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A precedent-setting court ruling that a polyamorous ex-throuple could theoretically all be entitled to a share in their $2 million former home is a “minefield” for future cases, a lawyer says.
But another lawyer said the decision was important and finally gave polyamorous people “the same rights as everyone else”.
The case centres on Brett Paul, ex-wife Lilach Paul, and Fiona Mead, all of whom were in a romantic relationship with one another from the early 2000s.
They moved into a home on a four-hectare Kumeū property Mead had just bought for $533,000 that was in her name. She had paid a deposit of $40,000.
Brett Paul and Lilach Paul were already married when they brought Fiona into their relationship in 2002 and formed a throuple - a situation in which all three people were romantically connected to each other in what the court referred to as a “triangular relationship”.
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 with Mead in 2018, with Mead continuing to live at the property.
In 2019 Lilach Paul went to the Family Court to have the property divided under the Property (Relationships) Act 1976 (PRA), triggering a string of legal cases all the way to the Supreme Court.
Yesterday, the court ruled the Family Court has jurisdiction to divide the property between the three, a decision that is the first of its kind in New Zealand.
Two of the five judges disagreed, saying it should be a matter for Parliament to decide.
Property law specialist Michael Foley told the Herald it was a “highly complex case” and “very facts-based”.
Foley said Justice Anne Hinton, who ruled in the High Court that the Family Court did not have jurisdiction, had been a “very experienced” lawyer in the area whose opinion was “highly sought after” before she became a judge.
The Supreme Court in Wellington released the decision yesterday. Photo / Mark Mitchell
That, coupled with the fact not even the “highly experienced” Supreme Court judges could come to an agreement on the case, concerned him.
“It’s a minefield for your average people and a very expensive way to have lawyers try to sort it out,” Foley said.
“It’s a very, very complicated area when you’ve got senior judges going in different directions. Each of their decisions are very well-reasoned and on its own they stand up.”
But Foley agreed it was a matter Parliament should address, “otherwise this case does nothing to resolve how other cases might be dealt with by lawyers and [at] great expense to people who are finished up in a polyamorous relationship”.
Meanwhile, partner and head of the family law team at Mortlock McCormack, Emily Flaszynski, said it was “important and good for all people that their property rights are protected”.
“It will certainly be interesting to see how this is applied.”
On the flipside, it could add longer wait times to an already-stretched Family Court system, Flaszynski noted.
“It would be very difficult for the courts to work through, and each case then is going to turn on the facts and the way the facts are presented.”
The PRA was “certainly old legislation”, she said.
The new decision was giving people rights and access to justice that they didn’t have before, as well as the ability to look at the PRA in a constructive way, she said.
Just because people were not in traditional forms of relationships did not mean they weren’t entitled to “the same rights as everyone else”, Flaszynski said.
“It is important, the world’s changing.”
Serafin Upton, a sex and relationship therapist who works with polyamorous clients, said the ruling sounded “very fair and pragmatic”.
Sex and relationship therapist Serafin Upton.
Currently, relationship property was geared towards the idea of couples in the traditional sense, which was not sustainable going forward, she said.
The law at the moment also didn’t do a good job of taking into account a number of different relationship types, including those of people who wanted to continue living together but no longer wanted a romantic relationship.
People in polyamorous relationships did need to recognise not all of their relationships might necessarily be equal, and while monogamous couples receiving more legal and legislative acknowledgement was an issue, polyamorous people needed to be aware they couldn’t “have their cake and eat it too”.
“We can get greedy and think that all relationships have the same weight. They just don’t.”
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.
