Australia: 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.

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.