The recent High Court decision of Paul v Mead is the first case to consider whether the Court has jurisdiction to determine the division of property between three people in a polyamorous relationship under the Property Relationship Act 1976 (the Act).
Polyamorous relationships are those that involve multiple partners who have an intimate relationship with each other. In this case Justice Hinton found that while there were no practical reasons why the Act could not be applied to polyamorous relationships, the Act as drafted was clearly intended to apply to two person relationships. It was considered that the Court would be exceeding their mandate by extending the equal sharing regime of the Act to encompass relationships of this nature.
While this decision could be seen as a judicial reluctance to legally recognise the continual diversification of relationships in New Zealand it does leave the door ajar (albeit tentatively) for future cases to adopt a more socially liberal perspective.
Can three people be in a de facto relationship with each other?
L and B (the claimants) were married in 1993. In 2002 they formed a polyamorous relationship with F and shortly after moved in to her four-hectare property. The three parties lived together for 15 years at the property before separating. In 2019, L and B sought a declaration that the parties were in a qualifying relationship under the Act and orders determining the parties’ shares in the relationship property (F’s house).
While not directly argued by L and B, fthe first issue considered was whether polyamorous relationships could be categorised as de facto under 2C and 2D of the Act. Section 2D of the Act lists the various factors that the Court is to consider when deciding whether the persons lived together as a couple. It was found that despite clear evidence that the parties exhibited many hallmarks of a qualifying relationship (mutual commitment, duration of the relationship etc.) it would be logically inconsistent to say that more than two people could “live together as a couple”.
Separate Concurrent Claims
With this in mind, L and B adopted a more nuanced approach and attempted to “deconstruct” the polyamorous relationship into three separate qualifying relationships:
a) B and L as husband and wife;
b) B and F as de facto partners; and
c) F and L as de facto partners.
Section 52A of the Act allows for multiple relationship property claims to be made in situations involving “more than one contemporaneous relationship”. By dividing the relationship into separate parts, the claimants tried to show that their relationship, albeit polyamorous in nature, could also be viewed as three separate relationships which ran parallel to each other.
This argument was similarly defeated by the language of the Act and the notion of coupledom ingrained within it. The Judge found that only the claimants, who were married to each other, were in a qualifying relationship. The claimants’ individual relationships with F ((b) and (c) above) could not reach the status of de facto as the central feature of a polyamorous relationship, the multiplicity of partners, meant it was impossible to say that they lived together as a couple as per the language of 2D.
Furthermore, section 52A suggests that it applies only if there is one de facto relationship in addition to a marriage, not where there is a marriage and more than one contemporaneous relationship, as in the current case. Justice Hinton also remarked that as she could not point to a single instance where these sections had been implemented in the case law, she wasn’t inclined to interpret these provisions broadly.
As seen in the present case, the Act’s ability to respond to the property rights of those in polyamorous relationships is in part limited by the notion of coupledom that pervades the Act. Justice Hinton believed the concept was beyond the reach of the judiciary to challenge:
“Reform of the sort required by this case cannot be accomplished through the Courts. While many relationships are complex, polyamorous relationships are likely to be even more so.”
Justice Hinton feared that any reform, in the absence of parliamentary guidance, could result in confusing and inconsistent precedent. An especially valid concern given the legal complexities that could arise in these situations. For example, the parties would presumably still need to be in a qualifying relationship to claim under the Act, but what factors should the Court use to determine this in a polyamorous context?
From a statutory interpretation perspective, it’s hard to argue with the Court’s findings. However, lingering in the wake of this decision is still the question of whether the Act’s exclusion of polyamorous relationships that are functionally similar to qualifying relationships is in tune with its intention. Justice Hinton alludes to this sentiment when she remarks:
“Those who have decided to live in polyamorous relationships have an understandable desire… for the clarity that recognition of their relationships within the statutory scheme might offer”.
This reflects the Law Commission’s 2019 review of the Act in which members of the polyamorous community expressed a desire to have their multiple relationships recognized by the law. Submissions highlighted that that the current law strongly favors the primary couple (either married or otherwise) and largely excludes any secondary partners who may still contribute significantly to the family. The multiple relationships envisaged by section 52A tend to be interpreted as illicit “cheating relationships” when the reality can be more consensual and nuanced.
Previous amendments to the Act are a clear acknowledgement that it is malleable, and has the ability to respond to social developments. This is vital as the ways in which relationships and families are formed, how they operate, and what happens when they end, continue to change over time. As seen through the community reports referenced in the judgement, there is an increasing awareness that relationships can exist beyond the paradigm of coupledom. As a result, public values and attitudes are shifting, a sign that that validation through law reform may be an appropriate next step.
In practical terms, what Paul v Mead means is that if you are in a polyamorous relationship, you cannot rely on the Act for division of your property. This means that Contracting Out Agreements, a mechanism of the Act, are not a valid means of protecting property interests in these situations. There are however, other avenues available to people who intend to divide their property at the end of a polyamorous relationship. This includes entering into a property sharing agreement, creating a trust, or making an equitable claim in the High Court, as the Court suggested in Paul v Mead. If a couple is considering adding a third person to the relationship it would be prudent to consider these alternative means of protecting property interests.
The decision of Paul v Mead provides a useful insight into how the Act deals with disputes involving the property rights of parties in a polyamorous relationship. While Justice Hinton was not prepared to “squeeze” polyamorous relationships into a legislative framework premised on a two-party paradigm, her consideration of submissions from the polyamorous community and her candidness towards future reform, could be highly influential in promoting the future diversification of the Act in this area.