PAUL v MEAD [2021] NZCA 649

PAUL v MEAD [2021] NZCA 649 [3 December 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA219/2020[2021] NZCA 649BETWEEN LILACH PAULFirst AppellantBRETT PAULSecond AppellantAND FIONA MARGARET MEADRespondentHearing: 10 August 2021Court: French, Collins and Goddard JJCounsel: N W Taefi and J E Palairet for First AppellantNo appearance for Second AppellantP A Fuscic and K L Thompson for RespondentJudgment: 3 December 2021 at 11.00 amJUDGMENT OF THE COURTA The appeal is allowed.B We answer the question of law as follows:The Family Court has jurisdiction under the Property(Relationships) Act 1976 to determine claims to property as betweentwo persons who were married, in a civil union, or in a de factorelationship, and also in a polyamorous relationship.That jurisdiction extends to determining claims among three peoplein a polyamorous relationship, where each partner in thatpolyamorous relationship is either married to, in a civil union with,or in a de facto relationship with, each of the other partners in thatpolyamorous relationship.C The respondent must pay costs to the first appellant for a standard appealon a band A basis, with usual disbursements.D Costs in the High Court are to be determined by that Court in light of theoutcome in this Court.____________________________________________________________________Table of contentsPara noBackground [7]The proceedings [16]High Court decision [21]The issue before this Court on appeal [27]Submissions on appeal [29]Submissions for appellant [29]Submissions for respondent [34]Relevant PRA provisions [38]Discussion [58]The PRA does not apply to polyamorous relationships as such [58]Does the PRA apply to a married couple in a polyamorous relationship? [60]Can there be a de facto relationship for PRA purposes in the contextof a wider polyamorous relationship? [71]The workability of this approach [80]Conclusion [98]Result [105]REASONS OF THE COURT(Given by Goddard J)[1] Lilach Paul and Brett Paul were married in February 1993. In 2002, theyformed a polyamorous relationship with Fiona Mead. They lived together in thatrelationship for the next 15 years. Lilach separated from Fiona and Brett inNovember 2017. Brett and Fiona subsequently separated in early 2018.[2] During the relationship, the three partners lived together in the same house ona four-hectare property in Kumeu. Each partner made contributions of various kindsto their joint household.[3] What legal regime governs the division of property between the three partners,following their separation? The rules of common law and equity in relation to propertyinterests? Or the Property (Relationships) Act 1976 (PRA), and the principle itembodies that each of the spouses or partners is entitled to share equally in the familyhome, family chattels, and other relationship property?[4] When Lilach and Brett entered into a polyamorous relationship with Fiona in2002, they did not cease to live together as a married couple for the purposes of thePRA. As between Lilach and Brett, the PRA clearly applies following their separationin 2017.[5] Lilach says that for most of this period, her relationship with Fiona was ofessentially the same nature as her relationship with Brett. If that is correct, then thereis no good reason for a different legal regime to apply to division of property asbetween Lilach and Brett, and as between Lilach and Fiona. The PRA does notdistinguish between married couples and couples in a long-term de facto relationship.It would be inconsistent and unjust if the PRA governed the division of property asbetween Lilach and Brett, but a different regime based on common law and equitableproperty rules applied as between each of Lilach and Fiona, and Brett and Fiona.[6] We consider that the text and purpose of the PRA support its application asbetween the partners in each couple within a wider polyamorous relationship, if thatcouple is in a qualifying relationship. There may of course be different start and enddates for the application of the PRA so far as each couple is concerned. We explainthe reasons for this approach, and how it would work in practice, in more detail below.Background[7] As already mentioned, Lilach and Brett married in 1993. Lilach met Fiona in1999, and the three of them formed a polyamorous relationship in November 2002.[8] Around the time Lilach, Brett and Fiona formed their polyamorousrelationship, they moved into a four-hectare property in Kumeu which was purchasedin Fiona's name for $533,000. She paid the deposit of $40,000. The property hada rateable value of $2,175,000 in 2017. This is the property that Lilach and Brett sayis relationship property, in which they are entitled to share.[9] For the next 15 years, the parties lived together at the Kumeu property.Their relationship continued. For the most part they shared the same bed.[10] Fiona practised as a veterinarian throughout the relationship. Brett establisheda paintball business on the property. Brett and Lilach had a lawn mowing business.Lilach also practised as an artist.[11] Each party contributed to the household and to activities which occurred on theproperty (being general maintenance of the property and helping each other with theirrespective businesses). The parties differ about the extent of those contributions.[12] While the relationship between Lilach, Brett and Fiona was the primaryrelationship, there were other secondary relationships between each party and otherindividuals. Some of these secondary relationships were between one party and thesecondary party, while others involved more than one party (again, either individuallyat different points of time or forming a secondary polyamorous relationship). At leastone of these secondary relationships appears to have lasted for three years.[13] Lilach's affidavit provides an overview of the relationship, which appears tobe undisputed:For 15 years we were in a relationship and lived together at the Property.We had an understanding that although we were free to love others, therelationship between the three of us was the main relationship. For the largemajority of the relationship all three of us have been sharing the same roomand same bed until about a year before our separation when I moved into theguest room.When we moved into the Property Fiona, Brett and I committed to a sharedlife with each other. In particular, soon after we moved into the Property, wehad a private ceremony during which Brett and I gave a third ring to Fiona.The ring was identical to the ring Brett and I had with the exception of thestone in the middle and it was made by the same jeweller We all wore ourrings throughout our 15-year relationship, but I did lose my ring about twoyears ago. [14] Lilach separated from Fiona and Brett in November 2017.[15] Brett and Fiona subsequently separated in early 2018. Fiona remains living inthe Kumeu property.The proceedings[16] In February 2019 Lilach made an application to the Family Court naming Fionaand Brett as respondents. She sought orders determining the parties' respective sharesin relationship property. Lilach claimed that the Kumeu property was their familyhome, and claimed a one-third share of that property.[17] Fiona appeared under protest to the jurisdiction of the Family Court, on thebasis that Lilach's application was founded on a relationship of three people, so didnot relate to a de facto relationship as defined by the PRA.[18] Brett filed a notice of defence and a cross-application for orders determiningthe parties' shares in the relationship property "arising as a consequence of thecontemporaneous relationships". He sought a declaration that the parties were in threecontemporaneous qualifying relationships under the PRA:(a) Brett and Lilach as husband and wife;(b) Brett and Fiona as de facto partners; and(c) Fiona and Lilach as de facto partners.[19] Lilach applied for orders setting aside Fiona's protest to jurisdiction on thegrounds that the three parties were in a relationship of 15 years' duration, and herapplication related to three "triangular" contemporaneous relationships, as describedby Brett.[20] In June 2019 Judge Pidwell referred the case to the High Court by way of casestated. The parties could not agree on the specific terms of reference for the casestated. The Judge formulated the question for the High Court as:Does the Family Court have jurisdiction to determine the property rights ofthree persons in a contemporaneous polyamorous relationship under the[PRA]?High Court decision[21] Hinton J noted that the two effective claimants (Lilach and Brett Paul)appeared to accept that the PRA does not provide for polyamorous relationships assuch. Rather, they sought to break their three-way relationship down intocontemporaneous qualifying relationships. In those circumstances the Judgeconsidered that the question should be restated as follows:1Does the Family Court have jurisdiction under the [PRA] to determine theproperty rights of three persons in a polyamorous relationship, either on thebasis of that relationship or by dividing that relationship into dyadic parts?