Laws designed to allow same-sex and de facto couples to access the Family Court on an equal basis to married heterosexual couples may have unintended consequences, it seems.
The amendment inserted a new definition of “de facto relationship” in s 4AA of the Family Law Act 1975 (Cth):
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
(emphasis to s 2AA(5)(b) added)
The amendments have been dubbed “the mistress laws” by the Daily Telegraph, as the consequence of s 2AA(5)(b) might be that if a person has a second relationship outside of marriage, then the second partner may be able to claim for a share of the assets in Family Court proceedings. This could come as a shock to those cheating wives or husbands who think that they are protected by their married status.
The new laws will also render a whole range of pre-nuptial agreements void.
Same-sex couples definitely should have the same recourse to the law as heterosexual couples upon breakdown or the end of a relationship, particularly if they choose to formalise their relationship by registering it. But these new laws do not give either heterosexual or homosexual people a choice as to whether to formalise their relationship.
It seems to me that all this could have been avoided by instituting some kind of civil relationship registry whereby heterosexual and same-sex couples can register their relationships in a legally binding way. I don’t really understand the concern of religious groups; if it is a civil relationship registry, then it does not impinge upon the marriage laws chosen by their particular religion. People can still choose to get married within their particular religion according to the customs of that religion.
A particularly interesting question is whether these laws effectively legalise polygamy, as multiple partners may be treated as equivalent whether there is a pre-existing marriage or not.
To those politicians who rejected the prospect of a civil register on religious grounds – did you really want to sanction polygamy? Actually, come to think of it, the Old Testament and the Qu’ran are full of polygamy, so perhaps a tacit recognition of polygamy doesn’t concern the religious as much as a formal recognition of same-sex couples?
Ha, those unintended consequences, they’ll get you every time.
(Via Not a Hedgehog)
Update:
I’m not the only one to think that these laws effectively sanction polygamy. Meanwhile, Saint is seriously unimpressed with the new laws. (link to Saint now fixed).
Update 2:
Have a look at Marcellous’ excellent post on this issue. I wish I’d included it in my analysis when I initially wrote my post. My only excuse is that I think it was written two weeks before my son was born, and I was probably in the throes of false labour, so didn’t take it in properly at the time.
Marcellous also has some other posts which show the pitfalls of retrospectively untangling a relationship.
First, there’s the recent case of Whiting v Whiting, which is very messy indeed.
Secondly, there is Marcellous’ earlier post on a case, Quijarro v Robson [2008] NSWSC 818 which shows the problems which may arise where a de facto has a secret mistress. If A thinks she has a de facto relationship with B, but B in fact has a secret relationship with C on the side, does A still have a de facto relationship with B? Or is the only de facto relationship between B and C? This case involved a will where B died and did not leave provision for A, who thought she was B’s de facto. It transpired that B was having an affair with C. Accordingly, A could not establish that she had a de facto relationship with B. As Marcellous says:
[I]f you think you are a de facto but your partner has deceived you or you have been prepared to overlook what you see as mere lapses or deviations by the other person, you may really be nothing. You need to be legally married to be able to do that. That seems a very strange result indeed, since it means that, contrary to all the stuff that conservative moralists say and indeed some empirical observations about how many people actually live, the requirements for fidelity in a de facto relationship are in fact higher than those which apply as a matter of fact in a great many de jure marriages (as a matter of law, infidelity is irrelevant to these).
It may be that s 2AA(5)(b) was enacted to get around problems such as these.
60 Comments
The rich man’s burden is terrible. I imagine the trick is to refuse to marry and break up every 12 months.
I suppose some creative application of partnership law might work though.
Surely Subsection (2) parts b), f), h), and (maybe) i), taken together, would indicate a fairly high bar to deeming a non-married sexual partner to be in a de-facto relationship?
My non-lawyer reading of that is that if, say, a married person had a long-standing relationship outside that marriage, and that outside-marriage relationship had produced children and was a “serious” relationship, then they could be considered de-facto, as opposed to someone a married person had a six-month affair with.
