LEGAL ADVENTURES OF THE CLARKE FAMILY
Chapter 3 - MISTRESS
Jill is sitting in the living room after dinner one day reading a book when she hears Jason’s phone ringing in the other room. She realises he must have left it behind as he is out for the evening and gets up to answer it just in case it is urgent. When she reaches the phone, she has already missed the call but a message pops up across the screen from a woman named Daphne. Curious, she takes a closer look at the preview, which says “I miss you”.
Jill stands there for a moment, confused as to what this could be about, when a thought suddenly dawns upon her mind that Jason could be cheating on her. As she ponders upon this thought, she feels herself slowly becoming outraged and upset, but forces herself to calm down and decides to talk with Jason first before assuming anything else.
When Jason comes home a few hours later, she casually greets him by asking “Who’s Daphne?”. He freezes, and looks at her in shock. He says
“What do you mean? I don’t know who you’re talking about.”
Jill looks at him, her heart sinking as she realises her assumptions may be true.
“Who’s Daphne? You left your phone behind today and she sent you a message.”
Jason’s face slowly turns paler. He responds sharply, saying “Did you read it?”.
Jill stares at him and responds “No I didn’t but I saw the first line. Who is she Jason?”
Jason doesn’t say anything, staring at Jill in mute shock. His reaction confirms Jill’s thoughts and she says coldly to him “She better not be thinking of getting any money from us. How long has this been going on?”.
Jason looks at her, and quietly says “two years”.
Jill looks at him in disgust, and leaves the room.
With changes to the Family Law Act (1975), de facto couples are now treated the same way as married couples. This means that married couples may be vulnerable to financial claims made by the mistress of the cheating partner.
The spouse of the cheating partner can potentially avoid vulnerability to such claims if they have a Binding Financial Agreement already in place at the beginning of the relationship between the original couple.
Q and A
Q: What counts as a de facto relationship?
A: A de facto relationship is defined in the Family Law Act (1975) as a relationship between two individuals who live together as a couple on a genuine domestic basis. The court also looks to other factors to determine whether the two individuals have a relationship as a couple e.g. the length of the relationship.
Q: My partner cheated on me and we are having a divorce. Do I get more on a property settlement since he cheated on me?
A: No, the fact that your partner cheated on you has no relevance in determining the property settlement as Australia has a ‘no-fault’ system, which means the court will ignore your partner’s conduct.
Q. I lived with my partner for 18 months before we separated. Does she have a claim for a property settlement as a de facto partner?
A: No, the relationship must be for more than 2 years.
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