Have you been faithful?
It’s a question many married couples must face every day and 99% of those that do, will agree that it is a difficult and painful topic wrought with emotional tension.
It is one of those taboos that is not spoken about except in hushed tones on golf courses or ritzy nail salons.
We all know it happens and most understand the emotional pain it can cause.
However, what most don’t understand is the legal and financial pain it can bring as well. Forewarned is forearmed and this article aims to protect your interests before trouble appears.
Now, most of us know the difference between “de facto” and “de jure” marriage under Australian Family Law.
For those that don’t, please let me take you through some definitional jargon, necessary to understand the arguments which follow.
“De Jure” marriage is just a fancy Latin term meaning “legal” marriage and is entered into when you sign a marriage contract and become legally married (whether under God in a Church or at a Civil ceremony) as evidenced by a marriage certificate.
“De Facto” marriage is also just another fancy Latin term for “in fact” marriage. That is to say, it is a legal fiction under Australian law whereby even though you are not legally married (i.e. de jure), you don’t have a marriage certificate but the law says that ‘you may as well be’ and ‘deems’ you to ‘in fact’ be married (i.e. de facto).
For lovers of precision amongst you, another, arguably better, name for this would be “implied marriage” and it is also known as a “common law marriage” for obvious reasons.
Finally, the legal definition of “marriage” under the Federal Marriage Act of 1961 (amended in 2017)
is “the union of 2 people, to the exclusion of all others, voluntarily entered into for life”.
This is where the law becomes interesting because it seems that in Australia, there are two ways to get married.
One is to drop to one knee with a ring; make promises before gathered witnesses (and God, if that’s your thing) and by those means announce to the world you are a “couple, to the exclusion of all others, for life”.
However, Australian law provides a second way, a loophole if you will, to get both the benefits and burdens of marriage without having to conform to the legal definition of marriage.
This second way, the ‘de facto’ way, involves none of the formalities of de jure marriage and essentially means that if your relationship fulfils certain criteria the law says “Ha! Got you! You are now “deemed” to be married”.
In a de facto marriage spouses enjoy the same rights and have the same obligations as if they had voluntarily decided to make certain promises to each other before a priest or celebrant, in front of witnesses and signed a marriage contract between them to that effect.
So far so good, nothing particularly controversial in the above, which is just fact and passes no judgement on the 2017 amendments to the definition of marriage in the Federal Marriage Act of 1961.
Rather, I wish to focus your mind to the more byzantine effects of our Family Law and thereby clarify the title of this article for you.
To recap: under the Federal Marriage Act of 1961 marriage is defined as:
- A union of two
- To the exclusion of all
- Voluntarily entered into for
De facto marriage arguably omits the third limb of that definition, but it is generally thought of as “a union of two people to the exclusion of all others”.
I think here, it may be important to make the Australian reader aware, that no European country except for Britain and, to a very limited extent, Ireland recognises common law / de facto marriage.
Moreover, most states in the United States of America have long ago abolished common law / de facto marriage with only a handful of states still maintaining some semblance of this fiction.
What is the reason for this lack of popularity?
The answer is mostly to do with the laws on bigamy and polygamy. Arguably, the starkest example of the unintended consequences of well-meaning de facto laws is in their interaction with Federal and State laws relating to bigamy and polygamy (having more than one marriage partner).
Whilst polygamy (having several marriage partners) is not expressly illegal it is illegal by definition.
This is because, by definition, you cannot have a polygamous marriage without bigamy (being married to two people at once), which would make you guilty of a criminal offence.
Indeed, section 94 of the Federal Marriage Act of 1961 makes bigamy a crime punishable by up to 5 years imprisonment.
In Queensland, under s 360(1) of the Queensland Criminal Code of 1899 a person is guilty of a crime if: “married, goes through the form of marriage during the life of his or her wife or husband and is liable to imprisonment for up to 7 years”. The same is true in New South Wales and other states and territories.
Therefore, the reader could be forgiven for thinking, given the weight of Federal and State legislation and the jail time involved for the breach of such legislation, that no man and no woman may be married to more than one other man or one other woman in the states and territories of Australia.
Well, not exactly so, says the Federal Circuit and Family Court of Australia and judgements are regularly handed down that imply that people can indeed be “married” to multiple partners.
The classic example where this can directly affect you and potentially cost you a lot of money is in the example of the cheating spouse (either man or woman) who ‘maintains’ a lover outside of her de jure marriage.
There is abundant caselaw to say that both a de facto partner and/or a de jure partner can apply to Court for a division of assets.
It is not just the de jure wife or husband that has a claim on her/his husband’s/wife’s property, but also any number of extra marital affair partners (of opposite or same sex) who may apply to Court and be entitled to a property settlement, provided they can prove the elements of having been in a “de facto” relationship with the husband or wife.
Moreover, this can happen all at once and in a coordinated way!
Makes you think, huh?
So, apart from ‘don’t cheat on your partner’ what is the lesson?
- Be proactive! Speak to your lawyer (confidentially) to see whether your extra-marital partner qualifies as a “de facto” and to what extent they may have a claim on your marital assets.
- Put a Binding Financial Agreement into place with your extra-marital partner which considers your de jure husband’s or wife’s rights and entitlements.
- Use legal planning tools such as trusts, loans and Binding Financial Agreements, to prepare for the legal consequences of your husband or wife finding out about your extra-marital affair(s),
At Seraphus we do not judge you!
We simply try to make sure you are legally protected whatever your life choices may be. Enquire with us now.
Mr. Mills J. Kirin
L.L.B. (Hons.), BComm. (Hons. 1st Class) (UNSW)
Mills started his career as an academic analyst of systems and in particular, systems of information. This experience led him to study law and ultimately an international career in investment banking, leading multi-country teams of lawyers on large international transactions in the emerging markets of Eurasia. Mills spent 20 years building the perfect life and had a wife a dog and nice house in a leafy suburb of a major European city.
Then came the divorce and the unravelling of what had taken two decades to build, which ultimately had the positive effect of bringing Mills home to Australia, where he uses his extensive experience as a cross-border negotiator to help men and women navigate the emotional and financial stresses, challenges and disappointments of separation and divorce.