However, it would seem that a genuine polygamous relationship would need to be treated as a de-facto marriage, which raises interesting points. Is everyone married to each other? Or only to a central member or central couple in the relationship?
Thanks for the inclusion in your blogroll!
I remember reading a while ago how slightly more modern-thinking (comparatively speaking) members of a certain Christian denomination in the US were engaging the same lobbyists who were lobbying for recognition same-sex civil partnership/marriage/union/etc to argue for some sort of recognition for polygamy (hence my quite unreasonable amusement at certain details of a certain recent vote in California, and speculation as to whether lobbying firms have a policy of ‘Chinese Walls’).
There’s certainly a lot of opportunity to be made out of the current kerfuffle about what constitutes ‘marriage’ and all the associated baggage that comes with it. However, regardless of the fact that this will inevitably mean more work for Family Law practitioners, I don’t, even in this current economic climate, for a minute regret my decision, very early in my career, not to touch Family Law with a ten foot pole!
Not just you, Theodora. I was a very green young paralegal when an aggrieved family law client attempted to kill the bloke who ran our firm’s family section with a very rapidly thrown ashtray over a decision that didn’t go his way. It bullsied the glass (and this was in one of those multi-story office blocks where the glass is bloody solid).
Our lawyer ducked. If he hadn’t, he’d be dead.
No family law for me, I resolved at that point.
David, I remember doing a case in Property Law (Green v Green (1989) 17 NSWLR 343) where this guy had a wife and two de factos, none of whom knew about the others. When he died, suddenly they all found out about one another. I think they all had kids too. One of the de factos had been promised a house, and she got it too. I think she earned it – the poor girl had been brought out from Thailand at the age of 14 by this guy and set up in a house as a sort of mistress. Apparently these things really do happen.
I suppose the problem is that people have different views of a relationship. The stereotype is that a man having an affair tells the other woman, “I love you, I’m going to leave my wife”. So from the woman’s point of view, it is a serious and committed relationship. But he may have no intention of really leaving his wife, and in his head, it’s not a serious relationship. Unfortunately, I’ve seen this happen with both genders. It could get very, very nasty.
Yes, this is why I also avoid family law with a 10 foot barge pole. Erk.
Legal Eagle, I’d double that barge pole to twenty feet if there was any danger at all I’d have to deal with stuff like that.
Part of the ambiguity here is, I guess, what people mean when they say “mistress”. It seems fairly clear that a six-month (or even two-year) affair involving meeting up in hotels for sex shouldn’t (and doesn’t?) qualify as a de-facto relationship, whereas the woman in Green v Green certainly should have got her house. (Brought over at 14? Really really creepy, Mr Green. Was he charged with child abuse, do you know?)
It seems to get blurry in the case you point out of a long-term “other woman” (or man) who was being strung along (or, more unkindly, was silly enough to believe that the other person was going to leave their partner for them).
I assume that subsection 4) means that precedents are not set by particular judgements in particular cases? If that’s the case, lawyers are surely going to be flying blind in every single case where the existence of a de-facto relationship is contested?
I happenned to listen to part of parliamentary debate on this, and one of the Liberal opponents of this provision was pointing at exactly this point.
It is true that the bar set in 2AA(2) are fairly high and require living together as a couple for quite a while. However a very legal wife is not required to be living permanently with her husband. This may create ambiguity, and indeed complex chains of relationships. I understand 2AA(5)b has some merit; however without proper qualification it leads to ambiguity and confusion. In this case a possibility of unintended consequences is so obvious that one suspect those that proposed it do not really care…
It may also put a huge burden on the court system…
I’m with Jacques on this one. It’s a mess for the non-married (I also agree that a registry for civil relationships would be a good idea instead of what we have at present). However, I don’t see the problem with the “Polygamy” law under current circumstances — I assume the use of it must already be quite common, such as when people have kids outside marriage. It’s also recognizing the fact that people do have relationships outside marriage. In this respect, if you are going to have the mess which we currently have for the non-married, I don’t see why those in serious relationships with the married should have no rights at all.
