Mead v Paul: Who gets the Honey? An analysis of how polyamorous relationships are recognised in relationship property law
BY MITCHELL COLE
I Introduction
The Property (Relationships) Act 1976 (PRA) governs the distribution of property when a relationship ends.[1] The PRA was originally intended for couples. However, in Aotearoa New Zealand, there has been an increase in throuples and other forms of polyamorous relationships. The PRA, in its current form, does not adequately govern how property should be divided when a relationship of this kind ends.[2]
Part II of this article will explain how the Supreme Court attempted to work around the PRA in Mead v Paul by splitting the throuple into multiple, separate two-person relationships.[3] Substantively, this was a positive step—it allows for some division of property under the PRA where there would otherwise have been none. However, as explained in Part III, a multitude of substantive and social issues in this area of law remain.
Finally, in Part IV, I explain that legislative reform is necessary to ensure that polyamorists have access to courts and the provisions in the PRA and offer some potential starting points. Recognition of polyamorous relationships is the first step of reform—they should not be forced into the framework of existing legislation.[4] Doing so is substantively ineffective and creates further social and legal complications. With the increasing prevalence of polyamorous relationships, legislative reform is not only necessary but also urgent.[5]
II Summary of Mead v Paul
Mead v Paul involves a (now ended) relationship between three individuals. The relationship included a married couple and a homeowner, who later joined the relationship and invited the couple to live together.[6] If a qualifying relationship were found, the family home would be considered relationship property, subjecting it to a presumption of equal sharing.[7] The Supreme Court split the dispute into two primary issues:[8]
Can a triangular relationship itself be a qualifying de facto relationship?
If not, can a triangular relationship be subdivided into two or more qualifying relationships?
The Supreme Court held that a triangular relationship does not qualify on its own but could be divided into two separate, qualifying relationships, so that the PRA could apply.[9]
III The problems with the PRA and Mead v Paul
a) Substantive issues
There is some substantive merit to this decision. Polyamorous relationship recognition has long been an issue, even before Mead v Paul.[10] The PRA was initially created for monogamous relationships, and this intention still lingers, despite the increasing prevalence of polyamorous relationships. For example, the phrase “as a couple” is repeated throughout the Act.[11] Mead v Paul allows for some regulation of polyamorous relationship property when there would otherwise be none.
However, there are still substantial issues. Once the Supreme Court determined that the relationship could be split into separate couples, it referred the case back to the Family Court for the division of property.[12] However, the Family Court is to rely on section 52B of the PRA, titled “Priority of claims where 2 de facto relationships”—which speaks for itself.[13]
The court is required to prioritise one ‘couple’ over the other. Firstly, this is substantively incorrect. Once the division of property for the first couple is complete, there is seldom anything left for the third person.[14] When three or more people contribute to a relationship, they should be entitled to a fair portion of the relationship property if that relationship ends.
Sections 52A–52B are already inadequate for their intended purpose, being situations where one person has multiple relationships (which is different to one relationship consisting of multiple people).[15] There is a lack of clarity on how these provisions are meant to operate within the PRA. These sections are designed to resolve property contests between multiple relationships, not one relationship consisting of three or more people. Once the property is divided between them, the partner in common will receive a full share of all property; whereas the partners in only one of the couples will receive a much smaller portion.[16] When the legislation is already inadequate for its intended purpose, shoehorning in ‘novel’ scenarios will only result in worse substantive decisions.
For example, the court may decide that the property was attributable equally to each relationship.[17] Each relationship now has 50 per cent of the property. From there, following the presumption of equal sharing (assuming no exceptions apply),[18] each person would get 50 per cent of that 50 per cent; so 25 per cent each. However, in Mead v Paul, the relationship was split into two couples, with one person (the homeowner) being part of both. This means that they will receive half of the property attributable to each couple, which will total to 50 per cent. The other two are left with only 25 per cent of the property.
b) Social issues
Beyond the substantive, there are several social issues with this interpretation of polyamorous relationships. Polyamorous relationships should not be viewed or treated as a collection of monogamous relationships, and it is problematic to artificially force them to be so.[19]
To receive any redress, the claimants in Mead v Paul were forced to view their relationship as fragmented.[20] This step should not have to be taken. Division of property disputes comes during incredibly stressful times. Forcing people who are already going through separation to have to rethink the structure of their relationship to something that it is not, just to qualify for a share of property, is a serious issue unique to polyamorous individuals. As things stand, the law prevents polyamorists from getting justice unless they interpret their relationships in line with the monogamy that the law is systemically biased towards.
Furthermore, these sections have often come into play when affairs are involved (as affairs frequently constitute multiple relationships).[21] Aligning polyamorous relationships with cheating is an issue. They should not be viewed as the same. Affairs are almost unanimously looked down upon in society. Even the PRA aims to avoid any property being granted to an adulterous partner—when prioritising one relationship over another, marriages always have an advantage over de facto relationships.[22] Polyamorous relationships are built on consent, whereas affairs are plagued by deceit and dishonesty.[23]
IV Suggested amendments to the law
These issues, while made apparent in Mead v Paul, were not created, nor caused by the decision. The Supreme Court made the best of a bad situation. This is a problem in statute and can only be fixed through legislative reform. The PRA is no stranger to amendments.[24] Relationship property law affects everyone and must keep up with changing societal views.[25]
There is a longstanding bias against polyamory in New Zealand.[26] It will take more than rewording the PRA to fix the issue at a systemic level. However, recognition in the law is the first step. Although beyond this article's scope, there has been discussion about legalising polygamy in New Zealand.[27]
Polyamorous relationships are being shoehorned into preexisting, already inadequate sections regarding contemporaneous relationships.[28] The distinction between these should be acknowledged.