[22] The Judge recorded that the relationships that do qualify under the PRA aremarriages, de facto relationships and civil unions, each of which is defined in the Act.Each of those was, the Judge said, plainly limited to relationships between two peopleonly.2 The Judge identified a number of provisions in the PRA that assume there aretwo people in a marriage, civil union or de facto relationship.3[23] For the purposes of the PRA, a de facto relationship is defined as a relationshipbetween two persons who live together as a couple, and who are not married to or ina civil union with, one another.4 The Judge considered that, on their own evidence1 Paul v Mead [2020] NZHC 666, [2020] NZFLR 1042 [High Court judgment] at [3].2 At [23].3 At [24]–[27].4 PRA, s 2D.and on the basis of the case stated, neither Lilach nor Brett was living with Fiona"as a couple".5 Each was living with her as part of a threesome (or sometimes more).The Judge considered that:6While the requirement to be living together "as a couple" does not precludeanother person living with the couple, nor one of the couple living with a thirdperson, it does in my view exclude a scenario where all three are participatingin the very relationship at issue. That is not living together as a couple.[24] The Judge did not consider that Lilach and Brett's argument derived anysupport from ss 52A and 52B of the PRA, which address the priority of competingclaims where there are contemporaneous relationships: either a marriage or civil unionand a de facto relationship (s 52A), or two de facto relationships (s 52B).Those sections do not expand the scope of the PRA. There must be two qualifyingrelationships before those provisions can apply. In this case, the relationships betweenLilach and Fiona, and between Brett and Fiona, were not qualifying relationships.7[25] The Judge considered that Parliament had premised the PRA on the notion of"coupledom". Extension of the PRA to polyamorous relationships was a matter forParliament: that sort of reform cannot be accomplished through the courts.8[26] The Judge noted that this approach did not leave the claimants without remedy.The issues between them could be addressed at equity.9 It might be appropriate forthese areas of Judge-made law to be developed in light of the principles expressed inthe PRA.105 High Court judgment, above n 1, at [26], citing Property (Relationships) Act 1976 [PRA], ss 2Cand 2D.6 At [31] (emphasis in original).7 At [34]–[37].8 At [56]–[57].9 At [61], citing Lankow v Rose [1995] 1 NZLR 277 (CA); and, for a more recent application of thesame, Hawkes Bay Trustee Co Ltd v Judd [2016] NZCA 397. For a recent discussion of that caseand its "aftermath", see Emily Stannard and Helen Cull "Lankow v Rose and its aftermath" (2019)3 NZWLJ 93.10 At [61].The issue before this Court on appeal[27] Lilach appeals to this Court from the High Court judgment on the case stated.[28] The sole issue before this Court is the question of law raised by the case statedconcerning the jurisdiction of the Family Court to hear claims under the PRA asbetween partners in a polyamorous relationship. No findings have yet been made onmatters of fact relevant to whether any two or more of the participants were ina qualifying relationship for the purposes of the PRA, and no findings have been madein relation to division of property. Those are all matters that are yet to be determinedby the Family Court, in the event that it has jurisdiction to entertain Lilach and Brett'sclaims.Submissions on appealSubmissions for appellant[29] Ms Taefi, counsel for Lilach, submitted that a polyamorous relationshipbetween three persons is effectively three triangular contemporaneous relationships.She set that approach out in diagram form as follows:[30] Ms Taefi pointed out that when the PRA was amended in 2001 to extend therights previously afforded to married persons to people in de facto relationships, thoseamendments recognised that a person may be in a relationship with two people at thesame time.11 Clearly it was within Parliament's contemplation that the PRA mightapply to non-monogamous relationships.[31] Ms Taefi submitted that the test for a de facto relationship in s 2D of the PRAis evaluative, enabling the court to adopt a fact-specific approach to a variety of humanrelationships. The PRA is social legislation, which should be interpreted in a mannerconsistent with changing social mores and the diverse forms of relationships in oursociety. A purposive approach to the PRA recognises that it is intended to applyflexibly to a range of human relationships. The legislation does not make anyjudgement about the nature of the relationship in question: it simply seeks to achievea fair division of property once the relationship has ended.[32] Ms Taefi submitted that it would be anomalous, and contrary to the intentionof Parliament, to deprive Lilach of the rights of a de facto partner under the PRA whereher relationship with Fiona met the test set out in s 2D, solely on the basis that she andFiona were also in committed relationships with Brett. Likewise, it would beanomalous if ss 52A and 52B applied to a relationship where Lilach was in separatecontemporaneous relationships with Fiona and Brett (as shown in Diagram 2 below),but did not apply because Brett and Fiona were also in a contemporaneous relationshipwith one another (as in Diagram 1 above).11 PRA, ss 52A and 52B.[33] Ms Taefi submitted that the Court should adopt an interpretation of the PRAwhich is consistent with the New Zealand Bill of Rights Act 1990 (NZBORA), and inparticular the right to freedom from discrimination on the grounds of family status.12Family status means, among other things, being married to, or being in a civil unionor de facto relationship with, a particular person. The interpretation adopted by theHigh Court discriminated against Lilach because she was in a de facto relationshipwith a person who was also in a de facto relationship with her husband. Lilach shouldnot be denied the protections provided by the PRA — an equitable and efficientmechanism for dividing relationship property — merely because she was ina non-traditional relationship structure.Submissions for respondent[34] Mr Fuscic, counsel for Fiona, supported the approach adopted by the Judge.He submitted that the language of the PRA clearly confined de facto relationships torelationships between two people forming a couple. The PRA did not apply to threeor more persons in a polyamorous relationship. Section 52B did not extend the scopeof the PRA to other forms of relationship.[35] Mr Fuscic drew our attention to the many respects in which the language of thePRA reflects a focus on relationships between two people.13 He submitted that it isfor Parliament to change the law to give statutory recognition to relationships of threeor more persons as a "relationship" which has the same rights or responsibilities asmarried couples, civil union couples and de facto couples, which are the basicframework of the family unit. That did not mean that a partner in a polyamorousrelationship was left without legal remedies on separation. They might havea constructive trust claim in equity, or a quantum meruit claim.14[36] Mr Fuscic submitted that ss 52A and 52B are problematic in themselves, butin any event cannot extend the scope of the PRA. Those provisions apply only if thereis a relevant qualifying marriage, civil union or de facto relationship. Attempting to12 New Zealand Bill of Rights Act 1990 [NZBORA], s 19(1); and Human Rights Act 1993,s 21(1)(l)(iii).13 Including PRA, ss 2D, 11, 13, 21, 21A, 23 and 25.14 Lankow v Rose, above n 9; and Buysers v Dean [2002] NZFLR 1 (HC).apply ss 52A and 52B in this context would be unworkable and would produceunsatisfactory results.