By Lara Albert

Paul v Mead [2020] NZHC 666; Paul v Mead [2021] NZCA 649.

Paul v Mead is the “first case of its kind,” addressing matters pertaining to property within a polyamorous relationship. On the circumstances of this case, the Court of Appeal ruled in favour of recognising polyamorous relationships in the Property (Relationships) Act 1976 (PRA). It determined that, on this basis, the Family Court would have the jurisdiction to settle polyamorous relationship-property disputes. The decision has now been appealed and is being decided in the Supreme Court. This article will summarise the facts of this case and highlight the key elements of the differing High Court and Court of Appeal decisions.

FACTS OF PAUL V MEAD

This case is focused on a triad polyamorous relationship between Fiona Mead and Brett and Lilach Paul. Brett and Lilach Paul were originally married in 1993; they met Fiona in 1999 and started their relationship in 2002. In November of 2002, they collectively moved into a house in Kumeu, which Fiona had title to and had predominantly paid for.

The relationship between the three of them was committed and lasted for 15+ years. During this time, all participants contributed to the maintenance of the property. In November 2017, Lilach left the relationship and stopped living on the property. The following year Brett and Fiona ceased their relationship.

In 2019 Lilach applied to the Family court to seek one-third shared of the Kumeu property under the PRA. Fiona filed an objection on the basis that the Family Court did not have jurisdiction to address polyamorous relationships under the PRA. Then Brett filed a cross-application for his one-third share.

HIGH COURT DECIDES THE PRA EXCLUDES POLYAMOROUS RELATIONSHIPS

Hinton J in the High Court determined that the PRA did not apply to polyamorous relationships as it only had jurisdiction over the relationships of ‘couples.’ Regarding section 2D, her Honour stated that for a de facto relationship under the Act, the participants must be “living together as a couple.” Thus, by virtue of living together as a trio, Brett and Lilach, respectively, did not have de facto relationships with Fiona. Her Honour determined that the collective relationship could not be separated into dyadic parts because it would not fit the purposes of the PRA, which was premised on ‘coupledom.’ She concluded that the matter was best left to parliament.

COURT OF APPEAL OVERTURNS THE HIGH COURT JUDGMENT

The Court of Appeal overturned the decision made by Hinton J. The Court of Appeal took a more practical approach to the PRA, ultimately determining that while the PRA was premised on “coupledom,” this did not mean “exclusive coupledom.” The Court stated that the fact that Brett, Lilach and Fiona lived together as a triad did not effectively end Brett and Lilach’s marriage under the PRA. The Court similarly stated that the de facto relationships between Lilach and Fiona and Brett and Fiona could exist in the context of a conjoint polyamorous relationship. They made these determinations based on the Act expressly recognising the potential for contemporaneously occurring relationships in section 52A.

Upon these findings, the Court of Appeal ruled that it would be inconsistent with the New Zealand Bill of Rights 1990 to find that there should be a different division of property between these three relationships. Ultimately the Court of Appeal established that within the triad relationship, there were three contemporaneous qualifying relationships, and consequently, the Family Court had jurisdiction under the PRA to divide the property equally.

ISSUES AND ARGUMENTS

The key issue with the Court of Appeal’s finding is that they treat the relationship between Brett, Lilach and Fiona as three contemporaneous relationships rather than one relationship between three people. It is commonly understood that polyamorist relationships of this kind are one relationship. In this capacity, the Court of Appeal has somewhat stretched the facts to fit into the context of the PRA. However, in finding this outcome, the Court of Appeal avoids unnecessary inconsistencies. For example, the PRA applying to Brett, Lilach and Fiona under section 52A had Lilach and Fiona did not have a relationship– yet, failing to apply where they did (see diagram).

A more holistic reason why this application of the PRA is essential is that it ensures the PRA actually does its job. Polyamorous relationships are becoming more widespread with the rise of identity-associated polyamorists. Applying the PRA to polyamorous relationships means that the PRA, as a piece of social legislation, will continue to be socially relevant. Further, this application will suit the principles of the PRA to ensure fairness, equity and fast resolution of relationship property disputes.

OVERALL

The matter is before the Supreme Court now; submissions have been heard, and the Court is deliberating. Their decision has the potential to pave the way for greater acceptance of polyamory in New Zealand society and avoid serious implications of leaving vulnerable persons in property disputes without recourse under the Act.

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