Background

The Property Relationships Act 1976 (PRA) is a code that governs how the property of couples who are married, in a civil union or in a de facto relationship is to be divided up when they separate or one of them dies.⁽¹⁾ It provides a regime for how the relationship and separate property of the parties is to be treated and divided.

To qualify for an application under the PRA, there must first be a qualifying relationship. This is either a "marriage", "civil union" or a "de facto relationship". Each of these relationship terms are defined in the PRA and those definitions all refer to "2 persons" throughout.⁽²⁾  The principles of the PRA also refer to the different types of relationships as being "partnerships".⁽³⁾ There is, therefore, an underlying premise that the PRA is based on "coupledom" as this aligns with traditional family structure and the way in which contributions are recognised in that structure.

However, the courts have recently had to determine whether the PRA can be applied to relationships between three people.⁽⁴⁾ The decisions have demonstrated that there is contention as to whether the relationship should be framed as one polyamorous relationship or three separate couple relationships.

Facts

The first and second respondents (Lilach and Brett Paul) married in 1993. The appellant (Fiona Mead) met Brett and Lilach in 1999 or 2000. They then went on to form a triangular polyamorous relationship in 2002.

It is undisputed in the evidence that the three of them lived together for 15 years in a property that was purchased shortly after the polyamorous relationship began. Fiona paid the deposit on the property. The three of them slept together in the same bed for most of the relationship up until a year before the separation. They all contributed to the household and to activities that occurred on the property.

Lilach separated from Brett and Fiona in late 2017. Fiona and Brett then separated in early 2018. The property had increased from $533,000 to $2,175,000 in value between 2002 and 2018. Fiona would be able to access the remedies in the PRA if she could show that there was a qualifying relationship.

High Court

In the High Court, it was held that three people living together in a polyamorous relationship are not living together "as a couple". The Court focused on the fact that, while the PRA does allow for more than one de facto relationship to be occurring simultaneously, this was not applicable to the parties before the Court. They were not living together as "couples", but rather were in a polyamorous relationship.⁽⁵⁾ As a result, it held that the remedies in the PRA were not available. The Court noted, however, that the position would be different if more than two people were cohabiting, but could be described as living together as distinct couples.⁽⁶⁾

Court of Appeal

The Court of Appeal reversed the High Court decision. It held that the relationship could be a qualifying relationship under the PRA. The Court agreed that a polyamorous relationship could not qualify under the PRA,⁽⁷⁾ but framed the analysis as examining on multiple relationships. It referred to sections 52A and 52B⁽⁸⁾ which contemplated multiple, contemporaneous relationships (V arrangements) and stated that exclusivity is not a necessary element. Thus a person can be in more than one de facto relationship at the same time.⁽⁹⁾

The Court contrasted Fiona and Brett's relationship before and after Lilach left in late 2017. If Fiona and Brett met the test for a de facto relationship once Lilach left, then it would be artificial to treat it as only having started at that point.⁽¹⁰⁾

Supreme Court

The Supreme Court decision was split three to two. The majority found that there were two essential issues:

• Can a triangular relationship itself can be a qualifying relationship?
• Can a triangular relationship be subdivided into two or more qualifying relationships?

They were quick to answer the first, saying that "three people cannot constitute a relationship between 2 persons who live together as a couple."⁽¹¹⁾

In addressing the second issue, they posed five sub questions:(12)

• Must a de facto relationship be exclusive to qualify?
• What did Parliament mean by "living together as a couple"?
• Can a V arrangement with no mutual cohabitation be subdivided into two qualifying relationships?
• Can a V arrangement with mutual cohabitation be subdivided into two qualifying relationships?
• Can a triangular relationship be subdivided into three qualifying relationships?

The Court concluded that:

• exclusivity was not required;
• "living together as a couple" need not be at the exclusion of others; and
• the focus should be whether each of the relationships met the definition for a qualifying relationship in section 2D.(13)

Majority

The majority went on to find that a V arrangement can be subdivided into two qualifying relationships, regardless of whether they are cohabiting or not.⁽¹⁴⁾ The issue then became whether having three people in a sexual relationship made any difference. They held that logically, if the PRA allowed person A to be in two qualifying relationships with persons B and C and, theoretically, person B could be in a relationship with person D, and person C with person E what would be the difference if persons B and C were in a relationship with each other?⁽¹⁵⁾ Therefore, they held that there was jurisdiction for the Family Court to hear the PRA claim.

Minority

The minority agreed with the High Court and held that the relationship was not a qualifying relationship under the PRA. While it acknowledged that more than one qualifying relationship can occur simultaneously, it would be ignoring the reality of the situation in this case to divide the parties up into three separate relationships.⁽¹⁶⁾

They also had concerns about the practical implications of the case such as how "partner" or "couple" could be defined in other statutes⁽¹⁷⁾ and how it would work in cases where there are multiple items of property to divide.⁽¹⁸⁾

Comment

None of the courts disputed the fact that the PRA is premised on coupledom. It was held that the only way courts might be able to facilitate access to PRA remedies for relationships premised on something other than coupledom was by analysing whether the relationships could be divided into qualifying couples. The question of any other avenues to PRA remedies was held to be a matter for Parliament to address.

While on a strict interpretation of the PRA, the approach taken by the Court of Appeal and Supreme Court is contemplated, this required the artificial reframing of the parties' polyamorous relationship into three separate couple relationships. This is inconsistent with the view of all courts that, such relationships are not actually allowed for under the PRA. There is potential for the approach to invite extreme complexity in future cases.

Endnotes

⁽¹⁾ Property Relationships Act 1976, section 1C(1).
⁽²⁾ Property Relationships Act 1976, section 2D on de facto relationships.
⁽³⁾ Property Relationships Act 1976, section 1N(b).
⁽⁴⁾ Paul v Mead [2020] NZHC 666, Paul v Mead [2021] NZCA 649 and Mead v Paul [2023] NZSC 70.
⁽⁵⁾ Paul v Mead [2020] NZHC 666 at [31].
⁽⁶⁾ At [60].
⁽⁷⁾ Paul v Mead [2021] NZCA 649 at [58].
⁽⁸⁾ [70].
⁽⁹⁾ At [71].
⁽¹⁰⁾ At [75].
⁽¹¹⁾ Mead v Paul [2023] NZSC 70 at [49].
⁽¹²⁾ At [52].
⁽¹³⁾ At [65].
⁽¹⁴⁾ At [72].
⁽¹⁵⁾ At [80].
⁽¹⁶⁾ At [95].
⁽¹⁷⁾ At [101].
⁽¹⁸⁾ At [103].