[37] The approach adopted by the High Court did not involve discrimination againstLilach under the Human Rights Act 1993, so did not involve any inconsistency withNZBORA. She was not in a de facto relationship with Fiona, so was not beingdiscriminated against on the basis of such a relationship. And in any event, thelanguage of the legislation is clear. Clear statutory language cannot be overridden byreference to NZBORA.15Relevant PRA provisions[38] The PRA governs division of relationship property when a marriage, civilunion or de facto relationship comes to an end. It applies only where the parties havebeen in one of these qualifying relationships. The PRA is a code: it applies instead ofthe rules and presumptions of the common law and equity to the extent that they applyto transactions between spouses or partners in respect of property.16[39] The purpose of the PRA is set out in s 1M:1M Purpose of this ActThe purpose of this Act is—(a) to reform the law relating to the property of married couples and civilunion couples, and of couples who live together in a de factorelationship:(b) to recognise the equal contribution of both spouses to the marriagepartnership, of civil union partners to the civil union, and of de factopartners to the de facto relationship partnership:(c) to provide for a just division of the relationship property between thespouses or partners when their relationship ends by separation ordeath, and in certain other circumstances, while taking account of theinterests of any children of the marriage or children of the civil unionor children of the de facto relationship.15 NZBORA, s 6.16 PRA, s 4.[40] Section 1N sets out four principles to guide the achievement of the purpose ofthe PRA:(a) the principle that men and women have equal status, and their equalityshould be maintained and enhanced:(b) the principle that all forms of contribution to the marriagepartnership, civil union, or the de facto relationship partnership, aretreated as equal:(c) the principle that a just division of relationship property has regard tothe economic advantages or disadvantages to the spousesor partners arising from their marriage, civil union, or de factorelationship or from the ending of their marriage, civil union, orde facto relationship:(d) the principle that questions arising under this Act about relationshipproperty should be resolved as inexpensively, simply, and speedily asis consistent with justice.[41] The terms "marriage" and "civil union" are defined in ss 2A and 2AB:2A Meaning of marriage(1) In this Act, marriage includes a marriage that—(a) is void; or(b) is ended while both spouses are alive by a legal process thatoccurs within or outside New Zealand; or(c) is ended by the death of one of the spouses, whether within oroutside New Zealand;—and husband, spouse, and wife each has a corresponding meaning.(2) For the purposes of this Act, the marriage of 2 people ends if—(a) they cease to live together as a married couple; or(b) their marriage is dissolved; or(c) one of them dies.2AB Meaning of civil union(1) In this Act, civil union includes a civil union that—(a) is void; or(b) is ended while both civil union partners are alive by a legalprocess that occurs within New Zealand; or(c) is ended by the death of one of the civil union partners,whether within or outside New Zealand.(2) For the purposes of this Act, the civil union of 2 civil union partnersends if—(a) they cease to live together as civil union partners; or(b) their civil union is dissolved; or(c) one of them dies.[42] Section 2C provides that a person is another person's de facto partner if theyhave a de facto relationship with each other. At the heart of this appeal is the definitionof the term "de facto relationship" in s 2D:2D Meaning of de facto relationship(1) For the purposes of this Act, a de facto relationship is a relationshipbetween 2 persons (whether a man and a woman, or a man and a man,or a woman and a woman)—(a) who are both aged 18 years or older; and(b) who live together as a couple; and(c) who are not married to, or in a civil union with, one another.(2) In determining whether 2 persons live together as a couple, all thecircumstances of the relationship are to be taken into account,including any of the following matters that are relevant in a particularcase:(a) the duration of the relationship:(b) the nature and extent of common residence:(c) whether or not a sexual relationship exists:(d) the degree of financial dependence or interdependence, andany arrangements for financial support, between the parties:(e) the ownership, use, and acquisition of property:(f) the degree of mutual commitment to a shared life:(g) the care and support of children:(h) the performance of household duties:(i) the reputation and public aspects of the relationship.(3) In determining whether 2 persons live together as a couple,—(a) no finding in respect of any of the matters stated insubsection (2), or in respect of any combination of them, is tobe regarded as necessary; and(b) a court is entitled to have regard to such matters, and to attachsuch weight to any matter, as may seem appropriate to thecourt in the circumstances of the case.(4) For the purposes of this Act, a de facto relationship ends if—(a) the de facto partners cease to live together as a couple; or(b) one of the de facto partners dies.[43] The relationship property of spouses or partners in a qualifying relationship isdefined to include the family home, whenever acquired; family chattels, wheneveracquired; and property owned jointly or in common in equal shares by the marriedcouple or by the partners. It also includes (with certain exceptions) all propertyacquired by either spouse or partner after their marriage, civil union, or de factorelationship began.17 All property of either spouse or partner that is not relationshipproperty is separate property.18[44] At the heart of PRA is the equal sharing principle in s 11:11 Division of relationship property(1) On the division of relationship property under this Act, each of thespouses or partners is entitled to share equally in—(a) the family home; and(b) the family chattels; and(c) any other relationship property.(2) This section is subject to the other provisions of this Part.[45] There is a very limited exception to the equal sharing principle, whereextraordinary circumstances make equal sharing of property or money repugnant tojustice. In those circumstances the share of each spouse or partner in the relevantproperty is determined in accordance with "the contribution of each spouse to the17 PRA, s 8(1).18 Section 9(1). Section 9A sets out certain circumstances in which separate property becomesrelationship property.marriage or of each civil union partner to the civil union or of each de facto partner tothe de facto relationship".19[46] The concept of contribution to a marriage, civil union or de facto relationshipis defined broadly in s 18, in accordance with the principle set out in s 1N(b):18 Contributions of spouses or partners(1) For the purposes of this Act, a contribution to the marriage, civilunion, or de facto relationship means all or any of the following:(a) the care of—(i) any child of the marriage, civil union, or de factorelationship:(ii) any aged or infirm relative or dependant of eitherspouse or partner:(b) the management of the household and the performance ofhousehold duties:(c) the provision of money, including the earning of income, forthe purposes of the marriage, civil union, or de factorelationship:(d) the acquisition or creation of relationship property, includingthe payment of money for those purposes:(e) the payment of money to maintain or increase the value of—(i) the relationship property or any part of that property;or(ii) the separate property of the other spouse or partner orany part of that property:(f) the performance of work or services in respect of—(i) the relationship property or any part of that property;or(ii) the separate property of the other spouse or partner orany part of that property:(g) the forgoing of a higher standard of living than wouldotherwise have been available:19 Section 13(1).(h) the giving of assistance or support to the other spouseor partner (whether or not of a material kind), including thegiving of assistance or support that—(i) enables the other spouse or partner to acquirequalifications; or(ii) aids the other spouse or partner in the carrying on ofhis or her occupation or business.(2) There is no presumption that a contribution of a monetary nature(whether under subsection (1)(c) or otherwise) is of greater value thana contribution of a non-monetary nature.