mention that Switzerland is a conservative country. If the concepts of human rights and welfare state may be some of the factors shaping the perception of Switzerland’s progressivity in the collective imagination, we are far from being a role model. Yet, I usually feel the strange patriotic need to defend my country, by giving the disillusioned justification: “It is true that change happens slowly, but when it does it is here for long”. And, with the acceptance of the 2021 referendum on same-sex marriage, change finally happened.
Yet, if the outcome of the 2021 referendum challenges the heterocentric concept of family – the unquestioned assumption that all couples are composed of a woman and a man – the concept of marriage is not embraced by the whole LGBTQ+ community, as it can also be seen as a moral policing tool for inscribing queer familial arrangements in a monogamous heteronormative ideology.
In fact, the modification of the Civil Code fails at including other non-conformist familial arrangement, such as polyamorous partnerships, queer bonds, or polyqueer arrangements. People in domestic multiple-partnerships are excluded from accessing civil union, because to marry one of their partners, they must renounce marrying their other(s). In deciding to only authorise the marriage of two people, the legislator remains profoundly normative, as it imposes a monocentric vision of civil unions – assuming that everyone is monogamous and that all romantic relationships are at root dyadic – hence preventing the referendum to live up to its title: Mariage pour toutes et tous (Marriage for all). I argue that today multi-partnerships families are as valid a model as monogamous marriages, hence they should benefit from the same rights.
Evolution of family and marriage
The normative concept of family often lies at the core of most societies’ values, and Switzerland is no exception. But for as much as defenders of tradition believe that the nuclear family is an immutable object to be protected from subversion, one could argue that the very existence of a “traditional” family, through (patriarchal) marriage, is one among numerous changes that the concept of nuclear family has undergone. In fact, the traditional and hegemonic vision of what families are is constantly evolving, and the concept of a single-family-home is already outdated. This shift towards multiple-parenting family models can be witnessed in stepfamilies, or medically assisted reproduction through surrogate or sperm donations – especially as Switzerland’s law protects the children’s right to know their biological father. Similarly, the idea of marriage does not conform either to what it did only a few decades ago, be it by the legalisation of interracial marriages in some countries or, more recently, same-sex marriage in Switzerland.
Polyamory: philosophy and practice
Against this backdrop, polyamory – a form of consensual non-monogamy – is increasingly recognised socially as a non-conformist way to envision relationships. In polyamorous arrangements both men and women openly engage in “multiple romantic, sexual, and/or affective partners with a focus on honesty and full disclosure of the network of relationships to all who are affected by them” (Sheff, 2011, 488). This non-discriminative access to multiple partners resonates with feminist and queer political philosophy. First, it resists the hegemonic concept of monogamy, seen as a tool for policing women’s sexuality, through the norms against infidelity disproportionately binding on women. Second it differs from the often otheringly perceived polygyny – commonly miscoined polygamy – the marital condition in which only the husband is allowed multiple wives.
However, like same-sex relationships before them, polyamorous domestic arrangements face not only moral stigmatisation – due to their confusion with polygyny – but are excluded from equally accessing legal rights and protections for their multi-partnered household, guaranteed by mononormative institutions – such as marriage, registered partnerships, cohabitation and dyadic definitions of the family.
As we now know through a rising number of studies on parenting, and as it was acknowledged by the Federal Council in its 2015 report on the Modernisation of Family Law, and during the campaign for Same-Sex Marriage Act, familial configuration does not have a significant impact on children’s development – affection, attention and mental and physical health care however do. Through qualitative interviews with children between 9-12 years old and teenagers, Sheff (2014) confirms the idea that poly-parenting provides considerably more attention to children’s development, through the complementarity of each one’s strength and energy. Furthermore, compared to divorce in monogamous families, separations in polyamorous families rarely leaves children with a single parent., There is, hence, no reason why domestic multi-partners arrangements should not benefit from the same rights and protections as bi-parenting families.
