How is relationship property divided when a polyamorous relationship ends?

Relationships have evolved considerably in the last fifty years from "coupledom", and polyamorous relationships are on the rise. The recent Supreme Court decision of Mead v Paul [2023] NZSC 70 concerns the novel issue of how to treat polyamorous relationships under the Property (Relationships) Act 1976 (“the PRA”). A key tension in this case is that the PRA has not kept up with social change.

The PRA is the governing legislation which applies to property when a relationship between married, civil union, or de facto couples ends in separation or death. The PRA only applies to qualifying relationships, except in some limited circumstances. The PRA clearly defines what a qualifying relationship is given the significant consequences for property which naturally follow. A qualifying de facto relationship is defined as a relationship between two people aged 18 years or over and who are living together as a couple. Parliament arguably made its intention clear with the deliberate and express use of the words “two people” and “couple”.

Many might believe that the deliberate use of these words denotes a clear intention by Parliament for the PRA to only apply to monogamous relationships. Despite this, the Supreme Court has now issued a majority decision in Mead v Paul extending the definition of a de facto relationship to polyamorous relationships.

This landmark case concerns three individuals who were in a polyamorous relationship. Between 1999 and 2000, Fiona Mead formed a relationship with Lilach Paul and Brett Paul, a married couple. Fiona then purchased a four-hectare farm in her name shortly after the polyamorous relationship began. The parties lived there together for 15 years. This high-value property was in dispute once the parties separated. The principal issue was: does the PRA govern the relationship property rights of polyamorous couples?

The Supreme Court has answered in the affirmative. In reaching this conclusion, the majority reasoned that a polyamorous relationship could be subdivided into two or more qualifying relationships and therefore the PRA could apply. In summary, a de facto relationship does not need to be exclusive to qualify under the PRA.

It begs the question: how can the PRA be stretched to apply to polyamorous relationships when it was so clearly drafted to apply to couples? Two out of the five Supreme Court Justices disagreed that the PRA should extend to throuples. Justices Susan Glazebrook and Ellen France dissented from the majority, observing:

“We are concerned at the artificiality of treating the parties’ relationship as subdivisible in order to be able to qualify under the Property (Relationships) Act 1976”

“…we consider the practical ramifications of applying the Act, which is premised on coupledom, to the parties’ polyamorous relationship are such that it should be left to Parliament to decide whether to extend the Act and how to address the practical issues arising from an extension.”

The minority considered that the practical difficulties associated with applying the PRA to polyamorous relationships were such that the matter should be left for Parliament. This is a sound approach given the potential for further polyamorous cases to involve additional complexities such as multiple properties.

The key takeaway from this case is that if you are in a polyamorous relationship, the PRA may apply to how your property is divided when the relationship ends. The ramifications of this decision may appear trivial at first blush, but in a modern and progressive society there is scope for this decision to have far-reaching consequences.