Does a "Mistress" have Rights to
Maintenance and Property Settlement?
As published in the St George & Sutherland Shire Leader
on 18 May, 2010.
For 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 longstanding affair as mentioned above and the mistress makes a
claim for property and/or maintenance.
For further information, please contact:
Melissa Billett – Solicitor
(02) 9545 7217
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