The judgement was read out at the Supreme Court in Wellington. Photo / Mark Mitchell
The judgement was read out at the Supreme Court in Wellington. Photo / Mark Mitchell
A panel of Supreme Court judges are at odds over a ruling that a polyamorous ex-throuple are theoretically all entitled to a share of the multi-million dollar property they lived in together.
The ruling passed by a narrow margin, with two of the five judges dissenting, citing concerns with how this precedent could affect future, more complex cases involving multi-partner relationships.
It is the first case of its kind in New Zealand, and centres on the question of whether the Family Court even has jurisdiction to resolve property disputes in such relationships.
The case relates to a couple, Lilach and Brett Paul, who married in 1993.
In 1999, Lilach Paul met Fiona Mead and in 2002 the three of them formed a polyamorous relationship.
They moved into a four-hectare property in Kumeu, which had just been purchased in Mead’s name for $533,000. She paid the deposit of $40,000.
They lived together at the property for 15 years, and mostly shared the same room and bed, court documents said.
All three worked and contributed to the household until 2017, when Lilach Paul broke up with Mead and Brett Paul, who in turn broke up in 2018, with Mead continuing to live at the property.
The property had by then risen in value to more than $2 million.
In 2019, Lilach Paul applied to the Family Court to determine the parties’ shares in the property, under the Property (Relationships) Act 1976 (PRA).
Mead protested the Family Court’s jurisdiction to consider the case, and it was referred to the High Court, which ruled there was no jurisdiction. But Lilach and Brett Paul appealed that decision, with the Court of Appeal ruling in 2021 the Family Court did have jurisdiction as the throuple could be defined as three separate, qualifying relationships under the act.
Mead then appealed to the Supreme Court last year.
In the Supreme Court appeal, her lawyer said the Court of Appeal had “undermined and misconstrued the essential nature of their relationship, that being a threesome” when it characterised them as being in three separate relationships.
The case focusing on jurisdiction for polyamorous relationship property disputes is the first of its kind in New Zealand. Photo / 123rf
Meanwhile, Lilach Paul’s lawyer said the PRA’s definition of a de facto relationship was “broad, flexible, and evaluative”.
“It is not concerned with how the parties describe themselves but with whether the relationship has the requisite characteristics. In this case, the polyamorous relationship between the parties was comprised of three qualifying relationships.”
There should be no practical impediment to dividing the property equally, so long as there were qualifying relationships.
“Excluding multi-partnered relationships from the definition of a de facto relationship would have serious implications, such as inadvertently ending a marriage once there is involvement of a third party.”
In a decision released Tuesday June 20, the Supreme Court ruled the Family Court did have jurisdiction to determine the throuple’s property dispute, meaning the case will head back to the Family Court to decide how the property should be divided.
Justices Mark O’Regan, Joe Williams and Stephen Kós made a majority judgement to dismiss Mead’s appeal and ordered she pay costs of $25,000.
They said a “purely arithmetical approach” was not consistent with “Parliament’s purpose in writing the legislation”, and that the statutory use of the word “couple” did not mean it was inappropriate to “draw the plural curtain to one side” to recognise the relationships that make up polyamorous families.
But nearly half the judges on the panel were in disagreement, with Justices Susan Glazebrook and Ellen France making a minority judgement in favour of the appeal.
“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,” they wrote in the judgement.
The appeal was heard in the Supreme Court in Wellington.
“Second, 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.”
They said viewing the throuple as three relationships effectively “shoehorned” their relationship into the “coupledom paradigm” and treated their relationship as “other than what it has been”.
There was a “danger” in the courts attempting to work through future cases involving polyamorous relationships without knowing the implications.
There could be future impacts on matters such as spouses using their sick leave to care for each other, one spouse dying without a will, and partner’s leave, among other things.
The current case was relatively simple as it involved just one property, but future cases could become messy with more properties and assets, more complex relationships, and break-ups over different periods of time, they said.
Brett Paul’s lawyer, James Duckworth, said his client was “extremely pleased” with the court’s decision, “which, for the first time, confirms the legal position of a three-person relationship in the laws of New Zealand and what happens when the relationships break down”.
“He believes the decision to be fair and just,” Duckworth said.
“To Brett, this recognises the years Fiona, Lilach, and himself spent together and all the hard work that they did. It also justifies the prolonged legal cases that have been heard before the High Court, Court of Appeal and Supreme Court.
“He hopes now that they are able to finally resolve matters between themselves which he had hoped they would have been able to do when the relationships ended in 2017 and 2018.”
Melissa Nightingale is a Wellington-based reporter who covers crime, justice, and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
