Does a ‘Mistress’ have rights to maintenance and property settlement?

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financial-abuseFor the purposes of this article we have referred to “mistresses”, however the same risks would apply to affairs had with men.

New de facto laws came into force on 1 March 2009. The new laws declare that de facto couples will be treated in the Family Court in the same way as married couples.

As a result of the changes to the law, there is a risk that cheating spouses may leave themselves and their partner vulnerable to claims by mistresses for income support and/or a share of the assets of the marriage/relationship. This is particularly so if a child is involved.

In order to make a claim the mistress must prove that a de facto relationship existed. A de facto relationship is defined under the new legislation as “A couple living together on a genuine domestic basis”. The definition has caused great deal of debate.

There is a real risk in circumstances where a cheating spouse has had a longstanding affair with someone other than their current spouse, during which they have supplied the mistress with financial support and/or accommodation without the knowledge of their spouse or had a child with their mistress, that the relationship with the mistress would be considered by the Court to be a de facto relationship within the meaning of the Family Law Act (1975). In these circumstances the mistress may be eligible to claim a de facto relationship existed and therefore claim property and/or maintenance.

The new laws not only make the cheating spouse vulnerable to these potential claims from their mistress but in the absence of a Binding Financial Agreement may also affect the current spouse.

A Binding Financial Agreement entered into at the commencement of a relationship can potentially protect the non cheating spouse from a claim if in the future a party has a long-standing affair as mentioned above and the mistress makes a claim for property and/or maintenance.

The main objective is to remove same-sex discrimination from the Family Court system, but they have left the door open for a raft of de facto relationship claims.

The laws declare that de facto couples who satisfy basic criteria – such as being in the relationship for at least two years – will be treated in the Family Court in the same way as a married couple. It also applies to same-sex couples.

The laws will change the way property is divided by enabling the court to consider the “future needs” of partners, as it does for married couples.

Men or women who have a second relationship outside a marriage are now liable to legal action in the Family Court should the second partner decide he or she deserves income support or a share of assets. This is particularly the case if a child is involved.

As a result A CHEATING husband has paid his ex-lover more than $100,000 under Australia’s new “mistress laws”.

In the first known case of its kind in Australia, the Melbourne businessman was sued under changes to the Family Law Act which give rights to people in de facto relationships and same-sex marriages.

Legal experts say the case, prompted by the end of an affair of more than 20 years, will strike fear into the hearts of philanderers nationwide.

The woman, who has not been named for legal reasons, said not only did she deserve the money, but others should follow her lead.
A mistress wanting maintenance or a payout had to prove they had a long-term relationship, a sexual relationship, financial dependency, a commitment and a public recognition of the relationship.

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Categories: De Facto, De Facto Relationship, estoppel, Family Law Act 1975, Pre-Nuptial Agreement, Relationship
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