When Three Becomes a Crowd

How dispute resolution can help when the courts can’t

There appears to be a gradual change from so-called “vanilla” relationships to throuples or polyamorous relationships. These are not only causing a stir in society but a challenge as to how disputes over property rights may be resolved.

The recent High Court case Paul v Mead [2020] NZHC 666 is a good example of a case where the law could not provide a remedy because it was held that a polyamorous relationship was not recognised under the Property (Relationships) Act 1976.

The concept of more than two people living in a relationship was simply not anticipated by the legislators. While this Act has been amended to include de facto relationships and more recently, same-sex relationships, there is no provision for extra people.

Justice Hinton stated the issues were: “Does the Family Court have jurisdiction under the Property (Relationships) Act 1976 to determine the property rights of three persons in a polyamorous relationship, either on the basis of that relationship or by dividing that relationship into dyadic parts?”

Her interpretation of the legislation led to the answer being no on both questions. She did comment that the parties were not without remedies based on equitable principles and cited the well-known case of Lankow v Rose [1995] 1 NZLR 277 (CA), as an example where the law will develop appropriate remedies.

Anticipating that the law would develop in an appropriate case Justice Hinton said: “Development of the law informed by the principles of the Act may help those in polyamorous relationships and afford them some clarity as to their property arrangements pending any future legislative review.”

Family and relationship property disputes are often driven by emotion and complex family relationships. Usually time sensitive and fraught with financial implications for the parties involved depending on the outcome, there can be substantial challenges in simply managing the costs associated with bringing a dispute to court. Factor in the added delay in getting time before a judge and there is an access to justice issue. We all know this.

In her statement following her appointment as Chief Justice, Justice Winkelmann said: “Access to justice is the critical underpinning of the rule of law in our society: it is the notion that all, the good, the bad, the weak, the powerful, exist under and are bound by the law. That condition cannot exist without access to courts, and without the ability to obtain a just resolution of claims before those courts. Cost, delay and a lack of representation all can act as barriers to justice.”

The benefit, of course, for society is that there is the potential for precedent to be set, especially on issues such as the aforementioned case. However, it comes at a huge cost for the parties concerned.

Alternatively, while we continue to wait for a change in legislation, there are other options for throuples, namely: mediation and arbitration.

A key benefit already well established in Family Dispute Resolution (FDR) is that anyone who has a significant role in a child’s life can apply for mediation. It is not limited to legal guardians.

Not only does this mean that parties can quickly and easily access a dispute resolution service for care of children issues, it also means that all parents can make their own decisions for their family.

For a recent polyamorous family that participated in FDR, they came to their own agreement for their child, who was a preschooler.

By way of background, the family had been in a loving partnership for four years, with a biological father and mother. It was mutually agreed that they would all go their separate ways, with the father moving out of the area with his new partner and leaving the child in the day-to-day shared care of the two mothers. The father came and visited in the school holidays and stayed in one of the mother’s homes to provide consistency for the child.

In mediation, all consented to the non-biological mother to be appointed as an additional guardian. Agreement was also reached as to schooling and expenses.

By no means are these cases easy to mediate. There are many factors to consider – most importantly the welfare and best interests of the child. Fortunately, FDR allows 12 hours of preparation and mediation to occur so there is time to dig deep and talk through the complexities, and it’s a free (or heavily government subsidised) service.

Although different to FDR, mediation is equally accessible for relationship property matters for throuples.

A good mediator will assist parties through careful questioning techniques to recognise their own positions, interests and needs as well as the interests and needs of others involved in the dispute. The skill of mediators can help families find common ground and sometimes even create a new pathway leading to the restoration of relationships as well as agreement.

In Paul v Mead the court determined that there was no jurisdiction for it to divide property under the Property (Relationships) Act for more than two people.

However, a determinative process is still an option. Using alternative dispute resolution, parties can agree to have an arbitrator make decisions notwithstanding that the law has not yet caught up with this type of relationship.

This flexibility demonstrates that stepping outside of traditional court remedies has real advantages when the law is slow to catch up to changing models of families. The new expedited model of relationship property arbitration can provide a private remedy to accommodate these changes.

Rather than being caught up in the delays in the Family Court, parties can opt into a process which recognises different models of family relationships and achieves a result based on equity. The development of this model by experienced arbitrators who are Fellows of the Arbitrators’ and Mediator’s Institute adds real value because of their extensive judicial and arbitration experience.

New Zealand is not the first to develop this concept. The Scottish model known as FLAGS (Family Law Arbitration Group Scotland) is having enormous success by accrediting Family Law Arbitrators through the Law Society of Scotland as specialists in family law or following specialist arbitration training. They are providing timely, cost effective family arbitration services to parties, working with the courts. There is a lot we can learn from the services Scotland is providing.

When you boil it down, everyone needs somewhere to go when things go wrong. We are practitioners who provide pathways for people and if the court processes are unable to assist them then lets refer them to a place that can provide a way forward. The outcome may be even better than a court process.

                       

Keri Morris

Keri is the Manager ODR at the Domain Name Commission She has many years of experience in dispute resolution and is passionate about creating opportunities for agreement. Keri is a Fellow of the Chartered Institute of Arbitrators UK and a Fellow of Arbitrators and Mediators Institute NZ. MORE >