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"Marriage Is The Tomb Of Love" - Casanova

This classic quote featured in Casanova’s fabled Histoire de ma vie (“History of my life”), still sparks as much controversy as it did back in 18th century Venice. Though modern day Casanovas are rarely exiled or imprisoned (unlike Casanova himself), there is still passionate social debate as to what can be classed as a de facto relationship.

However in the legal world, the family law provides instruction on property settlement for married and de facto parties. Except for time limits, roundly the same assessment rules apply. This means that all the usual ingredients for property settlement work much in the same way regardless of whether the parties are married, but so long as they have a de facto relationship.

But did you know the law also provides for those "Casanova-esque" relationships. By this we mean where, one party has more than one relationship going on at the same time – married – de facto – kids or no kids. This is not common, but it happens in modern Australia, and when it does it's usually men playing the role of Casanova. So what about the poor “mistress” or to a lesser extent, the male-mistress “toy boy”? Do they have property settlements/spouse maintenance entitlements? Yes they do.

Courts can now make awards for mistresses or toy boys who are outside a marriage or relationship, as long as they satisfy the court that they themselves have a proper de facto relationship with the other party (even co-existent with a separate relationship). This applies equally to same sex couples.

So, if a claim is feasible in these circumstances – what is required to be proved? In these cases Judges drill down to the detail of the relationship i.e: What was the duration of the relationship, how did the parties present socially, was the relationship secret/hidden/clandestine – or was it public? Were bank accounts shared, insurance policies recognised, assets mixed, or did the parties keep their assets separate or apart? There are other ingredients and features that can demonstrate a true alternate relationship that pass the legal test of “coupledom” such that there is a merger of two lives (though in an alternate relationship). The depth and texture of such a relationship has been examined both at Trial level and in a Full Court Appeal environment in recent cases such as Jonah & White [2012] and Gissing and Sheffield [2012].

Each case is unique and turns on its own individual circumstances. It must be remembered that although a relationship may be different, it can be just as valid.

A staggering 48% percent of couples break up. Even though relationship breakdown is almost an even money bet, very few matters are finalised through adjudication of a judge in a trial or appeal setting. In fact over 97% of settlements regarding children or property are resolved by mutual agreement with or without court. If this applies to someone you know, it is apt to remind them to "keep calm and carry on" and it is always best practice to seek proper legal advice from a solicitor.

Chris Barron

COLLAS MORO ROSS

Collas Moro Ross are a prominent Gold Coast firm that have been serving the community since 1951.


They are the honorary solicitors to numerous organisations that support elderly people such as Gold Coast Legacy and are highly experienced in providing expert advice in areas affecting seniors such as Relationship Breakdown, Powers of Attorney, Wills and Estates Planning, entering Retirement Home contracts and preventing Elder Abuse.


Call Chris now to ask about any questions you may have on this article (07) 5539 9099.

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