[47] Section 22(1) provides for applications under the PRA to be heard anddetermined in the Family Court. Section 23(1) provides for claims to be made underthe PRA by a spouse or partner, or by a person on whom spouses or partners havemade conflicting claims. Section 25 provides for the court to make orders determiningthe respective shares of each spouse or partner in the relationship property. The courtmay also make orders dividing the relationship property or any part of it between thespouses or partners, and may make orders relating to the status, ownership, vesting orpossession of specific property. The court's jurisdiction to make such orders is (withcertain limited exceptions) exercisable only after the spouses or civil union partnershave separated, or after de facto partners no longer have a de facto relationship witheach other.20 A wide range of ancillary orders may be made under s 33.[48] Sections 52A and 52B make express provision for claims where a person is inmore than one relevant qualifying relationship. They provide as follows:52A Priority of claims where marriage or civil union and de factorelationship(1) This section applies in respect of relationship property if—(a) competing claims are made for property orders in respect ofthat property, one claim being in respect of a marriage or civilunion, as the case may be, and the other claim being in respectof a de facto relationship; and(b) there is insufficient property to satisfy the property ordersmade under this Act.20 Section 25(2).(2) If this section applies, the relationship property is to be divided asfollows:(a) if the marriage or civil union and the de facto relationship aresuccessive (regardless of the order in which they occur), thenin accordance with the chronological order of the marriage orcivil union and the de facto relationship:(b) if the marriage or civil union and the de facto relationshipwere at some time contemporaneous, then,—(i) to the extent possible, the property order relating tothe marriage or civil union must be satisfied from theproperty that is attributable to that marriage or civilunion; and(ii) to the extent possible, the property order relating tothe de facto relationship must be satisfied from theproperty that is attributable to that de factorelationship; and(iii) to the extent that it is not possible to attribute all orany of the property to either the marriage or civilunion or the de facto relationship, the property is tobe divided in accordance with the contribution of themarriage or civil union and the de facto relationshipto the acquisition of the property.(3) For the purposes of this section, a marriage and a de facto relationshipare successive if the de facto relationship begins during the marriage,but after the spouses cease to live together as a married couple.(3A) For the purposes of this section, a civil union and a de factorelationship are successive if the de facto relationship begins duringthe civil union, but after the civil union partners cease to live togetheras civil union partners.(4) In this section, and in section 52B, property order—(a) means an order made under any of sections 25 to 31, and 33;and(b) includes a declaration made under section 25(3).52B Priority of claims where 2 de facto relationships(1) This section applies in respect of relationship property if—(a) competing claims are made for property orders in respect ofthat property but in relation to different de facto relationships;and(b) there is insufficient property to satisfy the property ordersmade under this Act.(2) If this section applies, the relationship property is to be divided asfollows:(a) if the de facto relationships are successive, then in accordancewith the chronological order of the de facto relationships:(b) if the de facto relationships were at some timecontemporaneous, then,—(i) to the extent possible, the property orders must besatisfied from the property that is attributable to eachde facto relationship; and(ii) to the extent that it is not possible to attribute all orany of the property to either de facto relationship, theproperty is to be divided in accordance with thecontribution of each de facto relationship to theacquisition of the property.[49] When the PRA was first enacted in 1976 (as the Matrimonial Property Act),21it applied only to the division of property of a married couple following separation.But it was rightly recognised as important social legislation because it introduced theequal sharing principle set out in s 11, rather than applying common law and equitableproperty rules to the division of the couple's property. When the Matrimonial PropertyAct came before this Court in 1979 in Reid v Reid, Woodhouse J identified five generalbut important considerations that should influence the approach of the courts to theinterpretation of the legislation.22 Those considerations remain relevant today.[50] The first consideration was that although the Matrimonial Property Actoperates upon "property" as a subject matter, the law it lays down is not a part of thelaw of property in any traditional sense. Instead it is:23 social legislation aimed at supporting the ethical and moral undertakingsexchanged by men and women who marry by providing a fair and practicalformula for resolving the obligations that will be due from one to the other inrespect of their "worldly goods" should the marriage come to an end. In thatrespect it could be regarded as one facet of the wider legislative purpose ofensuring the equal status of women in society.21 The Matrimonial Property Act was renamed the Property (Relationships) Act in 2001.22 Reid v Reid [1979] 1 NZLR 572 (CA).23 At 580.[51] Woodhouse J continued, in a passage that still resonates today:24Thus the theme of the Act is not the technical, legal adjustment of the kind ofproperty rights that protect the arms-length interests of strangers but, in termsof the explicit statement in its long title, the recognition in New Zealandsociety of "the equal contribution of husband and wife to the marriagepartnership". While that partnership is in being there is rarely any questionabout individual rights in property which has been acquired as a single aspectof the marriage; but should things go wrong solutions are needed. There isthen a situation which neither spouse had prepared for. Against that risk theAct can serve a double purpose. On the one hand it will support a marriageduring a period of uncertainty by offering its statutory assurance that effortsto sustain the relationship need not be abandoned in order to avoid being leftfinally at a disadvantage. Its second more direct purpose is to declare inadvance the basis upon which matrimonial property will be divided at the endof a marriage.[52] The second consideration was the abandonment of a broad discretion, in favourof a strong bias in favour of equality.25[53] The third consideration was that:26For practical reasons if for no other the statutory formula should be interpretedand identified in order to achieve substantial justice and in a sufficientlyclear-cut way to avoid uncertainty or results that will vary in cases that arereally the same.[54] The fourth consideration also resonates in the present context:27The fourth consideration concerns the hypnotic influence of money in all thesematters. The 1976 Act is described as "an Act to reform the law ofmatrimonial property". It is not difficult to see why. As I have mentioned,under the earlier legislation there was a wide judicial discretion to achievejustice between husband and wife. But it was usually exercised to give anentirely disproportionate weight to monetary contributions, particularly whenthey had been provided by the husband. Social legislation which affects everybody is not always the comfortableenvironment of lawyers whose usual preserve is the conventional structure ofproperty and contractual rights which have grown up around the interests ofa relatively small and rather more affluent section of the community.So perhaps it is not surprising that a continuing effort is made to persuade theCourts to construe the matrimonial property legislation in ways which willretain as much as possible of the traditional rules. But it cannot be right toallow modern attitudes to marriage and the true importance of contributionsof spouses to their marriage partnership to be estimated against the curious24 At 580–581.25 At 581.26 At 581.27 At 581–582.medium of money. It is no more possible or sensible to put money values onachievements in a marriage partnership in the hope of producing neatcommercial balance sheets than it is sensible or possible to assess in moneythe environmental quality of a sea-view against the need for a factory thatwould block it out.