If the legal recognition of domestic multiple-partnerships arrangements is getting attention in the USA, it seemed to remain a marginalised and invisible subject in Switzerland, until now. The topic has been brought very recently in Swiss public debate, testifying of a need to question the current legislation on family rights. Polyamorous familial arrangements are facing various discriminatory issues, the main ones being related to childcare, health care/insurance, taxation, and immigration, but their recognition is likely to “confront the state’s interest in conserving the resources required by the extension of marital rights”. (Aviram and Leachman, 2015, 38).
Beyond the presumption of monogamy
Some issues that polyamorous families could face – such as child custody, inheritance, insurance or hospital visits – may be solved through private law and domestic contracts. However these legal mechanisms often do not guarantee the same rights as civil unions do. Polyamorous families may then not benefit the same advantages, especially in regards of taxation or immigration – be it for family reunion or facilitated naturalisation).
Whether a couple is married or not has some positive and some negative tax consequences, but it is unclear whether equal marital rights for multi-partnerships would provide a tax advantage. However, an alternative to this debate could be to eliminate the marriage option from tax forms. The actual model is based on a patriarchal conception of single(male)-provider-families. There is a shift in this conception with an increasing number of dual-earner families, that are disadvantaged by tax forms joint-filling, which is even harsher for low-income taxpayers.
It is, however, in immigration law that polyamorous families will face the biggest difficulties. In fact, according to the State Secretariat for Migration (SEM) provisions, the rights for facilitated naturalisation or family reunion are based on a strict monogamous definition of family, and only available for married couples. During covid-19, the SEM expanded to unmarried couple the exemption from entry restrictions, but the monocentric conception of a romantic relation is preventing polyamorous individuals to be reunited with their loved ones.
The criteria of stability and observability of a relationship is prevalent in Swiss immigration rights. For example, regarding facilitated naturalisation, SEM has the right to open a cancellation procedure, based on some indicators of instability. However, some of these existing indicators, not only are not suitable anymore to the evolution of our society, such as “living in separate domiciles”, but also end up being discriminatory against individuals based on sexuality practices, for example the existence of “extra-marital sex”, the “living of a double life”, and if “engaging in sex work” (supply or demand).
Yet, in other current regulation such as SEM’s Manual for Asylum and Return, family asylum may be considered even in case of non-exclusivity, as the concept of cohabitation is considered as “en principe exclusif (in principle exclusive)”. Moreover, in its 2015 report on the Modernisation of Family Law, and its 2022 report on cohabitation, the Federal Council recognise that living in the same domicile or the presumption of fidelity should not be considered anymore as determinant factors of marriage or community of life. Let’s remember here that adultery is not a crime anymore since 1989, and that it was struck out of the possible reasons for divorce in 2000 – but integrated norms take time to disappear.
Today, exclusive sexual relations and shared domicile are not determinant indicators of long-term commitment, nor stability of a relationship. I believe that the current legislation should be amended, and that these outdated indicators of instability be removed. Finally, there is then no reason why the interviews and investigation aiming to assess the stability and the long-term vision of a relationship could not be applied to polyamorous households. Therefore, in case of a future extension of marital rights to multiple-partnershipfamilies the criteria of stability and observability would be compatible with their relationship-model, giving them access to family reunion and facilitated naturalisation.
Polyamorous partnerships are a newly acknowledged reality, as well as a up and coming subject in academic and political debates. As it offers an alternative to the hegemonic romanticised patriarchal family, it challenges the compulsory monogamy that Family or Morality Laws still impose on citizens. Polyamory is, however, not about abolishing marriage. It believes in an individual’s right to self-determinate their relationships model – be it monogamous or non-monogamous – and to not be excluded from equal rights and duties in front of the Law because of the choice. I believe that consensual, multiparty partnerships among adults should enjoy the same legal recognition, privileges and obligations as two-party marriages. If not through the institution of marriage, I have faith that other mechanisms can be developed to provide today’s society with the flexibility needed to account for the diversity of familial configurations, thus allowing me not only to defend my country, but to be proud of its commitment to equality.
Polyamory Is Deviant – But Not for the Reasons You May Think – Sheff (2020)
Le débat – Abolir le mariage civil, autoriser la polygamie? – RTS Forum (2021)