David, yeah, that case creeps me out majorly. Mr Green was dead by the time anyone found out about it – too late to charge. The amazing thing is that none of the wives knew about each other, and they had all been co-existing for years. The judge notes rather acerbically that Mr Green was a used-car salesman.
Yes, subsection (4) means that each relationship is assessed on a case-by-case basis, so there’s no precedent.
Boris, it’s interesting that the consequences of this have been raised in debate, and apparently ignored by the government.
Conrad, I’ve got no problem with recognising multiple relationships on some level – the law has done this for a long time (see the Green case mentioned above). But I’m still not sure that treating any multiple concurrent relationship as equal in all respects to a marriage is a good idea.
Hey, a pig flapped gracefully past my window just now, because I’m actually with Saint on this one, although not I suspect for the same reason. It’s one thing for a man and woman to agree mutually on a polygamous situation, although that is also hugely problematic, but I won’t go into that here. It’s quite another for a woman to find out towards the end of her life that her financial security in old age and her kids’ inheritance have been f#cked up by something she did not put up her hand for and on which she wasn’t consulted. Conrad says: “I don’t see why those in serious relationships with the married should have no rights at all.” Well, I’d say they have the right to slink away to wherever they came from and learn to get a life, and count themselves lucky if they don’t cop an earful from the man’s family about what a waste of space they are.
Helen: “It’s quite another for a woman to find out towards the end of her life that her financial security in old age and her kids’ inheritance have been f#cked up by something she did not put up her hand for”
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That’s a good point. You could use these laws cynically so the cheater comes out on top. Basically, the third party could make a claim to reduce assets before a divorce. I also don’t see why it is always the women that comes off second best — it would be good to look up the statistics if they exist — there are certainly many poor males left after divorces.
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Helen: “I’d say they have the right to slink away to wherever they came from and learned to get a life”
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I think this is a stereotype — people cheat on their partners for all sorts of reasons. It’s also both women and men that cheat. It also seems to ignore the fact that it takes two to tango (including the married person, who no doubt initiates the relationship in many cases).
And now the issue gets very complicated indeed, because while monogamous marriage is at the heart of the historic oppression of women, there is a mountain of evidence showing that monogamous marriage (and the ideals surrounding it) contributed considerably to the emergence of women’s rights in the developed world. Joseph Raz thinks the evidence for the virtues of monogamous marriage (including gay marriage) is so great that those who seek to undermine monogamy should not have their practices facilitated by the law. So nothing for the mistress or gigolo in his system — let the losses fall where they may.
Sunstein and Thaler argue that the whole institution should be privatised: private religious groups should be free to discriminate as to who they call ‘married’, but the state should be able to confer no more than a civil union on anyone as a matter of law. The ‘civil union’ rules are simply to be a regime of defaults designed such that weaker parties are protected. Leave the state out of it, they argue, and much of the angst is drained away from the debate.
I’m not sure that I accept Raz’s arguments in favour of monogamy (both heterosexual and homosexual), but he does have considerable research backing him, research of which I was unaware when I embarked on my thesis. It may be that some lifestyle modes are superior to others, at least in a utilitarian sense. Any policy needs to take this into account, especially when the state (ie the taxpayer) has to bear the costs of lifestyle failure.
I have read somewhere that polygamy leads to greater oppression of women than monogamy – need to look it up…
“Bad” Peter Saunders (who I prefer to think of as Good Peter Saunders, seeing as he’s with the CIS) did quite a lot of research on family structures. It makes a difference.
But all the research is basically comparing children raised by couples vs those raised by single parents. I don’t think anyone’s really looked at compound families.
A lot of these issue came up when Victoria passed its new Relationships Act (for registering de facto relationships) and more recently when it added registration of caring relationships to the scheme. In both instances, registration is banned for multiple relationships, including marriage. The stated rationale was that it’d be confusing to have people in multiple relationships.
