An extraordinary misappropriation of the rights and obligations of marriage
PHILANDERING husbands could soon be forced by the courts to keep paying for their mistresses after an affair ends. That is just one outcome set to arise from laws on broken de facto relationships that will take effect early next year, The Courier-Mail reports. Under the Family Law Act reforms, de facto partners together for two years will get the same rights as married couples to seek "spousal maintenance" claims. Maintenance, as distinct from child support, may be ordered when the other party is "unable to support herself or himself adequately" following separation.
But legal experts warn the amended Act - passed in the Senate on Monday - opens the definition of a de facto couple to wide interpretation. It prescribes a de facto relationship as an opposite-sex or same-sex couple "living together on a genuine domestic basis". Yet it also stipulates that a de facto alliance can exist even if one of the partners is legally married to somebody else or in another de facto relationship.
Veteran Brisbane family lawyer Paul Hopgood said the door was ajar for jilted lovers to seek maintenance orders. "I get high-profile people from around town saying, 'I'm having an (affair) with so and so. I wine and dine her and take her on holidays. I look after her and it's been going on for five years. But I'm safe - she hasn't got the key to my house'. "You don't have to live in the same house and under the same roof to be a de facto. A lot of people are living in de facto relationships and don't think they are."
Mr Hopgood cited a couple who might not share a home because of international business commitments. "If everything else is there, apart from the common residence, they've still got a de facto relationship."
In a further twist, the laws shape as a threat to the coffers of polygamist husbands. Queensland Law Society family law chairman Julie Harrington said: "In polygamy, you have only one marriage that's recognised, so you have wives two, three and four as the de factos. "At least those women will now have some rights which they otherwise didn't (have) under the Family Law Act."
Ms Harrington said the new laws could also create a debt nightmare for others, who now face the possibility of ongoing spousal support to a string of previous de facto partners.
With married couples, maintenance orders generally end when the ex-partner receiving the money remarries. De factos will come under the same rules if they marry a new partner. But no explicit provision exists in the legislation for maintenance payments to stop should a recipient enter a new de facto relationship. "Young people might have a series of short de facto relationships - and they're potentially up for paying spouse maintenance for several," Ms Harrington said. "It could be a big problem."
However, a spokesman for federal Attorney-General Robert McClelland said that in this situation the payer would be entitled to head back to the family courts to show "just cause" for discharging or varying the order.
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act aims to end discrimination in the treatment of married and unmarried couples after separation. Previously, Queensland's de facto couples could access the Family Court to resolve child custody issues, but property disputes had to be heard in Supreme or District courts. With the new laws, de factos can have all matters heard in a federal family law court. Claims on superannuation also are allowed.
In August, a Senate Standing Committee on Legal and Constitutional Affairs inquiry heard grave concerns about the reforms from family and religious agencies, including FamilyVoice Australia. FVA feared that by extending equal rights to de facto couples, marriage would be devalued and undermined.
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