[55] The fifth consideration, which Woodhouse J described as "of real significancein these cases", is that problems about dividing property occur at the end ofa marriage:28Perhaps for that reason it is usually overlooked that at its beginning personalaspirations are necessarily given away in favour of a commitment on bothsides to a common future that is quite uncertain. It is therefore a commitmentwhich involves not only the pooling of resources but the sharing of risks.If, for example, a commercial enterprise turns out to produce hardship ratherthan wealth the husband and the wife are obliged to face up to their resultantproblems equally and together. Usually that is exactly what they do. In myopinion that common acceptance of risks and the continuing chance ofmisfortune throughout the period of a marriage is a potent reason for keepingproper limits on claims by one spouse at the end of it that he or she alone isentitled to all or the major credit for property or commercial acquisitions,whether they be great or small. And there is the associated reason that theother partner to the marriage has forgone an equal opportunity of directlyachieving equal fame or fortune.[56] In 2001 the Matrimonial Property Act was renamed and amended to recognisethat the same important considerations apply as between de facto partners ina long-term relationship. Whether or not the partners are married, relationshipsfounded on mutual commitment and love cannot be measured by reference to"the curious medium of money".29 An attempt to produce "neat commercial balancesheets" in the context of such relationships is neither sensible nor achievable.30 Rather,it is appropriate to deal with separation — a situation which no partner had preparedfor — by applying the principles set out in this important social legislation in order toachieve substantial justice as between the parties.[57] It is against this backdrop — a backdrop of legislation designed to apply incircumstances where a relationship founded on mutual commitment has ended, andjustice cannot be done by reference to neat commercial balance sheets — that the PRAmust be interpreted and applied.28 At 582–583.29 At 582.30 At 582.DiscussionThe PRA does not apply to polyamorous relationships as such[58] We agree with the Judge that the PRA is concerned with relationships betweentwo people, and that a polyamorous relationship (or multi-partner relationship — weuse the terms interchangeably) as such is not a qualifying relationship under thePRA.31 There are numerous indications in the text of the PRA that it applies asbetween two spouses or partners. It is, as the Judge said, premised on "coupledom".32[59] But is coupledom — for the purposes of the PRA — exclusive coupledom?It seems to us that the key issue in this appeal is whether, as between two people ina wider multi-partner relationship, there may be a qualifying relationship to which thePRA applies. And whether, if so, there may be multiple qualifying relationshipsbetween couples within that broader multi-partner relationship.Does the PRA apply to a married couple in a polyamorous relationship?[60] It is helpful to begin by considering the position of a married couple such asLilach and Brett who subsequently enter into a multi-partner relationship. As alreadymentioned, they were married in February 1993. From that time onwards they werein a qualifying relationship for the purposes of the PRA: in the event that theyseparated in (say) 2000, the property consequences of the relationship and theseparation would have been determined under the PRA.[61] Did the PRA cease to govern the property consequences of the relationshipbetween Lilach and Brett, in the event that they subsequently separated, once theyentered into a multi-partner relationship with Fiona in 2002? The answer to thatquestion turns on whether their marriage ended at that time for the purposes of thePRA. Section 2A(2), set out above at [41], provides that for the purposes of the PRAa marriage ends if "they cease to live together as a married couple", or the marriage isdissolved, or one of them dies.31 High Court judgment, above n 1, at [58] and [21]–[27].32 At [56].[62] The marriage was not dissolved, and no one died. So the marriage ended in2002 only if Lilach and Brett ceased to live together as a married couple. Certainly,they were not living apart: they shared a home and a bed, and remained in a committedrelationship. They had a continuing sexual relationship. It appears they werefinancially interdependent. They were living together, and they were married.[63] Were they, however, a married couple? At one level, plainly they were: theywere a couple who had married, and remained married. But does the use of the term"couple" require that the parties live together as a couple exclusive of others?[64] The meaning of an enactment must be ascertained from its text and in the lightof its purpose and its context.33 As the Supreme Court observed inCommerce Commission v Fonterra Co-operative Group Ltd:34[22] It is necessary to bear in mind that s 5 of the Interpretation Act 1999makes text and purpose the key drivers of statutory interpretation.The meaning of an enactment must be ascertained from its text and in the lightof its purpose. Even if the meaning of the text may appear plain in isolationof purpose, that meaning should always be cross-checked against purpose inorder to observe the dual requirements of s 5. In determining purpose theCourt must obviously have regard to both the immediate and the generallegislative context. Of relevance too may be the social, commercial or otherobjective of the enactment.[65] Looked at in isolation, the word "couple" might be seen as conveying a flavourof exclusivity. But there are clear contextual indications in the PRA that it is possiblefor two people to live together as a married couple at the same time that one of themis in another committed relationship that qualifies as a de facto relationship for thepurposes of the PRA. The scenario of a contemporaneous marriage and de factorelationship is expressly contemplated by, and provided for in, s 52A. It is clear froms 52A that "coupledom" for the purposes of the PRA is not dependent upon theexclusivity of the relationship between that couple.[66] Logically, that must also be the position where both spouses in a marriage havea qualifying contemporaneous de facto relationship with some other person. And it is33 Legislation Act 2019, s 10(1), formerly Interpretation Act 1999, s 5(1).34 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767 (footnotes omitted).difficult to see why a different result should follow merely because the person withwhom each spouse is in a de facto relationship is the same (third) person.[67] Another important element of the statutory context is the broad approach to theterm "marriage" contemplated by s 2A(1). It extends to void marriages.35 And itwould in our view extend to any relationship recognised as a marriage as a matter ofcommon law.36 Consider, for example, the position of person A who enters intoa polygamous marriage outside New Zealand with B, and subsequently with C. If A,B and C subsequently come to live in New Zealand it is clear that the marriagesbetween A and B, and A and C, would each be recognised as marriages for the purposesof the Family Proceedings Act 1980. Section 2 of that Act expressly defines"marriage" to include a union in the nature of marriage that is entered into outsideNew Zealand, and is at any time polygamous, where the law of the country in whicheach of the parties is domiciled at the time of the union then permits polygamy. So inthis scenario it would be possible for C to seek a dissolution of her marriage with A inNew Zealand. It would be odd if C could not also seek division of relationshipproperty under the PRA. We consider that her marriage to A would qualify asa marriage for the purposes of the PRA,37 as well as for the purposes of the FPA.She would not be deprived of the protection of the PRA merely because the marriageshe entered into outside New Zealand was polygamous. And when applying the PRA,the duration of C's marriage to A would in our view include periods both inside andoutside New Zealand in which the marriage was in fact polygamous and A, B and Call lived together in the same household.