Is three a crowd? Polyamorous Relationships, Affairs and the Law

3 Aug 2022
Author: Nadia Holdcroft
 

Some may consider New Zealand to be a liberal country in comparison to other countries across the world. Marriages of the same sex have been legal since 2013. However, marriages are still limited to two persons. Is three a crowd? How does this impact claims under the Property (Relationships) Act 1976 (“the Act”)?

Polyamorous Relationships

Polyamorous relationships are committed relationships between more than two persons. Polygamy is the marriage between more than two persons at the same time. Polygamy is illegal in New Zealand. But de-facto relationships involving three or more persons are not. The question is: are they accepted by the realms of the law?

Property Claims and De-facto Relationships

So, what happens if you are involved in a polyamorous relationship? The Act states that the starting point for a qualifying de-facto relationship (further defined in this article: https://www.dtilawyers.co.nz/news-item/de-facto-relationships-what-they-are-and-what-they-mean-for-you) is a relationship between two persons.[1]

The Challenge: Paul v Mead

A recent case in New Zealand challenged this starting point and determined that while there was no practical reason that the Act could not be applied to polyamorous relationships, the Act was clearly drafted to apply only to relationship consisting of two people. [2]

The Case:

Lilach and Brett Paul were married. A few years into their relationship they met Fiona Mead and later began a polyamorous relationship with her. They all lived together in the relationship in a Kumeu property, owned in the sole name of Fiona, as she had purchased it prior to her relationship with either Brett or Lilach. The relationship lasted 15 years until Lilach separated from the relationship in 2017, and Brett and Fiona ended their relationship in 2018.

Lilach applied to the Family Court to seek an order determining the claims of relationship property of their polyamorous relationship, including the family home owned by Fiona. Fiona claimed that the claim would not succeed on the basis that the Act only applies to relationships consisting of two people only. To add to the mix, Brett claimed that parties were in three contemporaneous qualifying relationships rather than one three-way relationship and that each individual relationship was covered by the Act. This was the first issue addressing polyamory in the courts, and the matter was referred to the High Court for determination.

The Court held that it was impossible for a polyamorous relationship to be a qualifying relationship under the Act because a de-facto relationship was clearly defined as between two people. 

The Court was left to determine whether a polyamorous relationship could be divided into three or more separate de-facto relationships, to be considered by the Act. While you may not be a in a polyamory relationship, this may still impact you and your relationship in terms of extra-marital affairs.

[1] Property (Relationships) Act 1976, s2D.

[2] Paul v Mead [2020] NZHC 666. 



A Relationship Nightmare… The Affair

There are provisions in the Act that consider multiple claims under the Act where there are two relationships, either a marriage and de-facto relationship, or two de-facto relationships.[1] This provision has always been applied to the situation of affairs within relationships.

However, whether you try to claim such provision for an affair or a polyamorous relationship to be divided into three or more separate relationships, the Court held that such provisions do not expand the scope to polyamorous relationships. The provisions rather recognise and provide for potential conflicting claims that may arise where a person enters into a new de-facto relationship before dissolving their marriage.

The Court determined that the polyamorous relationship could not be divided into three separate qualifying relationships, because doing so would be inconsistent with the equal sharing principles of the Act.

The Future

While the case of Paul v Mead was unsuccessful in the legal acceptance of polyamorous relationships in New Zealand, the Court acknowledged that although the parties did not have jurisdiction to bring a claim under the Act, there were other legal options that Brett, Lilach and Fiona could use to address the division of their property, including equitable claims and the creation of a relationship property agreement.

While this may not be a win for the inclusion of polyamorous relationships being socially and lawfully accepted in New Zealand, the door has been left in ajar for the conversation to legally recognise the continued diversification of relationships in New Zealand.

This case is now before New Zealand’s Supreme Court. 

DTI Lawyers – We Can Help!

If you and your current partner are considering adding a third person to your relationship, engage DTI Lawyers and we can help you protect your assets! This could include updating your will, creating and protecting assets in a trust, or drafting property sharing agreement (also known as a “pre-nup” or Section 21 Agreement).

It could be that you are concerned that your partner is involved in a secret relationship with another person.  We can explain how, on the dissolution of your relationship, or upon the death of your partner, their property and your relationship property will be divided under the Act.

[1] Property (Relationships) Act 1976, s52A and s52B.



 
 
 
Is three a crowd?  Polyamorous Relationships, Affairs and the Law
About the Author
Nadia Holdcroft
Nadia Holdcroft is a member of the Commercial, Property and Private Client team at DTI Lawyers, Hamilton.