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Get the icing – when your married lover wants to have their cake and eat it too!

Get The Icing – When Your Married Lover Wants To Have Their Cake And Eat It Too!

Do you have a mistress, a lover? Are you the paramour? Well they, or you, may just be able to make a claim for property settlement and/or spousal maintenance as a de facto under the Family Law Act.


Under Section 4AA(5)(B) of the Family Law Act 1975, a de facto relationship can exist even if one of the parties is legally married to another person or in a de facto relationship with another person

OK, so what is a de facto relationship?

In determining whether a de facto relationship existed, the Court’s enquiry will be whether: “having regard to all the circumstances, did the parties have a relationship as a couple, living together on a genuine domestic basis

To determine whether a relationship is a couple, the Court will have regard to factors including:

  • The duration of the relationship;
  • The nature and extent of a common residence;
  • Whether there is a sexual relationship between the parties,
  • The degree of financial interdependence and any arrangements for financial support between the parties;
  • The ownership, use and acquisition of property;
  • The reputation and public aspects of the relationship.

It is not necessary for one or all of the above factors to be present for the Court to find a de facto relationship existed.

The concept of “coupledom” was explored in the matter of Jonah v White where his Honour noted that it is the “merger of two lives into one”.[1]

In Moby v Schulter, his Honour discussed that the concept of living togetherdoes not require that a couple must live together on a full time basis”. His Honour went on to say that: “If one or both members of the couple may…be legally married…at the same time… it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship… [and in fact] there is nothing to suggest that it must be even as much as half the time”.[2] 

OK, I meet that criteria, can I make a claim?

To enliven the jurisdiction of the Family Court to make a property or spousal maintenance Order, the de facto relationship must have lasted for at least 2 years, or the parties have registered their relationship under a state and territory, or have a child together or have made substantial and significant contributions to each other. You only have to satisfy one of those criteria.

If the Family Court will exercise jurisdiction, what am I entitled to?

A person in a de facto relationship can seek an alteration of property, and/or spousal maintenance under Section 90SB of the Family Law Act 1975.

Case Study

Jonah v White concerned an affair which spanned 17 years. Mr White financially supported Ms Jonah. They had a sexual relationship but had not lived together at all. The relationship was so clandestine that the nature of the relationship between them was relatively unknown to friends, family, associates or the public and so did not indicate the “merging of two lives”.  In that case, the Court found that no de facto relationship existed.

If however, we changed the factual matrix of this case so that Mr White “lived” with Ms Jonah for a few nights each fortnight, and/or Mr White and Ms Jonah spent time with friends, family or business associates as a “couple”, it is possible that Ms Jonah would have been found to be Mr White’s de facto.

As you can expect, there are very limited cases which are brought before the Court, with many matters settling by negotiation before they are litigated (and presumably resolved by financial agreement to avoid the interference of the Court). For this reason, it is relatively unknown then, just how many lovers have successfully pressed an entitlement for property and/or spousal maintenance under the Act.

If you believe you are the de facto of a married person, or you are a married person who is concerned about the ability of your lover to bring proceedings against you, contact Catherine Henry Lawyers for a confidential discussion today.

[1] Jonah v White [2011] FamCA 221 at 67.

[2] Moby v Schulter [2010] FLC 93-447 at 140.

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