Polyamorous relationships and property law … A single love triangle where “couple” means three … With diagrams … Winding up the polycule … Multi-partner relationships the new-new thing … Leave to appeal granted … Max Shanahan reports

However, in mopping up the messy separation of a local polycule, the New Zealand Court of Appeal was called upon to determine whether, for the purposes of property law, a polyamorous relationship constituted a single love triangle, or three contemporaneous, discrete relationships. 

While the justices held that the trio could avail themselves of the protections afforded to separated partners under the Property Relations Act, the matter was recently approved for appeal to the Supreme Court. 

Lilach and Brett Paul, the original couple, married in 1993. In 2002, they formed a polyamorous relationship with Fiona Mead, into whose property they promptly moved. 

The threesome lived contentedly there, in North Island wine country, for 15 years, each contributing in various ways to the upkeep and improvement of the property – Fiona practiced as a vet, while Brett established a paintball business and moved lawns with his artist wife. 

Lilach described the relationship:

“We had an understanding that although we were free to love others, the relationship between the three of us was the main relationship. For the large majority of the relationship all three of us have been sharing the same room and same bed … Soon after we moved into the property, we had a private ceremony during which Brett and I gave a third ring to Fiona. The ring was identical to the ring Brett and I had …”

Alas, the idyllic amorousness did not last. Lilach left the relationship in November 2017, and Brett and Fiona separated a few months later. 

Under the terms of the Property (Relationships) Act, each of the partners would be entitled to share equally in the relationship property if it could be proven they were each in relationships with each other. 

After the inferior courts found that the PRA did not extent to polyamorous relationships, the matter arrived at the Court of Appeal. 

In the High Court, Hinton J held that the PRA applied only to two-person relationships, citing the legislation’s continual reference to “couples”. 

Before the Court of Appeal, the Pauls – as appellants – argued that the PRA should be interpreted as “social legislation”, intended to move with the times and incorporate new forms of relationships. 

Judges are, perhaps, not the best people to turn to for tender consideration of current social mores pertaining to love and relationships. Displaying an unusual degree of self-awareness, the bench agreed that:

“Social legislation which affects everybody is not always the comfortable environment of lawyers whose usual preserve is the conventional structure of property and commercial rights …”

Unable to interpret the relationship naturally, their Honours turned to the concrete comfort of diagrams to aid their quest to interpret the trios true relationship status. 

Goddard J, giving the judgment for the full bench, reasoned that: 

“… the scenario of a contemporaneous marriage and de facto relationship is expressly contemplated by, and provided for, in [the legislation]. It is clear that ‘coupledom’ … is not dependent upon the exclusivity of the relationship between that couple.” 

HH defined the critical question as whether each pairing of the trio could be seen to “live together as a couple” per s.2D of the legislation. Section 52B thereof likewise – according to the justices – “expressly contemplates the possibility of contemporaneous de facto relationships”. 

Thus, a construction of the relationship as consisting of three discrete couples, each living together either in marriage or a de facto relationship, would allow the Pauls to avail themselves of the PRA protections. Goddard quoted DM v MP to illustrate the point:

“[The PRA] establishes that a de facto couple need not ‘live together’ to the exclusion of others. More than that, a person may live in more than one de facto relationship at any one time, so that the idea of a relationship in which two people ‘live together as a couple’ must accommodate that possibility.”

Read in the context of increasing recognition of multi-partner relationships, it was held that the property division clauses of the PRA should apply to polyamorous relationships, such as that previously enjoyed by the Pauls and Fiona Mead. 

However, the classification of the parties’ polycule as consisting of three separate couples, perhaps falls short of legal recognition of polyamory in family and property law. 

A New Zealand Law Commission report noted that the legal status of multi-partner relationships is “an issue that is likely to grow in significance in future … they may become more prevalent as social attitudes change and become more inclusive of different relationship structures”. 

Indeed, there is no explicit provision for multi-partner relationships in any common law jurisdiction – save for recognition of valid foreign polygamous marriages. 

Locally, s.4AA(5)(b) of the Family Law Act provides that “a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship,” but does not contemplate the scenario raised by multi-partner relationships in which each member is equally attached and committed to the other. 

Nevertheless, we are sure to receive further clarification of polyamory’s place in the law, with Mead granted leave to appeal to the Supreme Court against the Court of Appeal’s recognition of polyamourous relationships under the PRA.