Functional recognition and polyamory: glitters and hard truths in the O’Neill judgment

ABSTRACT

In 2022, a New York civil court concluded that a polyamorous partner should not be automatically excluded from noneviction protection (O’Neill). The decision was hailed as particularly groundbreaking and a ‘game changer’. On the other side of the globe, the New Zealand Supreme Court concluded that polyamorous unions could be entitled to the same property-sharing regime as couples. Upon closer examination, the two decisions use function-based modes of recognition to confer similar protections upon the polyamorous union. However, this paper will illustrate some of the limitations inherent in this approach. At present, functional recognition exhibits a continued attachment to the traditional marital family; this aspect, combined with the unique complexity of polyamorous arrangements, renders this route to legal recognition potentially inappropriate. The decisions examined either fail to understand the nature of the arrangement or choose to distort it in order to make polyamory legally intelligible. Both decisions are emblematic of a broader difficulty of functional recognition to provide answers to the legal demands of this type of relationship.

KEYWORDS:

• Polyamory
• same-sex couples
• eviction
• Braschi
• functional recognition
• civil unions

Acknowledgments

Assistant Professor, NOVA School of Law, Lisbon. For providing thoughtful comments or leads at various stages of this Article, I am grateful to Mary Ann Case, Laura Kessler, Kaiponanea T. Matsumura, Arnau Nonell I Rodriguez, Leehee Rothschild, Edward Stein and the two editors of the special issue Alice Margaria and Dafni Lima. I also benefitted from substantial feedback at the “18th World Conference (Golden Jubilee Conference) of the ISFL Rethinking Law’s Families & Family Law?”, held at the University of Antwerp and at the Fifth Annual Nonmarriage Roundtable, held at Rutgers Law School, Newark. I am finally grateful to Maria Ana Lourenço and Maria Matilde Carreira for their excellent technical editing and research assistance, and the CEDIS–Centre for Research on Law and Society at NOVA School of Law and FCT- Fundação para a Ciência e a Tecnologia for their generous support of this research.

Disclosure statement

No potential conflict of interest was reported by the author.

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1. The main distinction can be inferred by the different meaning of the two key words ‘argument’ and ‘recognition’: ‘argument’ intuitively refers to a claim, a mode of reasoning, while recognition to a legal-regulatory model that leads to the recognition of a relationship. A functional family claim is often raised in the context of functional recognition – but it can be raised elsewhere, for example, to argue that the legislator should expand registration laws to encompass a larger set of families since they function in the same way as legally recognised families.