Society has come a long way in its acceptance of relationships beyond a traditional marriage. The law has also been updated to reflect these changes. In 2002, the law governing property at the end of a relationship was amended to include unmarried couples who had been together for more than three years and same-sex relationships.
Society’s acceptance of other relationships continues to become more fluid. However, the law can only be stretched so far. Last month, the High Court was asked to determine whether parties to a 15-year polyamorous relationship could have their property divided under the Property (Relationships) Act 1976 (PRA).
L and B married in 1993. Six years later they met F. In 2002 F joined L and B to form a polyamorous relationship. The parties moved into a rural property owned by F. They shared one bed throughout most of the relationship.
In 2017 L separated from B and F. Not long after B and F also separated. The three had lived on the property owned by F for 15 years. B and L felt entitled to a share of the value of the property at separation. They claimed they were each entitled to a one-third share in the property.
At the end of a qualifying relationship, such as a marriage, the family home is divided equally. For B and L to be successful in their claim, their relationship with F had to be recognised as a qualifying relationship under the PRA.
A qualifying relationship is currently limited to a marriage, civil union or de facto relationship. A polyamorous relationship does not fit into these definitions. The High Court found the definitions of each of these relationships used language which limited them to two people only.
L and B were in a marriage. The PRA would govern their marriage, but they were not claiming against each other as it was F who owned the family home. L and B argued that they were both in de facto relationships with F for the purposes of the Act. The Court did not agree. The fundamental question to ask is “whether the parties lived together as a couple”. As both L and B were living with F as part of a threesome, they could not both be living with her “as a couple”. If more than two people could be in a de facto relationship, there would be no logical limit to the definition.
Where property is the subject of two contemporaneous relationship property disputes, the Court can determine a priority of the claims. L and B tried to argue by analogy that these rules could apply to their polyamorous relationship if the Court recognised it as three contemporaneous relationships:
- B and L as husband and wife;
- B and F as de facto partners; and
- F and L as de facto partners.
The Court did not accept this argument. Broadening the scope of the PRA to recognise relationships beyond a traditional marriage created an issue. A person could now be in both a marriage and a de facto relationship or two distinct de facto relationships. The relevant rules were designed to deal with the difficulties that arose in those situations. These rules were mainly focused on the problems that occur when one party dies, and two people claim they were in a relationship with them.
The Court was not prepared to stretch the PRA to include polyamorous relationships. An application of these rules to polyamorous relationships would create difficulties. Independent claims would have to be brought by L and B. Their separate claims would only include F and either L or B. This would result in two separate decisions in which the family home was divided 50/50. As F would be involved in both proceedings, she would receive her share twice, gaining 50% of the property. L and B would be left with 25% each. The Court found this was too different from the one-third shares they were seeking. It is also at odds with the policy of equal sharing that governs the PRA.
The Court recognised it might be hard to justify the exclusion of polyamorous relationships. However, they did not currently fit under the existing Act. It was for Parliament to update the law if they thought it was appropriate.
At the end of a long-term polyamorous relationship parties are not entitled to have their relationship property rights determined under the Property (Relationships) Act 1976.