The Supreme Court does maths: When 3 = 3 x 2

Last week, a Supreme Court decision captured media attention and "water cooler" chat on a scale that is rare for this country. This focus was likely less to do with any ground-breaking legal principle and more to do with the novel set of facts before the Court. 

The case is Mead v Paul.[1]  The Supreme Court’s decision (and structure diagrams) have introduced the concept of the “triangular polyamorous relationship” (colloquially known as a "throuple") to the uninitiated and clarified how our laws apply to them. We set out the facts and our analysis below.

The facts

The throuple in this case involved Brett and Lilach, a married couple, who formed a triangular relationship with Fiona in 2002 (“relationship”). Shortly after, Fiona purchased a property in Kumeū for $533,000 (“property”). Fiona paid the deposit and the property was registered in her name. For 15 years, the parties lived together in the property, sleeping in the same bed and each contributing to the household in various ways. 

The relationship ended in early 2018, at which point the property had a rateable value of $2,175,000. Lilach brought an application in the Family Court in which she claimed a one-third share in the property on the basis that the property was the parties’ family home for the purposes of the Property (Relationships) Act 1976 (“PRA”) and therefore relationship property. Brett supported Lilach’s application. Fiona objected to the Court’s jurisdiction on the basis that the parties did not have a qualifying relationship under the PRA.

The decision – the majority

The question for the Court was whether the parties’ relationship property rights could be governed by the PRA. The majority (O’Regan, Williams and Kós JJ) found they could, and in reaching that conclusion addressed two issues:

• Can a triangular relationship itself be a qualifying relationship?

• Can a triangular relationship be subdivided into two or more qualifying relationships?

On the first issue, a qualifying relationship under the PRA is a marriage, a civil union or a de facto relationship (which is defined, in short, as “a relationship between two persons” who “live together as a couple”), so the majority held that a triangular relationship cannot be a single qualifying relationship. 

However, on the second issue, the majority held that a triangular relationship can be subdivided into two or more qualifying relationships under the PRA.

It noted that ss 52A and 52B of the PRA provide for the priority of claims where a person has been in more than one qualifying relationship contemporaneously ie. a “vee arrangement”.

By enacting ss 52A and 52B, Parliament made it clear that a qualifying de facto relationship need not be exclusive. Therefore, the PRA contemplates that two people may live together as a couple while cohabiting with others and enjoying sexual relations with others, which may also qualify as a de facto relationship depending on whether it meets the “togetherness” criteria.

The majority held that there is no material distinction between vee arrangements and triangular relationships, for the purposes of the PRA. If the constituent relationships each meet the requirements of mutual (but not exclusive) commitment to qualify under the PRA, contemporaneity (and triangularity) does not take them beyond the Act.

The majority therefore sent the case back to the Family Court to decide on the respective shares of the parties. 

The decision – the minority

The minority (Glazebrook and Ellen France JJ) held that the Family Court had no jurisdiction to consider the parties' claims under the PRA. It did not follow from the fact that the PRA made some provision for contemporaneous relationships, that a relationship involving three persons could be re-characterised as a grouping of separate relationships between “couples”. This was because characterising the parties' relationship by “subdividing” it into its dyadic parts was “shoehorning the parties’ relationship into the coupledom paradigm”, which ignored how they “conducted their lives and how they saw their relationship”. It is for Parliament to decide whether to extend the Act to polyamorous relationships.

Analysis

The majority decision places strong emphasis on ss 52A and 52B. Clearly these sections evidence that Parliament considered that a person A who participates in non-exclusive relationships with B and with C will not, for that reason alone, lose their statutory claim to relationship property when one relationship comes to an end. The majority asks “Is the fact B and C now also formed a relationship material?”

We suggest that it is. A triangular relationship is inherently different to a vee arrangement and shouldn’t have to be reframed as something that the parties themselves did not intend it to be in order to conform to legislation not intended to apply to it. 

However, it is arguably a sub-optimal outcome if the PRA does not provide for polyamorous relationships. The PRA and its guiding principles of equality, expediency and equal sharing ought to be available to persons in a triangular relationship for reasons including sexual freedom and the right to freedom from discrimination based on family status. But this is a policy position that should be left to Parliament.

[1] Mead v Paul [2023] NZSC 70