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Supreme Court majority rules PRA can apply to ‘throuples’, denies court is ‘gap-filling’

30 Jun 2023

| Author: Andrea Hilton

Appeal – jurisdiction of Family Court under Property (Relationships) Act 1976 –polyamorous relationships – qualifying relationship – couple – ‘vee’ relationships – Family Protection Act 1955 – New Zealand Bill of Rights Act 1990, s 19 – Human Rights Act 1993, s 21 – division of relationship property in equity – statutory interpretation – gap-filling by courts

Mead v Paul and Paul [2023] NZSC 70.

Fiona Mead and Lilach and Brett Paul lived together in a relationship in Fiona’s house, sharing the same room and bed. They agreed this relationship was their main relationship, but they were also free to love others. The court described the relationship as triangular. Lilach and Brett were married in 1993 and entered the relationship with Fiona in 2002.

They all contributed to the household and to the maintenance of the property. Lilach separated from Fiona and Brett in 2017 and Brett and Fiona separated in 2018.

In 2019, Lilach applied to have the Family Court determine the shares in the relationship property, Fiona’s house. Fiona objected to the court having jurisdiction to apply the Property (Relationships) Act 1976 (PRA). The Family Court asked the High Court whether it had jurisdiction under the PRA to determine property rights of three people in a polyamorous relationship. Brett supported Lilach’s application.

The HC decided the PRA did not apply because it is based on couples. On appeal, the Court of Appeal said the Act did apply because there could be couples within the context of a polyamorous relationship.

Fiona appealed to the Supreme Court, arguing her 15-year relationship with Lilach and Brett was not a qualifying relationship under the PRA. Lilach and Brett argued their overall relationship could be divided into three relationships, meaning the PRA would apply.

The issue was limited to whether the PRA applied at all. If it did, the matter would be referred back to the Family Court to determine how the Act applied.

The SC’s majority judgment summarised the development of legislation and equity in relationship property law in New Zealand and closely analysed definition sections within the PRA .

The majority said the pertinent questions were, “can a triangular relationship be a qualifying de facto relationship”, and “can a triangular relationship be divided into two or more qualifying relationships?” Alternatively, does the statutory phrase “liv[ing] together as a couple” mean individuals living in a triangular relationship “cannot obtain the benefits” or attract the responsibilities of the PRA?

Applicable principles:

Majority judgment

Morality not the issue – PRA based on notion of couples – mutual commitment an element of coupledom – substantial relationships likely to align with PRA purposes – PRA can apply to wider relationships – couples in ‘vee’ are qualifying relationships – both separate and cohabiting couples – exclusivity unnecessary for de facto couples – consideration of wider relationship relevant to s 2D(3) – whether a couple or not is a question of fact – marriage not ended by spouse entering de facto relationship – triangular relationship not recognised by PRA – ss 52A and 52B show Parliament envisaged multi-partner relationships – courts can fill gaps in legislation – purpose relevant to interpretation – courts can work out practicalities – practicalities matters of fact – treating ‘vee’ relationships differently to triangular illogical.

Dissenting minority judgment

Courts cannot legislate – court’s ability to fill gaps limited – focus on orthodox use of ‘couple’– de facto and civil union relationships couples – subdivision treats relationship differently to what it was – actual relationship important to analysis – ss 52A and 52B do not mean triangular relationship subdivisible – ss 52A and 52B still focus on couples – courts must know implications of proposed course – court must know whether approach causes difficulties – extending PRA to triangular relationship fundamental policy shift – policy issues for Parliament to resolve – majority assume answer to policy debate – extension of PRA should be by Parliament – PRA principles can be applied in equity

Held:

Majority

Appeal dismissed. After analysing ss 2, 2A, 2C, 2D, 52A and 52B:

  • A triangular relationship cannot be a qualifying de facto relationship;
  • A triangular relationship can be subdivided into two or more qualifying relationships;
  • Not necessary to consider NZ BORA argument;
  • Do not accept PRA unworkable for triangular relationships;
  • Do not accept decision will produce ‘insurmountable’ difficulties in other areas of law; and
  • The court is not ‘gap-filling’.

Minority

Would have allowed appeal. Treating triangular relationship as subdivisible is an artificial construct. Further, treating the potential issues arising from the expansion of the PRA as factual issues for the courts to work though “goes well beyond one of legitimate gap-filling” when the implications are unknown.

Andrea Hilton is a sole practitioner who previously worked as  in-house counsel in local government.

meadv L Paul and b Paul [2023] NZSC 70

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