The Scrutiny of Acts and Regulations Committee doubted that rationale, basically because there’s nothing to stop people being in multiple relationships anyway, so the issue will always be there. In the case of de factos, registration doesn’t create rights (but just allows easy proof of relationships. In the case of carers, registration does create rights (access to the state property dispute resolution scheme for couples) but it seems odd to say that a pair of carers can’t access that scheme just because one of them happens to be married to a third party…
You have to suspect that the real reason for the exclusion is that (contrary to the government’s claims), registration is meant to be a marriage substitute for gays and the government is concerned about polygamy. But why a mere scheme for public registration and dispute management – whether that scheme happens to be called ‘registration’ or ‘marriage’ – raises some of the social concerns about bad polygamous relationships is beyond me. The problems arise whether the relationship is officially recognised or not.
Can’t see how this law legalises polygamy in any way. It just deals with the breakup of defacto relationships, some of which might be polygamous. But should the polygamy disentitle a claimaint?
The thing I don’t like is that the application of these laws requires a hind-sight assessment of a relationship and the judge will many times come to a view that is a real surprise to at least one of the parties. The grey area must be huge, and that to me is a bad law.
“Well, I’d say they have the right to slink away to wherever they came from and learn to get a life, and count themselves lucky if they don’t cop an earful from the man’s family about what a waste of space they are”
That would mean the woman brought to Australia at the age of 14 in the case of Green v Green would not be treated fairly at all. Nor would someone in a long-term non-married relationship who was unaware that their partner was married to someone else.
I think it’s important to distinguish between oppressive, socially-enforced polygamy and non-oppressive, freely-chosen polygamy (which is real, if restricted to a quite small group of people). And since, when polygamy is oppressive, it’s mostly women who are oppressed by it, surely treating those women fairly when a polygamous relationship breaks down, rather than judging them for the relationship they were in, becomes more urgent?
Bang go long term affairs! They’ll now all end within less than 24 mths, which is the easy and obvious solution.
No different to men or women living in a full-time defacto situation, but who, for whatever reasons, are mindful of not wanting to splice and dice assets, so end things in the nick of time.
Babies: if a woman is receiving welfare she is required to claim child maintenance from the father already. If a man dies and has “other” children about the place they, or their parent, can claim make a claim on the estate. Etc, etc. If a baby is involved, I don’t see how this law changes anything. A child’s right to claim money has been in place for a long time, no matter if marriage or defacto or a one night stand.
As for a mistress or … what is the equivalent word for a man??? … trying to make a financial claim under this law, they would need to establish not only a relationship lasting more than two years, but financial dependence. Many people have affairs, but very few can afford to “keep” the object of their wayward affections. A few gifts or holidays or such, or paying the rent that one time, would not add up to a case of financial dependence.
It will give a few guys/gals pause for thought, I imagine, and certainly anyone in a long term affair, still in progress, might decide to revisit the value of their (previously) burning desires.
Caz, as far as I read the excerpt from the Act published here, two years is not a hard and fast rule – duration of the relationship is only one of the factors that a judge *may* (NOT *must*) take account of.
So a six-month affair where the partner with money had set the other one up in a house and promised marriage might well have more of a chance of being called a genuine de-facto relationship than a ten-year affair where all the two people did was sneak around hotels for sex.
Caz, isn’t it interesting that there isn’t a male equivalent of “mistress” (at least, not as far as I know). Perhaps the word “paramour” would do as a gender neutral term, although it doesn’t have the same ramifications of infidelity. I just looked at Thesaurus.com and it was no help.
David @ 19 – I think you’re right. It all depends upon the circumstances – 2 years is just a yardstick. I’d also second your comments about polygamy – it is the women who lose out as a result. If the first wife is the only one to get a bite of the assets, the subsequent partner loses out. If the subsequent partner takes a cut of the assets, the first wife loses out. This may be particularly problematic where the first wife doesn’t know about the subsequent partner. So we do have to be careful about hard and fast rules. Hence the horrible greyness of this area (as noted by Pedro).
