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
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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