A polyamorous throuple's split has divided the Supreme Court over whether ordinary relationship property rights apply.
Brett and Lilach Paul married in 1993. They met Fiona Mead about 1999 or 2000, and the trio formed a triangular polyamorous relationship in 2002, a landmark Supreme Court judgment published today said.
A four-hectare site in Kumeū was bought for $533,000 in November 2002, shortly after the throuple formed.
The trio lived together at the disputed Kumeū property for 15 years. They also "were free to love others", Lilach's affidavit said.
Fiona paid the deposit and the property was registered in her name.
"When we moved into the property, Fiona, Brett and I committed to a shared life with each other," Lilach's affidavit said.
Most of the time, the three of them shared the same room and bed.
But things took a turn, and Lilach separated from Fiona and Brett in November 2017.
The property had a rateable value of about $2.1 million at this point.
Then, Fiona and Brett separated in early 2018. Fiona continued living at the property, which is still registered in her name.
The Court of Appeal ruled that each party contributed to the household, but the parties "differ" about the extent of contributions.
The law in question
The introduction to the Supreme Court judgment explains the relevant legal framework.
"Where partners in a domestic relationship acquire or contribute to the acquisition of property together, and then break up, the law requires the legal titleholder to account for the contribution made by the other. It does so in two ways," the judgment explains.
"If the relationship is a qualifying relationship under the Property (Relationships) Act 1976 (the PRA), that Act applies.
"If not, equity may mitigate the austerity of legal title."
Fiona — the legal titleholder — has said the PRA does not apply.
Lilach and Brett have said the PRA does apply, arguing the relationship can be divided into three constituent couples.
The High Court agreed with Fiona, meaning the Family Court lacked jurisdiction over Lilach and Brett's claims.
The Court of Appeal disagreed, finding the Family Court did have jurisdiction.
Fiona then appealed to the Supreme Court.
The decision
The Supreme Court judgment released today was not unanimous.
The Honourable Justice Mark O'Regan, Honourable Justice Joe Williams and Honourable Justice Stephen Kós ruled: "A triangular relationship is capable of being subdivided into two or more qualifying de facto relationships under the PRA."
They noted that "exclusivity is not essential, but the two participants in each limb must still 'live together as a married couple', or 'as civil union partners' or as de facto partners".
"Where a qualifying relationship of marriage is altered by the formation of a triangular relationship with a third person, the married couple do not thereupon cease to be married for the purposes of the PRA, and that Act may continue to apply to each part of the triangular relationship," they said.
However, two Supreme Court judges were in dissent.
The Honourable Justice Susan Glazebrook and Honourable Justice Ellen France consider the High Court was correct.
They were concerned at the "artificiality" of treating the relationship as "subdivisible", and said: "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."
The majority ruling means Fiona's appeal was dismissed. She was ordered to pay costs of $25,000.
As a result, the Family Court has jurisdiction over the dispute.
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