Cases
June 21, 2023
The Supreme Court released judgment yesterday in Mead v Paul [2023] NZSC 70 regarding the application of the Property (Relationships) Act 1976 (the PRA) to partners in polyamorous relationships. Nura Taefi appeared on behalf of the successful first respondent Ms Paul. Former Shortland Chambers junior, Jessica Palairet, also appeared.
The proceedings concerned a triangular polyamorous relationship of some 15 years. The three partners were in an intimate relationship with one another, and lived together at a four-hectare property purchased shortly after the formation of their triangular relationship. The appellant, Ms Mead, had paid the deposit for the property, which was registered in her sole name. In 2017, Ms Paul separated from Ms Mead and Mr Paul, who themselves separated shortly thereafter in 2018.
In 2019, Ms Paul sought orders in the Family Court determining the parties’ respective shares in the relationship property and awarding her a one-third share of the property. Ms Mead protested the Family Court’s jurisdiction on the basis the triangular relationship did not constitute a qualifying relationship (marriage, civil union or de facto relationship) for the purposes of the PRA.
The Family Court referred the matter to the High Court, which held that the Family Court lacked jurisdiction to hear Ms Paul and Mr Paul’s claims. The High Court considered that the PRA was based on the “notion of coupledom”, and that neither party was living with Ms Mead in a de facto relationship because they did not live together “as a couple”.
The Court of Appeal allowed the appeal. It agreed that a polyamorous relationship was not a qualifying relationship under the PRA, given the Act’s premise of coupledom. However, the Court considered that coupledom did not have to be exclusive for the purposes of the PRA and, accordingly, that a person could be in more than one de facto relationship at the same time. The Family Court did therefore have jurisdiction to determine claims among three people in a triangular polyamorous relationship, where each partner in the relationship was in a qualifying relationship with each of the other partners.
The Supreme Court dismissed the appeal, by a majority comprising O’Regan, Williams and Kos JJ. The majority agreed with the Court of Appeal that a triangular relationship was incapable of falling within the definition of a “de facto relationship” under the PRA, but that a triangular relationship could itself be subdivided into two or more qualifying relationships. In enacting ss 52A and 52B in 2001, which provided rules for the division of relationship property to “vee arrangements” (where party A is in discrete qualifying relationships with B and C, but B and C are not in a qualifying relationship with each other), Parliament had directed that qualifying relationships need not be exclusive and that those who participated in a non-exclusive qualifying relationship would not, for that reason alone, lose their statutory claims to relationship property when that relationship came to an end. For this reason, vee arrangements were themselves capable of being subdivided into two qualifying relationships. The majority found no reason to distinguish between vee arrangements and triangular relationships for the purposes of the PRA, concluding that a triangular relationship could be subdivided into three qualifying relationships.
The minority, comprising of Ellen France and Glazebrook JJ, allowed the appeal, finding that the High Court was correct to conclude the Family Court had no jurisdiction to consider the parties’ claim. The minority considered it artificial to treat the parties’ triangular relationship as subdivisible in order to qualify under the PRA. It also considered that the practical ramifications of applying an Act premised on “coupledom” to a polyamorous relationship was such that it was a matter better left to Parliament to decide.