Legal Eagle and Caz – re “mistress”. Yep, I’ve had to resort to some quite long-winded expressions in this discussion to avoid using the word “mistress”.
There’s always “lover” I suppose, but that doesn’t necessarily suggest infidelity either. “Toy-Boy” maybe, not it’s not really equivalent and is more demeaning than “mistress” IMO.
Fascinating what sort of gender-bias is encoded into language.
David – true, true, at least technically.
In the scenario you’ve provided – and I appreciate that it’s just an example – a person would be hard pushed to get such a case to court even if both parties were single. If one party is already married, all the more difficult to offer a convincingly huffy legal case over promises of marriage & a life time of support. Although I can certainly envisage it being worthwhile going for the house. Don’t know how compelling the case would be though, eg, establishing that one has become accustomed to a particular lifestyle, etc. Six months? Blah, get back out there and get a job!
Most defacto couples work this stuff out for themselves, divvy up the spoils in a relatively fair and sensible manner. (With or without children, but especially when there are none.)
Where affairs are concerned, only a tiny minority of relationships would involve significant financial involvement. All the same, this law will no doubt be given a good run sooner or later. Mind you, I’m sure some claims have already been made, successfully, without this law for support.
L.E – arrhh, paramour, of course, makes one amorous just to say the word. Unfair, isn’t it. As with spinster and bachelor, the latter trills with carefree happiness & conviviality, the former is dark, heavy, unsocial.
All I can find is recreant or gigolo, neither of which is a mistress equivalent.
If you think “mistress” connotes powerlessness I suggest you acquaint yourself with Chinese, Japanese, English, French, Italian, Russian, Spanish fiction from oh about the 7th century onwards.
Indeed, mistresses to monarchs and the like had/have great power. It’s a power intrinsically connected to the power of the man, but real nonetheless.
Posey – no one has suggested that mistress means or connotes powerlessness.
The dominant culture does, though, doesn’t it?
Taken from Blooming English by Kate Burridge (2002) at pages 58 – 59:
After having a bit of a think, I wonder if the fallout from the changes might be similar to what occured after the broadening of the categories of claimants under Testator Family Maintenance proceedings under the Probate and Administration Act – that is, a whole flurry of hopeful litigation and very interesting cases in the first few years, and then things settling down once the new parameters of the law were set (of course, again, one imagines that there will also be a similar blossoming of work for lawyers, but that is by the by).
Hmmm, no, I can’t agree with that Posey.
Not quite the right example, nonetheless, look at the vitriol still lavishly spooned all over Angelina Jolie. There aren’t enough mocha coloured kiddies in the world for her to adopt that will ever take away the stain of her stealing Aniston’s husband.
Sienna Miller is another current example. She has been banished from her social circle.
While neither women was, as far as we know, mistress status, they are still “the other women” and clearly judged to be ALL POWERFUL.
Indeed, had they been mistresses, the loathing and condemnation would be worse.
A true mistress, in the traditional (and powerful) sense, such as Richard Pratt’s young former mistress don’t attract the moral condemnation of the contemporary mistress, who is unequivocal branded a husband stealer / home wrecker / slut, or whatnot. In terms of social power, there is none, it is stripped away. Not so from the man, of course! Some traditions die hard.
Now, all of this singular condemnation of the women would tend to suggest that even the modern mistress is deemed to have untold amounts of power, after all, she is held to be fully responsible and fully accountable for both her own and a man’s behavior and choices.
So, in a morally warped way, the mistress has a great deal of power attributed to her, even though the average mistress in our era is almost certainly powerless, sexually used, emotionally abused, throws away her best child bearing years, and is deluded, rather than fulfilled, etc, etc.
The condemnation is not based in any reality of power or control, but social mores must be maintained, and the boundaries of morals have almost always been played out over women’s bodies, so it continues thus.
