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South African Law and Multiple Romantic Partners in a Polyamorous Relationship

Increasingly, people opt for non-traditional relationships, but is there space for multiple lovers to have their polyamorous relationship legally recognised and protected in South Africa?

We’ve all heard the saying “two’s a company, three’s a crowd.” And, while most people are content with having one significant other, others don’t find a relationship with three, four (or more) partners that crowded. Progressively, people around the world, and in South Africa, are embracing polyamorous relationships.
Alice*, a 35-year-old Cape Town-based accountant, hadn’t even heard of polyamory until she swiped right on Tinder and met John*, an anaesthetist, in 2016. They went on a date, and he was upfront from the get-go about his views on monogamy and relationships.
Alice had always been monogamous, but she felt a connection with John, and his openness, honesty and “world view” made her curious.
A couple of dates in, she met his girlfriend (Linda*), and while it was odd at first, they became good friends quickly. She discovered that her own preconceived ideas of polyamorous relationships were wrong, and these relationships were based on love and trust as opposed to just lust or sex.
Initially, Alice’s family weren’t as open-minded, but they have since accepted her decision. She soon found a solid support system in John and his girlfriend. At the start of 2017 they moved into a house they bought together, and now share all household finances, which relieves individual strain and pressure. They see themselves as a family unit, but have no plans to get married or have kids.
What exactly is polyamory?
The word ‘polyamory’ is derived from Greek and Latin, meaning love and several or many. A lot of South Africans haven’t heard the term before, but it’s basically a practice of having intimate relationships with multiple partners. The partners desire intimate relationships that are not exclusive, and all parties accept and consent to this understanding.
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It’s about having a committed, close relationship with more than one partner, and based on rules agreed to by everyone involved. Some have defined it as consensual, ethical, responsible, non-monogamy.
Isn’t it just an open relationship, or the same as polygamy?
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 we see in South African customary marriages.
Can South Africans in polyamorous relationships marry each other?
As it stands, polyamory is a concept that isn’t yet legally accepted 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 says it reserved 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, which means the potential legal consequences are different in each relationship. “Partners in polyamorous relationship acquire financial assets and liabilities that benefit and burden each other. Whether it is incurring debt or purchasing a car, for example, it could pose legal conundrums should someone in the relationship decide to leave 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.  
For example, in Alice’s case, Nagtegaal suggests working closely with a family lawyer to come up with creative solutions specific to the setup. This could include co-habitation agreements 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.
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 awards a share of the assets acquired during the relationship to each party. 
Proving a universal partnership can be tricky, and certain boxes must be ticked, so to speak.  For instance, it must be proven that the point of the partnership is to make a profit of sorts, to which all parties must contribute. Furthermore, the partnership must benefit all involved.
Even if a court recognises that a universal partnership existed, it must be proved that the partners 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.
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 system follows suit. 
*Names have been changed to protect identities.
The article first appeared on the Lawforall blog
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