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The rights of a 'mistress' in maintenance and divorce property settlements

Melissa Billett

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 Law 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.

For the purposes of this article we have referred to 'mistresses', however the same risks would apply to affairs had with men.

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 Act*. 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.

*  Family Law Act 1975

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Author's Biography

Melissa Billett is a Solicitor in the Family Law team at Watkins Tapsell. Melissa takes a practical approach in handling family law matters. Where possible she provides clients with sensible and cost-effective advice to assist in early resolution of matters. Melissa is a member of the Young Lawyers Family Law Committee and has completed her graduate certificate in Applied Law (Family Law) at the NSW College of Law.