In the recent case of  PAUL v MEAD [2021] NZCA 649 the Court of Appeal was asked to determine whether the Family Court has jurisdiction under the Property (Relationships) Act 1976 (the PRA) to determine the property rights of three persons in a polyamorous relationship.

Qualifying Relationship under the Property (Relationships) Act 1976

The PRA determines how your property is divided in the event of separation or death. It applies if you have been living together as a married couple, a couple in a civil union or a de facto relationship for more than three years.

A de facto relationship is defined in the PRA as a relationship between two people who are both over 18, are not married or in a civil union with one another and live together as a couple. In determining whether people live together as a couple, the court looks at a range of factors including:

i. the duration of the relationship;

ii. the nature and extent of common residence;

iii. whether a sexual relationship exists;

iv. the degree of financial dependence or interdependence;

v. the ownership, use and acquisition of property; and

vi. the degree of mutual commitment to a shared life.

If the relationship falls within the definition of a de facto relationship, then the equal sharing regime under the PRA will apply. This means that all property acquired during the relationship (with some exceptions) such as the family home, vehicles, income and KiwiSaver will be equally divided in the event of separation or death.

The Case of Paul v Mead

Lilach and Brett were married in 1993 and formed a polyamorous relationship with Fiona in 2002. They all lived together for the next 15 years. Lilach then separated from Brett and Fiona in 2017, and Brett and Fiona separated in early 2018.

During the relationship, each partner made contributions to the household which was a four-hectare property in Kumeu.

In February 2019 Lilach made an application to the Family Court seeking orders determining the three parties’ respective shares in the relationship property.

Fiona disputed the application on the basis that it was founded on a relationship of three people, and so it was not a de facto relationship as defined under the PRA.

The case was then referred to the High Court for a decision as to jurisdiction. The High Court found that the PRA was limited to relationships between two people only and the Family Court had no jurisdiction under this Act to make orders for division.

Lilach then appealed the High Court decision. In the Court of Appeal, while it was agreed that a polyamorous relationship as such is not a qualifying relationship under the PRA, it was acknowledged the requirement for a couple to be living together does not mean that the relationship must be exclusive. The PRA expressly contemplates the possibility of contemporaneous de facto relationships (Sections 52A and 52B).

While agreeing there were difficulties with the application of certain sections of the PRA and that fundamentally the PRA is premised on “coupledom”, the Court of Appeal did not see these as a barrier to the application of the PRA to multi-partner relationships.

The Court of Appeal ultimately found that the jurisdiction of the Family Court does extend to determining claims among three people in a polyamorous relationship, with the jurisdiction being exercised in respect of each such couple within that relationship.

The Court of Appeal has referred this case back to the Family Court for a determination of the relationship property entitlement of the parties.

Polyamorous or not, it is important to be aware of the implications of the PRA on your relationship and your assets. If you have any concerns or simply want more information about entering into a Contracting Out Agreement (“pre-nup”) or a Separation Agreement, please do not hesitate to contact Annie Withington, Solicitor (03 343 8583 / annie@mmlaw.co.nz).