March 4, 2022
The Family Court has jurisdiction under the Property (Relationships) Act 1976 to determine claims to property between parties to a polyamorous relationships.
Nura Taefi successfully argued this point in Paul v Mead  NZCA 649, representing the first appellant. Chambers junior Jessica Palairet also appeared for the first appellant.
The first and second appellant had married and maintained a two-person relationship before, some nine years after their marriage, they were joined in their relationship by the respondent. Following separation, the respondent argued that the Property (Relationships) Act should not apply to the parties’ property because the Act did not contemplate polyamorous relationships.
For the first appellant, Nura argued that:
While finding that the PRA does not apply to polyamorous relationships “as such”, the Court held that it was designed to “apply in circumstances where a relationship founded on mutual commitment has ended, and justice cannot be done by reference to neat commercial balance sheets”, and must be interpreted against such backdrop. So, although the wording of the PRA is concerned with two-person relationships, there may be “multiple qualifying relationships” within a relationship unit.
Put simply, “coupledom”, as required by the Act, is not contingent on exclusivity. This was made clear by the scheme of the Act, including, for example, section 52A.
The Court further asked two questions: did the marriage between the appellants end for the purposes of the property division under the PRA with the advent of their multi-person relationship; and could there be a de facto relationship under the PRA in the context of a wider polyamorous relationship?
On the first question, the Court held that it is important that the protections provided by the PRA continue whether spouses continue their relationship and form a multi-partner relationship with a third person. All parties contribute to the relationship and it remains “just as important” to recognise those contributions and provide for a just division of relationship property.
With this background in mind, the Court of Appeal held that the appellants’ marriage did not end when they formed a polyamorous relationship with the respondent; rather they continued to live together as a couple for the purposes of the PRA.
On the second question, the Court focused on the wording of s 2D(1)(b): did the parties live together as a couple? Again, there was no requirement for exclusivity and the scheme of the Act contemplated multiple contemporaneous de facto relationships. This interpretation was also found to be consistent with the right to freedom from discrimination on the grounds of family status under NZBORA.
Finally, the Court considered the “workability” of its approach and found that it could be applied to any couple which falls within the ambit of the Act.
A copy of the judgment may be found here.