[68] It is also consistent with the purpose of the PRA to treat a married couple ascontinuing to live together as a married couple during any period in which they areliving together in the context of a broader multi-partner relationship. Where a marriedcouple continue to live together in a committed relationship which involves sharinga home, pooling resources, and planning for a shared future, all the considerations35 See PRA, s 2A(1)(a).36 For the recognition of relationships as marriages under New Zealand law, even though suchrelationships are unknown to New Zealand law, see Hook and Wass The Conflict of Laws inNew Zealand (LexisNexis NZ Ltd, Wellington, 2020) at [9.39]–[9.43]. Polygamous marriageswill be recognised as marriages for most purposes: see [9.41].37 PRA, s 2A(1)(a).identified by Woodhouse J in Reid v Reid continue to apply.38 It would be odd todecline to apply the principles established by the PRA, and revert to property lawconcepts (legal and equitable), when dividing their property following a separation.Neat commercial balance sheets remain both unachievable and irrelevant in thiscontext, as between those two partners. The many forms of contribution thatcharacterise a committed intimate relationship are no less relevant in this scenario:they should all be taken into account, and treated as equal. The "curious medium ofmoney" cannot, and should not, be the lens through which their disparate contributionsare analysed. The formation of a multi-partner relationship does not provide anyrational basis for reverting to an approach focused on money and property rights asbetween the spouses if and when things go wrong, they separate, and solutions arerequired. The equitable principles developed by the courts in cases such asLankow v Rose go some way to addressing the unsatisfactory consequences of anapproach focused on money and property rights. But as this Court explained inLankow v Rose, a claim based on a constructive trust remains a proprietary claim. It isnecessary to show a causal relationship between the claimant's contributions and theacquisition, preservation, or enhancement of the assets of the defendant, anda reasonable expectation of an interest in the claimed property.39 The frame remainsmuch narrower than under the PRA.[69] Put another way, the protection that the PRA provides to each spouse does notbecome less relevant or less necessary in circumstances where the spouses continue intheir relationship, and also form a multi-partner relationship with a third person.It remains just as important to recognise the equal contribution of both spouses, andto provide for a just division between them of any relationship property.[70] When s 2A(2) is read in its wider statutory context, and in the light of thepurpose of the PRA, it is in our view clear that the marriage of Lilach and Brett didnot end in 2002 when the multi-partner relationship with Fiona began. They continuedto live together as a married couple for the purposes of the PRA. The PRA wouldgovern the division of their property in the event of death or separation.38 Reid v Reid, above n 22, at 580–583; and see above [50]–[55].39 Lankow v Rose, above n 9, esp at 282 and 286 per Hardie Boys J and 294–295 per Tipping J.Can there be a de facto relationship for PRA purposes in the context of a widerpolyamorous relationship?[71] Against that backdrop, we turn to the question whether two people who are ina multi-partner relationship may also be in a qualifying de facto relationship for thepurposes of the PRA. The critical question is whether the two persons "live togetheras a couple": s 2D(1)(b). It follows from our analysis above that the focus should beon the nature of the relationship between those two people. It is not a necessaryelement of living together as a couple that the relationship be exclusive. The statutorycontext confirms that a person can be in more than one de facto relationship at thesame time: s 52B(2)(b) expressly contemplates the possibility of contemporaneousde facto relationships. As Miller J observed in DM v MP, the legislation:40 establishes that a de facto couple need not "live together" to the exclusionof others. More than that, a person may live in more than one de factorelationship at any given time, so the idea of a relationship in which twopeople "live together as a couple" must accommodate that possibility.[72] Likewise, the purpose of the PRA is engaged whenever there is a qualifyingde facto relationship between two people, regardless of whether one or both of thosepersons is in a relationship with some other person. It would be inconsistent with thepurpose of the PRA to focus on money and property rights, and decline to apply theequal sharing principle as between two de facto partners, merely because one or bothare in qualifying relationships with another person for some or all of the relevantperiod.[73] It is of course the case that the PRA will apply as between two participants ina multi-partner relationship (who are not married and not in a civil union) only if theirrelationship meets the test in s 2D of the PRA. It is necessary to take all thecircumstances of the relationship between those two persons into account, includingthe specific matters referred to in s 2D(2). In the context of a long-term committedmulti-partner relationship, many of those factors are likely to be present as betweenany two persons in that relationship. If that is the case, the conclusion may be reachedthat each pair of individuals in the relationship is living together as a couple.40 DM v MP [2012] NZHC 503, [2012] NZFLR 385 at [19].[74] The courts have observed that where A and B are married, or are in a qualifyingde facto relationship, it may be difficult in practice to establish that B is also ina contemporaneous de facto relationship with C.41 But ultimately that is a question offact. And it may be easier to establish that B is also in a contemporaneous de factorelationship with C, applying the s 2D test, where A, B and C are all living together inthe same household, in a multi-partner relationship, than it would be if A and B livetogether and B's relationship with C is separate and parallel.[75] Our conclusion is reinforced by considering the position of Fiona and Brettafter Lilach's departure in November 2017. If the relationship between Fiona andBrett satisfied the test in s 2D at that time, then plainly they would be in a de factorelationship for the purposes of the PRA at that time. It seems odd to suggest that thisde facto relationship began at the moment Lilach left. As between Fiona and Brett,nothing material changed in 2017 that has a bearing on the appropriateness of the PRAapplying to determine their entitlements to property in the event that they separate atsome later date. Lilach's departure would not of itself affect any of the specific factorslisted in s 2D as between Fiona and Brett. It would be illogical and unfair if the PRAdid not apply as between Fiona and Brett when they separated in 2018, because theirde facto relationship was treated as having lasted less than three years.[76] In its recent review of the PRA the Law Commission expressed the view thatthe Act does not apply to relationships between three or more people.The Commission describes the PRA as "premised on the notion of 'coupledom'".42We agree that the PRA is premised on the notion of coupledom. But as explainedabove, we do not consider that that notion is in turn premised on exclusivity. As thatnotion is used in the context of the PRA, a multi-partner relationship may include oneor more couples, with the PRA applying as between the members of each couple.[77] The Law Commission went on to observe that excluding multi-partnerrelationships that are functionally similar to qualifying relationships from the PRA"may be difficult to justify".43 We agree. As explained above, we consider that the41 See Ngavaevae v Harrison [2017] NZHC 2788 at [50]; and DM v MP, above n 40, at [26]–[29].42 Law Commission Review of the Property (Relationships) Act 1976 | Te Arotake i te Property(Relationships) Act 1976 (NZLC, R143, 2019) at [7.62].43 At [7.65].PRA can be read in a way which ensures its application as between two individuals ina multi-partner relationship, in circumstances where the purposes of that veryimportant social legislation are engaged.[78] We add that it would be unsatisfactory if a different conclusion were to bereached in relation to the qualifying element of living "as a couple" as between marriedpartners and de facto partners. One of the central objectives of the 2001 amendmentsto the PRA was to ensure that married and de facto couples would be placed on thesame footing.44 There would need to be a compelling reason to conclude that the PRAcan apply to a married couple in a wider multi-partner relationship, but not to anunmarried couple whose relationship was in all other respects equivalent and whowere in that same multi-partner relationship.