Paul v Mead: A timely case as the definition of a relationship undergoes major changes

Written by: Erica Burke
Nov 14 2023

Supreme Court decision allows relationship property to be split amongst a three-person (polyamorous) couple

A ground-breaking Supreme Court decision has changed the accessibility of relationship property laws for people in polyamorous relationships, at a time when the make-up and structure of relationships is becoming more varied.

Paul v Mead considered the question of whether a three-person (polyamorous) couple qualify for the same rights as a two-person couple under the Property (Relationships) Act 1976 (the Act).   

While there is still greater need for clarity in this complex area, the case is the first requiring New Zealand courts to consider the question for a relationship that falls outside the binary definition of a “couple” (i.e. being between two people).  

The situation in Paul v Mead arose when Brett and Lilach (who were already married) began a triangular relationship with Fiona in 2002. They started a “principal” relationship (referring to the core relationship being between Fiona, Lilach and Brett and acknowledging that there were other people who joined the relationship at certain stages) and had a small ceremony celebrating their commitment to each other.

During the relationship, the parties moved into a four-hectare property at Kumeu in 2002 after it was purchased by Fiona for $533,000 in her name. Brett subsequently established a paintball business on the property and owned a separate lawn mowing business with Lilach.

Divorce and procedural history

After a 15-year relationship between all three people, Lilach separated from Fiona and Brett in 2017. This was followed by Brett and Fiona separating shortly after, and Fiona being the only person remaining at the property.

Family Court

Lilach applied to the Family Court in 2019 to determine each parties’ share in what they claimed was “relationship property” (as it is defined under the Act). Fiona disputed this claim on the basis that the Family Court did not have to determine the rights of a polyamorous relationship jurisdiction under the Property Relationship Act

High Court

With the Family Court’s jurisdiction in question, the matter was referred to the High Court which considered the question:

  • “Does the Family Court have jurisdiction under the Act to determine the property rights of three persons in a polyamorous relationship, either on the basis of that relationship or by dividing that relationship into dyadic parts?”

It decided the Family Court did not have jurisdiction because the parties’ relationship couldn’t be regarded as one between a “couple”, and it was a matter for Parliament to address.

Court of Appeal

Lilach appealed to the Court of Appeal and was successful. They found the correct assessment was whether the property rights of three persons in a polyamorous relationship can be determined under the Act on the basis of that relationship itself or by dividing it into “dyadic parts.”

Supreme Court Decision

After the Court of Appeals decision, Fiona appealed to the Supreme Court. It assessed two questions:

  1. Whether a “triangular” relationship (i.e. one between three people) itself could be a qualifying de facto relationship and,
  2. Whether a triangular relationship be subdivided into two or more qualifying relationships.

Question One

The Supreme Court held that a triangular relationship is not a qualifying de facto relationship because three people don’t qualify as “a relationship between 2 persons” who “lived together as a couple” which is the statutory language of the Act.

Question Two

The Supreme Court held the Court of Appeal was correct by ruling that the parties’ three-person relationship could be divided into three contemporaneous relationships, when interpreting the Act.

The majority of the Court adopted the framework followed by the Court of the Appeal, that the individual couples would still need to meet the test under section 2D of the Act. It found that a de facto relationship is “a relationship between two people.” The Court found that many of the factors of the parties’ relationship would satisfy this test (a long-term, committed relationship).

The next issue to consider was whether exclusivity was a pre-requisite for a de facto relationship under the Act. The Court agreed with the Court of Appeal that monogamy isn’t a reason that couples wouldn’t qualify as a qualifying de facto relationship under the Act.

Section 52A and B

The judgement carefully considered sections 52A and B of Act. Section 52A applies to a “vee agreement” which is when person A is married to or in a civil union to person B and in a de facto relationship with person C but which does not include persons B and C being in a relationship together.

Section 52B is similar but applies to two successive or contemporaneous de facto relationships. In both sections 52A and B, persons B and C are not in a relationship together. The Act can apply to both sets of relationships under these sections because each relationship can be considered a separate, qualifying relationship.

Consequences of the Supreme Court decision

The Court examined what constitutes a “vee arrangement,” including those with and without mutual cohabitation as a characteristic of the relationship. This process led to the question of whether the parties’ triadic/three-person relationship could be broken into three contemporaneous relationships rather than one singular relationship.

It was ultimately held that Lilach, Fiona and Brett’s relationship could be regarded as being made up of three constituent relationships which would fall under the Act.

The Paul v Mead decision is a complex one which leaves a number of questions as to how the Act will actually be applied to these parties and other polyamorous relationships in future.