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

Abstract

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.