[79] We also consider that NZBORA supports the adoption of an interpretation thatdoes not distinguish between married and de facto partners in this context. Section 6of NZBORA provides that an available interpretation that is consistent with NZBORAshould be preferred to any other meaning.45 Section 19(1) of NZBORA provides thateveryone has the right to freedom from discrimination on the grounds set out in theHuman Rights Act. The prohibited grounds of discrimination identified in theHuman Rights Act include "family status", which includes being married to, or beingin a civil union or de facto relationship with, a particular person.46 Section 2D of thePRA can be given a meaning consistent with the right to freedom from discriminationon the grounds of family status by adopting a consistent approach to whether twopeople are living together as a couple, regardless of whether they are married, orunmarried but otherwise in an equivalent (de facto) relationship. So it must be giventhat rights-consistent meaning.The workability of this approach[80] We do not accept the argument that this approach would be unworkable inpractice. It can be applied in relation to any couple who is married or in a civil union44 Bourneville v Bourneville [2008] NZCA 520, [2009] NZFLR 69 at [21].45 For a recent discussion by the Supreme Court of s 6, and when a rights-consistent meaning isavailable, see Fitzgerald v R [2021] NZSC 131.46 Human Rights Act, s 21(1)(l)(iii).or de facto relationship, in order to determine their mutual rights as against each other.The starting point will be the equal sharing presumption in s 11 of the PRA. It is ofcourse always necessary to determine the scope of the relevant relationship property,and identify any other claims on that property, when applying the equal sharingprinciple as between a couple.[81] Some examples may be helpful. First, suppose that three people A, B and Care in a committed polyamorous relationship. They live together in a single household.Each pair of individuals in the relationship is in a qualifying relationship: either theyare married or in a civil union, or they are in a de facto relationship as defined in s 2D.The property at which they live is owned by A.[82] The term "family home" is defined in s 2 of the PRA to mean: the dwellinghouse that either or both of the spouses or partners usehabitually or from time to time as the only or principal family residence,together with any land, buildings or improvements appurtenant to thatdwellinghouse and used wholly or principally for the purposes of thathousehold [83] If the property is the family home of each of the three partners, then it is thefamily home for each couple. If all three separate, and C brings a claim under the PRAagainst A and B, it follows from s 11 of the PRA that each is entitled to share equallyin that family home. So:(a) As between C and A, each is entitled to share equally in the home.(b) In determining the practical implications of that right to equal sharing,and the orders to be made, the court needs to bear in mind that each ofA and B are entitled to share equally in that home vis-à-vis C.(c) The appropriate order to make on C's application is thus an ordergranting C a one-third share in the family home.47 That achievesequality as between the partners in each relevant couple.47 Putting to one side any claim a partner may have for unequal division of property, such as a claimbased on economic disparity under s 15 of the PRA.[84] The same applies if C leaves the polyamorous relationship, so ceases to be ina qualifying relationship with A and B, but A and B continue in their qualifyingrelationship. In those circumstances also, an application by C against A and B willresult in an order giving C a one-third share in the property.48[85] The power of the court to make orders under ss 25 and 33 of the PRA isexpressed in broad terms that would enable appropriate orders to be made to give effectto this equal division. The court might require a payment to be made by A and/or B toC, or require the sale of the property and equal division of the proceeds.[86] The presumption of equal division does not mean that each partner is entitledto 50 per cent of the property as a whole, as the Judge suggested below.49 Rather, itmeans that neither is entitled to more or less than the other. There is no difficultyapplying that presumption of equal division in the manner set out above, andconcluding that each is entitled to a one-third share. This outcome is consistent withthe general policy of the PRA. We do not share the view expressed by the Judge thateach partner obtaining a 33 per cent share is "materially at odds" with that policy.50[87] Nor do we consider that ss 52A and 52B give rise to significant concerns aboutworkability. In circumstances where A, B and C have separated, and B and C eachbring a claim against A for one-third of a family home, the better view is that s 52A isnot engaged. That provision only applies where there are competing claims forproperty orders in respect of certain property, and there is insufficient property tosatisfy the relevant orders. But as the examples above illustrate, the court can makeorders which give effect to the parties' mutual rights in a manner which does notinvolve competition between claims: there is sufficient property to satisfy the claimsof both B and C, and to satisfy the orders that would be made in their favour.The difficulties that some commentators have identified in relation to s 52A do notarise in this scenario.5148 Again, putting to one side any claim a partner may have for unequal division of property.49 High Court judgment, above n 1, at [44].50 At [45].51 See for example Law Commission, above n 42, at [7.45]–[7.48].[88] We agree with the Judge that there are "acknowledged difficulties" with theapplication of ss 52A and 52B.52 But we do not see those difficulties as a barrier tothe application of the PRA to couples in the context of a multi-partner relationship.Indeed it seems to us that these difficulties are less likely to arise in the context ofa single contemporaneous multi-partner relationship than in the context of twocontemporaneous two-partner relationships, where one individual may face competingclaims from two former partners in respect of the same relationship property, with eachformer partner claiming an entitlement to a 50 per cent share of that property. In manycases involving polyamorous relationships, there will be no competing claims, theproperty will be sufficient to satisfy each participant's claim to share equally with eachother participant, and ss 52A and 52B will not be reached.[89] It is possible that in some cases involving multi-partner relationships there willbe competing claims, and insufficient property to satisfy the orders that wouldotherwise be made. In those cases the courts will need to strive to make ss 52A and52B work in a manner consistent with the purposes of the PRA, just as the courtswould need to do in cases concerning two contemporaneous two-partner relationships.But we do not see the likelihood of such cases, or the difficulty of resolving them, asa sufficient reason to depart from the approach to the PRA that we have outlined above.[90] The approach we have described above, applying the PRA as between eachcouple, is also workable when it comes to addressing other issues that arise under thePRA. It is neither feasible nor appropriate for us to work through every conceivableissue that might arise. But it may be helpful to outline how this approach would workin three scenarios: one involving property other than the family home, one involvings 9A (where separate property becomes relationship property), and one involving s 13(exceptional circumstances leading to unequal sharing).[91] First, property other than the family home. Suppose X is married to Y andlives with her much of the time. But he is also in a de facto relationship with Z, withwhom he spends several days most weeks. Y and Z are not in a relationship (indeed,52 High Court judgment at [41].they have not met). X has a good job and is saving regularly. During the overlap inthe relationships he saves $200,000 from his wages.[92] X's relationships both come to an end. Y and Z each bring claims against Xunder the PRA. The savings are relationship property for the purpose of each of X'srelationships: s 8(1)(e). (The savings are not relationship property as between Y andZ: they are not in a relationship.) Section 52A applies to X's two contemporaneousrelationships, but provides no meaningful guidance in this scenario. The answerappears to lie in an application of s 11 — the entitlement to share equally in thisproperty, on a basis that takes into account the three claims to that property. If thecourt awards each of Y and Z one third of the savings, then Y shares equally with X(each receives the same, neither more nor less) and Z shares equally with X. It wouldmake no sense to award each of Y and Z 50 per cent of the savings, leaving X withnothing — that would not reflect equal sharing as between each claimant and X.