Sorry for such wandering, illogically laid out points.
This law will be like the song ‘short d&^* man’. You are thinking, this slightly contrarian idiot is going off the rails. But what I refer to is the phenomenon where lots of people, whether affected or otherwise, find it offensive but due to the potential implications of loudly complaining let it pass.
This is the job of whatever the federal equivalent of the scrutiny of acts committee is, and they appear to have failed, or been overridden.
In terms of whether or not there is a de facto relationship, there is some very interesting case law in the social security jurisdiction where yours truly has done a stint. From memory a key demarcation there was living under the same roof, however.
Search marriage like relationship in the AAT and Fed databases if enthusiastic.
Anyway, I digress… the problem is, none of us would like our partners to have an affair etc, but is the inherent risk of such part of the complexity of being human? Something that makes us work at our relationships, and feel real, live emotions like jealousy and relief?
I’m not sure that when lawyers have reduced relationships down to a combination of contracts and forensic tests that our lives will be richer for it.
Pattress
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Patress
Pateress
Lang, as a suggestion for a male version of mistress?
I like it, but I think it’s already been taken as a word. Apparently pattress means “the container for the space behind electrical fittings such as power outlet sockets and light switches.”
You learn something new every day in this blogging gig.
Oh well, fame is fleeting..
Lang, further thoughts – “pattress” was presumably intended to be derived from the Latin for father, pater? (shades of sugar daddies there). Then the female equivalent would have to be derived from the Latin for mother, mater…making “mattress”.
I suppose we could try “pistress”, but that just sounds like an attempt at toilet humour.
Sometimes English is a very frustrating language. I’ve always wondered why there are no phrases for the following:
Quelle dommage (“what a pity” just doesn’t have the same feeling)
Bon appetite (there’s just no equivalent)
Bon voyage (again, no equivalent)
Argmany – there will be some who use this law in the hope of making their lives a great deal richer, all because they happened to have sex with someone. It ain’t right, but there you go.
As Theodora suggested, there will, at some point, be a batch of ‘test’ cases, no doubt with much publicity, both same sex cases & mistress cases, and the boundaries will be sorted out.
“Pistress” – yeah, well, a tad too much like boy humour … maybe it’s appropriate.
Yes, all that crossed my mind and I considered this may be a lighter note on the subject. ( Excellent post and the quality of the,mine aside, replies is educational).
Cheating a little, well a lot,the OED and as far as time has allowed, Chambers, have no equivalent, and this applies in reverse where harbour-master, choirmaster and grandmaster (although one could have a grand
mistress,however there lies the problem, can a Lady have a grand………,.) have no feminine equivalent. There should be a law.
Pateress and Materess should be used in Legal jargon without delay. Much fun..
I don’t really understand the concern of religious groups; if it is a civil relationship registry, then it does not impinge upon the marriage laws chosen by their particular religion.
Easy. If society recognizes it then it becomes legitimate. I suspect a lot of religious people don;t have any really faith, that is, they don;t expect to actually live after death and be judged by God. It’s just a moral hammer. And they want to keep things the way they are.
This is a cowardly and stupid decision. It creates a minefield and pisses the religious lobby off anyway.
no one has suggested that mistress means or connotes powerlessness.
Nina Simone has.
Adrien, says, “no one has suggested that mistress means or connotes powerlessness”.
No , exactly,and as it should be.
Simone was a tough old girl, required a lot of sugar.
Adrien – I was obviously referring to this thread.
Besides, I’ve already noted that the modern mistress is mostly a deluded role, where women collude to be used, and there’s no happy ending.
Of course, before we get all silly about it, lets not forget that some long and happy marriages start out as affairs.
It’s difficult to make too many blanket statements, but on the whole, many a silly women provides sex and indulgence for many very happily married men. It has ever been thus.
I’ve voting for Pateress and Materess!
Let us now launch the new terms, Pateress and Materess.
