The polyamorous threat to nonmarriage

• Published date: 01 January 2023
• Author: Katharine K. Baker
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/fcre.12684

SPECIAL FEATURE

The polyamorous threat to nonmarriage

Katharine K. Baker

IIT Chicago-Kent College of Law, Chicago,

Illinois, USA

Correspondence

Katharine K. Baker, University Distinguished

Professor of Law, IIT Chicago-Kent College of

Law, Chicago, Illinois, USA.

Email: kbaker@kentlaw.iit.edu

Abstract

Some progressive U.S. Cities and several Canadian provinces

now provide mechanisms for polyamorous families to regis-

ter as such with state authorities. More than a million peo-

ple in the United States identify as polyamorous and many

more practice some form of ethical nonmonogamy. This

article suggests that the growing recognition of polyamory

poses a substantial threat to a simultaneous development in

family law: the call by scholars and the Uniform Law Com-

mission for courts to enforce a more implied contract,

implied partnership and equitable claims in the context of

non-marital conjugal cohabitation. Non-marital cohabitants

argue that courts can infer marital-type commitments to

share property from the fact of conjugal cohabitation. They

argue that their nonmarriage should entitle them to the

kinds of relief afforded to divorcing couples. But po lyamo-

rous conjugal cohabitation involves very different norms

and commitments to reliance, partnership and transpar-

ency than does traditional marriage. Marital-type relief

maps awkwardly, if at all, onto the reality of most poly-

amorous relationships. By bringing into relief that which

we cannot necessarily assume about conjugal cohabita-

tion, the recognition of polyamory questions what many

proponents of more legal protection of nonmarital cou-

ples ask courts to assume about conjugal cohabitation,

namely that it gives rise to reasonable reliance on a status

quo and an intent to share property. Moreover, by

I would like to thank all of the wonderful participants at the 2021 Nonmarriage Roundtable for their helpful comments and criticisms. Special thanks to

Kaipo Matsumura for his excellent insights on this piece.

DOI: 10.1111/fcre.12684

© 2022 Association of Family and Conciliation Courts.

Family Court Rev. 2023;61:81–101. wileyonlinelibrary.com/journal/fcre 81

providing a means for polyamorous households to regis-

ter their relationships, polyamorous registration normal-

izes the idea of non-marital relationship registration. The

more normal and expected it is for people who want

rights as some form of family to register their familial

intent with the state, the harder it is for those who have

not so registered to argue that the state must treat them

as some sort of family.

KEYWORDS

cohabitation, common law marriage, implied contracts, joint

property, polyamory

Key points for the family court community

•Many conjugal cohabitants operate according to different norms

than those the law associates with marriage.

•Implied contract, implied partnership and equitable remedies for

non-marital cohabitants all require courts to apply marital

norms.

•Polyamorous relationships highlight the diversity of norms that

can govern in non-marital relationships

INTRODUCTION

In the last year, the cities of Somerville and Cambridge, Massachusetts joined several Canadian provinces in

providing mechanisms for polyamorous groups to register as families with state authorities.

1

As one might

expect, conservatives assailed the move as just another step towards “the collapse [of marriage] altog ether.”

2

This article argues that formal recognition of polyamorist relationships poses as much threat to contemporary

efforts

3

to recognize certain forms of nonmarriage and nonmarital cohabitation as it does to traditional under-

standings of marriage. Without doubt, polyamory disrupts what has come to be known as “marital supremacy”

4

by offering an alternative family form, one that does not involve only two (purportedly) monogamous people

1

See Elizabeth Nolan Brown, Cambridge Will Recognize Polyamorous Partnerships and Other Domestic Arrangements With More Than 2 Adults,REASON(Mar.

10, 2021, 9:30 AM), https://reason.com/2021/03/10/cambridge-will-recognize-polyamorous-partnerships-and-other-domestic-arrangements-with-more-

than-2-adults/. Cambridge and Somerville moved legislatively, allowing more than 2 peopleto register as domestic partners; See Zean Olijnyk, B.C Judge

Rules That a Woman In a Polyamorous Family Relationship Will be Named asSecond Mother,C

ANADIAN LAWYER (May 4, 2021), https://www.

canadianlawyermag.com/practice-areas/family/bc-judge-rules-that-a-woman-in-polyamorous-family-relationship-be-named-as-second-mother-to-child/

355641. Canada's recognition has been more judicial and in the context of parenthood. (Newfoundland and Labrador); Michael McDonald, Three Adults in

Polyamorous Relationship Declared Legal Parents of Child,T

ORONTO STAR (June 14, 2018), https://www.thestar.com/news/canada/2018/06/14/three-adults-

in-polyamorous-relationship-declared-legal-parents-of-child.html. (British Columbia); See also John-Paul Boyd, Polyamory in Canada: Research on an

Emerging Family Structure,V

ANIER (Apr. 11, 2017), https://vanierinstitute.ca/polyamory-in-canada-research-on-an-emerging-family-structure/;See

ADJUDICATING COMPETING CLAIMS OF PARENTAGE § 613 (UNIF.PARENTAGE ACT, Draft 2017). The Canadian recognition is notably different than the Uniform

Parentage Act's potential recognition of more than two parents. The UPA suggests that recognizing more than two parents may be appropriate if failing to

do so would cause harm to the child. The Canadian courts recognized three parents because of the adults' relationship to each other, not just the child.

2

See Second Massachusetts City to Recognize Polyamorous Relationships,CATH.NEWSAGENCY (Mar. 20, 2021, 6:01 AM), https://www.catholicnewsagency.

com/news/246980/second-massachusetts-city-to-recognize-polyamorous-relationships.

3

See infra Part II. The contemporary efforts analyzed in this essay are claims for implicit contract and/or partnership and the pursuit of equitable remedies

in the context of conjugal cohabitation.

4

Serena Mayeri, Marital Supremacy and the Constitution of the Nonmarital Family, 103 CALIF. L. REV. 1277 (2015).

82 FAMILY COURT REVIEW