One way to increase recognition of polyamory in statute would be to expand the definition of de facto relationships to expressly include polyamorous ones.[29] This would mean all sections of the PRA would apply immediately, and polyamorous relationships would not have to be broken down into arbitrary couples. Removing “between 2 persons” from section 2D of the Act is a start. This would not be difficult to implement—this section has seen changes, including the addition of “(regardless of their sex, sexual orientation, or gender identity)” into subsection (1).[30]
This change would also require the wording throughout the Act to be amended. The Act generally caters to relationships with only two members. For example, the Act consistently refers to relationships as a “couple” or members of relationships as “both”. This change would improve social recognition of polyamorous relationships and provide substantive clarity.
It is worth mentioning that there is some risk to making these changes. Including polyamorous relationships in the definition of “de facto relationships” may cause eligibility issues to arise. However, eligibility issues are already prevalent regardless.[31] Eligible polyamorous relationships and other contemporaneous relationships involving affairs or monogamy should be clearly distinguished. If amended as proposed, section 2D should already provide this distinction.[32]
V Conclusion
The recognition of polyamorous relationships in a relationship property context is crucial both substantively and socially. As things currently stand, the PRA does not provide adequate recognition.[33] The Supreme Court in Mead v Paul attempted to address these issues.[34] However, problems remain in forcing polyamorous relationships into (already inadequate) law intended to govern contemporaneous relationships, including affairs.[35] This can, and has, resulted in unjust decisions where one pair is prioritised over another according to ss 52A–52B of the PRA.[36]
Additionally, aligning polyamorous relationships with contemporaneous relationships has caused social issues, including many having to concede the view of their relationships to attain legal redress.[37] Polyamorists are being prevented from accessing justice unless they adopt a mindset of monogamy.
Legislative reform is required to recognise and provide for polyamory in the division of relationship property. This begins with including them in the wording of the statute. A further step would be to legalise polyamorous marriage in Aotearoa New Zealand. Legislative change is the first step in erasing systemic bias against polyamory.
[1] Property (Relationships) Act 1976 (PRA), s 1C.
[2] Law Commission Review of the Property (Relationships) Act 1976 (NZLC R143, 2019) at [7.36], citing Ngavaevae v Harrison [2017] NZHC 2788 at [50].
[3] Mead v Paul [2023] NZSC 70, [2023] 1 NZLR 261.
[4] Cornella Sartie “Two’s Company, Three’s a Crowd: A critical analysis of the interpretation of the Property (Relationships) Act 1976 regarding a polyamorous relationship in Mead v Paul” (LLB (Hons) Dissertation, Victoria University of Wellington, 2023) at 5, citing Mead v Paul, above n 3, at [95].
[5] Law Commission, above n 2, at [7.66].
[6] Mead v Paul, above n 3, at [5].
[7] At [21]–[24]; and PRA, above n 1, s 11.
[8] Mead v Paul, above n 3, at [47].
[9] At [49]–[50] and [89]
[10] Law Commission, above n 2, at [7.77].
[11] Ngavaevae v Harrison, above n 2, at [40]; and DM v MP [2012] NZHC 503, [2012] NZFLR 385 at [26].
[12] Mead v Paul, above n 3, at [35].
[13] The Family Court hearing to decide on the division of property has not yet happened, but this section will have to be used.
[14] Mark Henaghan “Family Law Review” (2022) 3 NZ L Rev 389 at 405.
[15] Law Commission, above n 2, at [7.34].
[16] At [7.46].
[17] PRA, above n 1, s 52B(2)(b)(i).
[18] Sections 11–17A.
[19] Mead v Paul, above n 3, at [93].
[20] Sartie, above n 4, at 33.
[21] Grieg v Hutchison [2015] NZHC 1309, [2015] NZFLR 587 at [9].
[22] PRA, above n 1, s 52A(2)(b)(i).
[23] Sartie, above n 4, at 26.
[24] Law Commission, above n 2, at IV
[25] Mark Henaghan “Ideologies of Family Law” in Henry Kha and Mark Henaghan (eds) Teaching Family Law: Reflections on Pedagogy and Practice (Routledge, London, 2023) 11 at 11.
[26] Sartie, above n 4, at 21, citing Jorge Ferrer “Mononormativity, Polypride, and the ‘Mono-Poly Wars’” (2018) 22 Sexuality & Culture 817 at 819.
[27] Nan Seuffert “Shaping the Modern Nation: Colonial Marriage Law, Polygamy and Concubinage in Aotearoa New Zealand” in Nan Seuffert and Catharine Coleborne (eds) Making Law Visible: Past and Present Histories and Postcolonial Theory (University of Wollongong, New South Wales, 2003) 186 at 212.
[28] Sartie, above n 4, at 5.
[29] If polyamorous marriages were legalised in New Zealand, the definitions of marriage and civil union in sections 2A and 2AB of the PRA respectively should also be amended.
[30] Property (Relationships) Amendment Act 2001, s 2D(1).
[31] For example, see Mead v Paul, above n 3; and Grieg v Hutchison, above n 21.
[32] PRA, above n 1, ss 2D(1)(a) and 2D(2).
[33] Law Commission, above n 2, at [7.36].
[34] Mead v Paul, above n 3.
[35] Sartie, above n 4, at 5.
[36] Mead v Paul, above n 3, at [35].
[37] Sartie, above n 4, at 33.
The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.