Polyamorous relationships and the law in South Africa

We’ve all heard the saying “two’s a company, three’s a crowd.” And, while most people are happy having one significant other, others don’t find a relationship with three, four (or more) partners that crowded. Progressively, people around the word, and in South Africa are embracing polyamorous relationships.

Recently, a British therapist named Mary Crumpton made headlines in the UK by going public with her polyamorous relationship. Speaking to the Huffington Post, Crumpton said she had always been championing monogamy, until she encountered someone in a polyamorous relationship and decided to challenge her own beliefs and explore polyamory.

While she is legally married to one of her partners, she is also planning on ‘marrying’ another. “We can’t legally marry, but we are having a full wedding-style commitment ceremony” said Crumpton. The 44-year-old also pointed out the financial benefits of her situation: “Co-habiting with two of my partners makes things easier financially for us. So much so, that the three of us took the decision that I would reduce my paid work hours and do more unpaid voluntary work in our community.”

What is a polyamorous relationship?

The word ‘polyamory’ is derived from Greek and Latin, meaning love and several or many. It’s basically a practice of having intimate relationships with multiple partners. The partners desire intimate relationships that are not exclusive, and everyone involved accept and consent to this understanding.

It’s about having a committed, close relationship with more than one partner, and based on rules agreed to by all partners. Some have defined it as consensual, ethical, responsible, non-monogamy.

Polyamory differs from open relationships in that there aren’t usually casual sexual encounters outside of the core relationships, and from a polygamous relationship in that it isn’t one person marrying multiple spouses, like in customary marriages.

Can South Africans in polyamorous relationships marry each other?

As it stands, polyamorous relationships aren’t legally recognised by South African law. As Managing Director at LAW FOR ALL, Adv. Jackie Nagtegaal, points out: “It isn’t possible for polyamorous couples to marry. Civil Marriage wouldn’t be possible legally, and it wouldn’t be recognised as a customary marriage. Unfortunately, a civil union isn’t an option either as the law reserves it for monogamous partners.”

Looking elsewhere in the world, in 2017, three gay men in Colombia gained legal recognition as the first polyamorous family. “We wanted to validate our household… and our rights, because we had no solid legal basis establishing us as a family,” said Victor Hugo Prada, in a statement to Colombian media.

He said he and his two partners signed legal papers, establishing them as a family unit with inheritance rights.

How can polyamorous partners protect themselves legally in South Africa?

Each and every polyamorous relationship is unique, and so the legal consequences will depend on the specific set-up of the relationship. “Partners in polyamorous relationship acquire financial assets and liabilities that benefit and burden each other. Whether it is incurring debt or purchasing a home, for example, it could pose some legal conundrums should someone in the relationship decide to end the relationship or pass away. What’s more, if the partners decided to have children, custody could become an issue since there are technically more than two parents,” states Nagtegaal.

Nagtegaal suggests working closely with a family lawyer to come up with creative solutions such as cohabitation agreements (which protect the legal rights of people who live together without being married) to get as much legal stability and protection as possible.

Although legally cohabitants do not have the same rights as partners in a marriage or civil union, South African courts have, on occasion, come to the assistance of couples by deciding that an express or implied universal partnership exists between them.

A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. In these cases, where the relationship breaks down, the court could award a share of the assets acquired during the relationship to each party.

Proving a universal partnership exists can be tricky, and various requirements must be met. For instance, it must be proven that the point of the partnership was to make a profit, and all parties contributed. Furthermore, the partnership must have benefited all involved. Even if one can prove that a universal partnership exists, the court would also want to be satisfied that that all involved contributed to the joint venture, whether through their labour, skillset or financial contribution. And, of course, that the venture was conducted for profit and the benefit of the partners. And while universal partnership cases involving monogamous couples have been heard in front of South African courts, there has yet to be a case involving people in a polyamorous one.

For now, people in polyamorous relationships have to jump through proverbial hoops to get legal recognition and protection in some form. But as the world continues to evolve and more and more people embrace non-traditional relationships, perhaps it is only a matter of time before the South African legal systems follow suit.

The article first appeared on the Lawforall blog. For more information contact Law For All.