On Tuesday 20 June, the Supreme Court decided a landmark statutory relationship property case — the first of its kind in the Commonwealth. It concerned whether the Family Court has jurisdiction to determine the relationship property rights of parties in a polyamorous relationship under the Property (Relationships) Act 1976 (“PRA”).

The Facts 

Lilach Paul and Brett Paul married in February 1993. Sometime between 1999 or 2000, Fiona Mead met Lilach and Brett, and in 2002 together they decided to form a polyamorous relationship. Shortly after their polyamorous relationship began, Fiona bought a four-hectare farm in Kumeu in November 2002, having paid the deposit of $40,000. The farm was registered in her name. This is the property in dispute and in 2017, it had a QV of $2,175,000. 

In November 2017, Lilach separated from Fiona and Brett. In early 2018, Fiona and Brett subsequently separated. The property remains in Fiona’s name, and she remains a resident. 

The Nature of the Relationship

The three lived together for 15 years on the property. It was understood that while the three parties were the main relationship, there were other secondary relationships between each party and other individuals. These secondary relationships involved at different times: one of the main parties, more than one of the main parties or they formed a secondary polyamorous relationship. At least one of these secondary relationships lasted three years. Throughout the 15 years, the three remained together as the main unit.

During this time, the parties cohabited the property together, each contributing in some way to household activities and general maintenance of the property. Fiona practised as a veterinarian, Brett engaged in a paintball business on-site and Lilach was an artist. It is disputed between the parties the extent of each contribution.

Procedural History

Family Court

In 2019, Lilach brought an application for relationship property orders in the Family Court and claimed a one-third share in the property, which she claimed was the family home under the PRA. Brett subsequently filed his own application similarly claiming a one-third share. They stated that there were three qualifying relationships under the PRA (two de facto couples and one married couple) and that sections 52A and 52B of the PRA gave the Family Court jurisdiction to hear contemporaneous relationship claims. Neither Brett nor Lilach made a claim against each other.

Fiona protested the jurisdiction of the claim stating the parties do not have qualifying relationships under the PRA. There was no case law existing on the matter of polyamorous relationships, so subsequently the case was relayed up to the High Court by way of the following question of law: [1]

Does the Family Court have jurisdiction to determine the property rights of three persons in a contemporaneous polyamorous relationship under the Property (Relationships) Act 1976?

High Court

In March 2020, Hinton J released her judgment [2].  Her view was that the PRA does not apply to a polyamorous relationship, and it would be unworkable to stretch the legislation to fit this case [3].

Referencing the Law Commission’s review of the PRA [4], and their scepticism of how a complex relationship such as a polyamorous unit would be captured under the language of the PRA, Her Honour gave reference to Parliament premising the PRA on the notion of coupledom, and that reform in this case is a matter for Parliament rather than the judiciary [5].  It was mentioned that while the PRA is not applicable, equity may be of assistance to the involved parties. 

In terms of sections 52A and 52B, having found no reported case law where these provisions were applied, Her
Honour ruminated that this was perhaps due to the second relationship in the “vee” structure under these provisions often failing to become a qualifying relationship under the PRA. Furthermore, the plain language of these sections does not suggest they apply to three contemporaneous sections. The premise of the Act is coupledom: statutory interpretation must have regard to the text and scheme of the Act in question. 

Hinton J restated and answered the question of law as follows [6]: 

The Family Court does not have jurisdiction to determine the property rights of three persons in a polyamorous relationship under the Property (Relationships) Act 1976, nor does it have jurisdiction to do so by dividing the polyamorous relationship into dyadic parts.

Lilach and Brett appealed to the Court of Appeal. 

Court of Appeal

In a unanimous judgment [7] dated December 2021, the appeal was allowed. The Court found that it is possible for both partners in a married couple to have a qualifying contemporaneous de facto relationship with another person, even if that is the same third person; therefore, creating three distinct qualifying relationships. The Court also held that Lilach and Brett continued to live together as a married couple under 2A(2) PRA when they began their relationship with Fiona. It was stated that while the PRA is premised on coupledom [8], it is not exclusive coupledom.  As per section 6 of the New Zealand Bill of Rights Act 1990 (“NZBORA”), this approach was held to be consistent with the NZBORA as it is an interpretation of s 2D of the PRA that does not distinguish based on family status (s 19(1) NZBORA and s 21(1)(1)(iii) Human Rights Act 1993) [9]. 

The Court agreed with the High Court that polyamorous relationships were not a qualifying relationship under the PRA but found that there can be multiple qualifying relationships between couples within a broader multi-partner relationship [10]. 

The Court of Appeal answered the question of law as follows [11]: 

The Family Court has jurisdiction under the PRA to determine claims to property as between two persons who were married, in a civil union, or in a de facto relationship, and also in a polyamorous relationship. That jurisdiction extends to determining claims among three people in a polyamorous relationship, where each partner in that polyamorous relationship is either married to, in a civil union with, or in a de facto relationship with, each of the other partners in that polyamorous relationship.

Supreme Court

The Supreme Court dismissed the appeal. In its judgment [12] dated 20 June 2023, the majority (made up of O’Regan, Williams and Kós JJ) agreed with the Court of Appeal. The reasoning is broken down as follows:

1. the polyamorous relationship is ‘triangular’ and so can be divided into three qualifying couples under the PRA [13];  
2. the contemporaneous sections of ss 52A and 52B were seen as Parliament’s contemplation towards multi-qualifying relationships at the time of enactment; a polyamorous relationship is approached in the same way as a “vee” structured relationship [14]. That there was a third person (hence making it a triangular relationship) did not create a material difference towards application;
3. unexplored complexities in the PRA and other legislation are not substantial to imply a contrary, excluding intention on Parliament’s part [15];  and
4.  as the PRA encompasses this relationship structure, the NZBORA argument is unnecessary to debate [16]. 

The minority (Glazebook and Ellen France JJ) were in dissent. They concurred that the Family Court had no jurisdiction over the parties, with the view that:

1. it is artificial to recharacterise a relationship involving three persons into two or more separate couples, given how the parties viewed their relationship and lived as a unit [17];  
2. parliament is better placed to address the extension of the PRA to polyamorous relationships [18]; 
3. the NZBORA does not extend the PRA’s scope to cover the parties’ relationship [19]; and
4. there is concern about the workability of similar multi-partner relationships under separate statutes and equity [20].  

As the appeal solely focused on a jurisdictional issue and whether polyamorous relationships came within the ambit of the PRA, the parties now have the opportunity to revert back to the Family Court for relationship property orders.

Where to from here?

This judgment will have wide implications for the PRA and potential effects on other statutes. People who are in multi-partnered relationships or about to enter one, will need to evaluate their asset pool and seek legal advice if there are any concerns surrounding asset protection. 

Footnotes 
[1] Paul v Mead [2020] NZHC 666, [2020] NZFLR 1042, at [2].
[2] Paul, above n 1.
[3] At [58].
[4] Law Commission Review of the Property Relationships Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC, R143, 2019).
[5] Paul, above n 1, at [56].
[6] At [59].
[7] Paul v Mead [2021] NZCA 649, [2022] 2 NZLR 413.
[8] At [71].
[9] At [79].
[10] At [72].
[11] At [101].
[12] Mead v Paul [2023] NZSC 70.
[13] At [83].
[14] At [55] and [88]. 
[15] At [88].
[16] At [85].
[17] At [95].
[18] At [107].
[19] At [98].
[20] At [100] – [105].

This article was authored by Alice Lemmon, a solicitor in our Construction and Infrastructure team.