[93] Now suppose that the facts are as above but X, Y and Z are in a multi-partnerrelationship, and Y and Z satisfy the s 2D test for a de facto relationship. The sameanalysis leads to the same conclusion: each receives one third of the savings. (In thisscenario, as in the scenario above, the savings are not relationship property as betweenY and Z. Although Y and Z are in a relationship in this scenario, X's savings are notproperty acquired by either Y or Z during their relationship).53[94] Next, we turn to s 9A. The facts are as [93] above, with X, Y and Z ina multi-partner relationship. X uses his savings to improve a rental property he ownedbefore he met either Y or Z. The rental property is separate property. Any increase invalue of the rental property as a result of this application of X's savings (which arerelationship property in each of X's relationships, as above) becomes relationshipproperty by virtue of s 9A(1) for the purpose of each of X's relationships. That gainis shared in the same way as the savings would have been shared. X must share thisgain equally with each of Y and Z. That result can be achieved if and only if eachreceives one third of the gain.5453 PRA, s 8(1)(e).54 The same result would presumably be reached if X was in contemporaneous two-partnerrelationships with Y and Z, as with the savings.[95] Now suppose that Y does work on X's rental property, and that work increasesthe value of the rental property. That increase in value is relationship property asbetween X and Y by virtue of s 9A(2). But s 9A(2) does not apply to this value increaseas between X and Z. If X was in contemporaneous two-partner relationships with eachof Y and Z, the gain in the value of the rental property would be divided between Xand Y, with their shares determined in accordance with their respective contributionsto the increase in value. Z would have no claim against X in respect of this gain. If allthree are in a multi-partner relationship, the same result would be reached: s 9A(2)does not enable Z to claim that the increase in value is relationship property, nor hasZ made any contribution to that increase in value.55[96] Finally, consider the scenario where X, Y and Z are in a multi-partnerrelationship, the relationship between each couple is a qualifying relationship, anda few months before separation X applies an inheritance of $1 million to clear themortgage on the family home valued at $2.5 million. Following separation, X claimsthat s 13 applies as between himself and each of Y and Z. If the Family Court acceptsthat as between X and Y this amounts to extraordinary circumstances that make equalsharing between them repugnant to justice, then the shares of X and Y must bedetermined in accordance with their respective contributions to the relationship.Likewise, as between X and Z. But there are no extraordinary circumstances asbetween Y and Z, so they will continue to share equally (that is, as between themneither receives more nor less than the other). Putting to one side all other relevantfactors, and all other relationship property, one response might be that X's sharereflects what he would have received if the inheritance had not been applied to thehouse ($500,000) plus the inheritance amount, giving him a total share of $1.5 million,while each of Y and Z receive $500,000. As between X and Y, and X and Z equalsharing is departed from and X's share adjusted, to the extent necessary to reflect therelevant exceptional circumstance. Y and Z share equally as between themselves.55 It might be argued that this is unfair to Z, as if Y had done similar work on another property forpayment, the payment would have been relationship property as between Y and Z. But the sameunfairness arises if X does work on his own separate property, which produces a gain for X: thatdoes not become relationship property, although payment for similar work by X on a third party'sproperty would have. These anomalies between the treatment of paid and unpaid work are alreadypresent in the PRA and are not peculiar to the multi-partner context.[97] These and other scenarios will need to be worked through by the courts if andwhen they arise. We are confident that the courts can arrive at workable solutions thatare consistent with the text and the purpose of the PRA, by applying the PRA asbetween each couple while having regard to any other claims to the relevant property.We have not identified any difficulties with this approach which are so fundamentalthat they would justify adopting a different approach that would be less consistent withthe policy objectives and principles that underpin the PRA.Conclusion[98] For the reasons set out above, the appeal must be allowed.[99] The Judge restated the question referred to the High Court by way of casestated as follows:56Does the Family Court have jurisdiction under the [PRA] to determine theproperty rights of three persons in a polyamorous relationship, either on thebasis of that relationship or by dividing that relationship into dyadic parts?[100] The difficulty with the way this question is framed is that it starts witha "polyamorous relationship", a concept that is not defined under the PRA, and moveson to ask whether property rights of three persons in such a relationship can bedetermined under the PRA on the basis of that relationship, or by dividing it into"dyadic parts". We think it is more consistent with the scheme of the PRA to askwhether, as between person A who brings a claim under the PRA against persons Band C, A was in a qualifying relationship (a marriage, civil union or de factorelationship) with either or both of B and C. If A was in a qualifying relationship withB, the PRA applies as between A and B. If A was in a qualifying relationship with C,the PRA applies as between A and C. The Family Court has jurisdiction to determineproperty rights of couples in a qualifying relationship. In the context of a polyamorousrelationship, there may be multiple such couples. The jurisdiction can be exercised inrespect of each such couple.56 High Court judgment, above n 1, at [3].[101] We therefore answer the question as follows:The Family Court has jurisdiction under the PRA to determine claims toproperty as between two persons who were married, in a civil union, or ina de facto relationship, and also in a polyamorous relationship.That jurisdiction extends to determining claims among three people ina polyamorous relationship, where each partner in that polyamorousrelationship is either married to, in a civil union with, or in a de factorelationship with, each of the other partners in that polyamorous relationship.[102] Costs in this Court should follow the event in the ordinary way. Although thisappeal raises a novel issue, the proceedings seek to vindicate private interests.[103] Costs in the High Court were reserved. Costs in that Court should bedetermined by that Court, in light of this decision.[104] The proceedings brought by each of Lilach and Brett can now be heard by theFamily Court. That Court will need to determine whether each of them was in fact ina de facto relationship with Fiona for the purposes of the PRA, and the duration ofeach of those relationships. If the claimed relationships are established, the Court willthen need to go on to identify the relevant relationship property, and determine theclaims to that property, as between the relevant couple(s) in the normal way.Result[105] The appeal is allowed.[106] We answer the question of law referred to the High Court as follows:The Family Court has jurisdiction under the Property (Relationships) Act 1976to determine claims to property as between two persons who were married, ina civil union, or in a de facto relationship, and also in a polyamorousrelationship. That jurisdiction extends to determining claims among threepeople in a polyamorous relationship, where each partner in that polyamorousrelationship is either married to, in a civil union with, or in a de factorelationship with, each of the other partners in that polyamorous relationship.[107] The respondent must pay costs to the first appellant for a standard appeal ona band A basis, with usual disbursements.[108] Costs in the High Court are to be determined by that Court in light of theoutcome in this Court.Solicitors:Doug Cowan, Auckland for AppellantsMcVeagh Fleming, Auckland for Respondent