K3 Insights

The Courts’ role is to interpret parliament’s legislation as it applies to particular cases brought before it. The courts may then fill any gaps in the legislation that arise as necessary, as long as that gap filling does not encroach on parliament’s legislative role.

A recent dispute concerning a multi-partner situation (referred to as a polyamorous relationship) has reached New Zealand’s Supreme Court.

The gap? Whether the Property Relationships Act 1976 (the PRA) applies to multi-partner relationships (i.e., relationships that involve more than two people).

The PRA currently applies to qualifying relationships which are referred to throughout the legislation in the context of coupledom. Marriages, civil unions and de facto relationships are defined in a way that indicates parliament considered those relationships to involve only two people. The Act also is clear that it includes same sex partners.

The question for the courts in Mead v Paul and Paul [2023] NZSC 70 became whether the Family Court has jurisdiction to apply the PRA to multi-partnered, or (in this situation) triangular relationships.

In Mead, L and B were married in 1993. They met F around 1999 and formed a triangular polyamorous relationship in 2002. Together, they lived in a house purchased in F’s name which became their family home. All three contributed to the relationship, finances were intertwined and there were non-exclusive, collective, and individual sexual relationships. L separated from F and B in November 2017 and F and B separated in early 2018. The duration of their relationship was 15 years.

The Family Court originally sought guidance from the High Court about whether there was jurisdiction to apply the PRA to multi partner or polyamorous relationships. The High Court ruled that it did not. On appeal, the Court of Appeal overturned that decision, finding that there was jurisdiction, primarily because qualifying relationships existed within the polyamorous relationship.

The Supreme Court dismissed the appeal with a 3:2 majority, upholding the Court of Appeal’s decision. The dissenting judgment raised concerns around whether the courts were stepping too far into Parliament’s domain.

The Court of Appeal considered two provisions in the PRA, sections 52A and 52B. The sections give nod to Parliament’s foresight into the complexity of human relationships, and that from time to time there may be two qualifying relationships existing at the same time. In which case, sections 52A and 52B provide a mechanism of sorts to enable division of the relationship property where there are competing claims. For example, A and B were married, but B also had a de facto relationship with C (whether contemporaneous or successive). In this scenario there may be two qualifying relationships.

Although the provisions consider B’s two relationships as either successive to a marriage/ de facto relationship or contemporaneous with the other relationship, the provisions are not explicit about whether it includes the scenario where C and A are also in a relationship, thereby creating a triangular relationship (as was the case in Mead).

As the Court of Appeal found, and the Supreme Court agreed, “it is not a necessary element of living together as a couple that the relationship be exclusive”, a person can therefore be in more than one de facto relationship at the same time.

Therefore, while the PRA does not apply outright to triangular or polyamorous relationships, it can apply to qualifying relationships as a subset of a polyamorous relationship.

We consider the PRA to be a purposive Act that should be interpreted in a way that fits with the changing societal and community values and practices. Although there are equitable remedies for those dividing property obtained during a triangular relationship, the remedies do not necessary provide for equal sharing like the PRA. What constitutes a “couple” or what a romantic relationship looks like, continues to evolve over time, and this is something legislators should consider in the future. The Court of Appeal and Supreme Court decisions in Mead are strong reflections of the community’s desire to ensure fair division applies to all relationships, no matter what they look like.

There may be concerns about how this case has applied in practice. We consider the best approach will be to have all three members of the relationship as parties to the proceedings or agreement and determine the division of property in equal shares, being thirds rather than halves.

We look forward with interest to see how this brave decision plays out.