18.07.2023

Property (Relationships) Act 1976 – Room for Three?

In the landmark decision of Mead v Paul ,[1] a question was posed to the Supreme Court regarding whether the Property (Relationships) Act 1976 (Act) applies to triangular polyamorous relationships.  If the Act was held not to apply, the division of property in triangular polyamorous relationships would be subject to the rules of equity. 

Background

Lilach and Brett Paul were a married couple who, during their marriage, entered into a relationship with another woman, Fiona Mead.  For 15 years, Lilach, Brett and Fiona had intertwined finances, committed to a shared life together and participated in mutual, non-exclusive, collective and individual sexual relationships.

Lilach, Brett and Fiona’s relationship was defined as a “triangular relationship” by the Court, as all three parties had a relationship with one another.  This may be compared with a “vee arrangement” where one party, Party A, is in a relationship with two others, Party B and Party C.  In a vee arrangement, Party B and Party C are not in a relationship with one another and may not even know about the other’s existence.

Lilach, Brett and Fiona lived together in a property in Kumeū.  The legal title of the Kumeū Property was held solely in Fiona’s name.  Lilach, Brett and Fiona subsequently separated and Lilach brought an application to the Family Court to claim a one-third share in the Kumeū Property, which Lilach argued was the Family Home.  Lilach’s application was supported by her ex-partner, Brett.

The question before the Court was whether the Family Court had jurisdiction under the Act to determine the property rights of three persons in a polyamorous relationship, either on the basis of that relationship or by dividing the relationship into multiple parts. 

Supreme Court

The Supreme Court found that a triangular relationship could not qualify as one de facto relationship under the Act.  This is because the definition of a de facto relationship is rigid and requires “2 persons” who “live together as a couple” in order to qualify, meaning it was logically impossible for a triangular relationship to fit within this definition.

However, the Court found that a triangular relationship may be broken down into two or more qualifying relationships.  The Court made its decision through considering the application of the Act to vee arrangements under sections 52A and 52B of the Act.  While the Court found that these sections could not apply to triangular relationships, the Court stated that the ability for parties in vee arrangements to raise an application under these sections demonstrated Parliament’s intention that the Act apply to both monogamous and non-monogamous relationships. 

The Court further reasoned that the only material difference between a vee arrangement and a triangular relationship is the existence of a relationship between all three parties.  It was the Court’s view that it would be illogical for the Act to not apply to triangular relationships on this basis.  The Supreme Court accordingly dismissed the appeal and upheld the Court of Appeal’s decision. 

The parties may now make an application to the Family Court for the division of relationship property under the Act. 

Lessons from the decision

It is important that the Act is able to keep up with social change and the diversity of modern relationships.  The Supreme Court has attempted to keep pace through affirming that the Family Court has jurisdiction under the Act to determine the property rights of persons in a triangular polyamorous relationship through dividing the relationship into multiple qualifying relationships. 

It will nevertheless be important for Parliament to consider how to further ensure that those in polyamorous relationships are free from discrimination under the Act and are subject to the same legal rights and obligations as monogamous couples.  Many people in polyamorous relationships do not view their relationships as subdivisible and, as noted in the minority judgment, the decision could be seen as “shoehorning the parties’ relationship into the coupledom paradigm”.

If you are in a relationship (whether polyamorous or monogamous) and would like to ensure that your assets are protected and not subject to the presumption or equal sharing, your best insurance is to enter into a relationship property agreement with your partner(s). 

If you have any questions about this article or relationship property matters generally, please get in touch with our Private Wealth Team or your usual contact at Hesketh Henry.

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

[1] Mead v Paul [2023] NZSC 70

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