*Kerching!* (that was me breaking a bottle of champagne against them)
Actually I’ve never understood why they break bottles of champagne on new ships. Seems like a waste of champers to me…
Not to mention those Grand Prix drivers who spray champers everywhere when they win… I’d at least be spraying it into my mouth.
“many a silly women provides sex and indulgence for many very happily married me”
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Has it ever occurred to you that many women don’t mind a bit on the side also and that it might be quite enjoyable for both? What’s silly about that? I also imagine too that a large number of the liasons are women married to other men, rather than 50 year old guy meets a women 20 years younger than him. In addition, who cares if it leads to something in the long term?
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On this note, there was an interesting study in the popular press last week looking at at the sex lives of 40-50 year women (of course all data in this area is suspect) who apparently have more sex than any time in their lives. So when you are thinking about who is cheating on who and why, the idea of men and mistresses is really a stereotype. It’s everybody cheating on everybody, no doubt for innumerate different reasons.
I’m with Sir James Goldsmith on this. When you marry your mistress you create a job vacancy.
SL, if WE get paid enormous amounts of filthy lucre for this ground breaking work (words),my BSB is available in an instant..
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I was that excited at the thought of all this wealth that I acknowledged SL,well, cross that out, I meant by newest best friend Legal Eagle..(anyone know a good lawyer,just in case;) ).
Conrad – yes, it has occurred to my pee brain that many married women also have affairs.
To take a very public example: Prince Charles and Camilla Parker. Nothing especially uncommon about two married people conducting a long and cherished relationship, very often with neither being at all inclined to leave their marriages. It’s not a novel situation.
Your random comment about older women having the best sex of their lives is irrelevant to your preceding comment (which equally has no statistical substance), notwithstanding that you’re trying to suggest both correlation and causation, that is, older women are having more and better sex because they’re all off having affairs. Of course, the study you refer to didn’t so much as hint at any such thing.
I think with royalty there’s a tacit understanding that they will have affairs because they marry for politics/bloodline – nothing to do with whether they are compatible, have anything in common, actually find each other attractive in any way…
Caz, here’s the article Conrad is talking about. I read it as suggesting middle aged women are having better sex because they are having affairs:
Indeed, indeed, I forgot about that assumption, and I did read about this study.
However, the affair aspect is an assumption in study based on anecdote. Much like so many studies, including the more robust variety, the researches take leaps in their conclusions that don’t necessarily have any validity.
(Just to illustrate, eg, a study that I read about yesterday, claiming that people enjoy their television viewing more BECAUSE of the commercials, even bad commercials. In fact, the only conclusion that could be drawn from the results was that people have heightened enjoyment when there are interruptions, exactly like when people stop a DVD and take a few minutes break, for example. In other words, commercials have nothing to do with anyone’s enjoyment. Yet, the researchers and the reporters took an unsupported leap anyway.)
The STD issue, from the little that I have read, doesn’t stem from older people having affairs, it’s the newly single who seem to be wantonly ignorant about disease & protection. That is, they’ve been out of the game so long that they jump back in as if things are as relatively innocent as when they were young and a shot of penicillin was a good fix for the worst of everything.
It might also be that more people are having affairs in that age group, but we should all remember to follow the bouncing ball with these pronouncements, instead of being gullible and unthinking.
Consider if the increase in STDs in the older age group is, indeed, because there’s a spike in extra-marital affairs: firstly, we have no evidence that such a spike exists, secondly, if it does, then an awful lot of unfaithful spouses would be infecting their marital partners (yes, almost all of them still get sex at home!), which, lets face it, would result in a corresponding spike in divorces. Many partners might forgive an infidelity – most marriages do survive – but a lot would find the humiliation of a sexually transmitted disease less forgivable.
So, possible, probable, plausible?
No evidence to hold it up.
That is what I was wondering too, Caz – correlation does not imply causation.
Helen, I don’t see pigs flying. You agreed with me on post on a similar issue at my blog some time back. I suspect I know your reasons, and I think they are (perhaps just as) valid.
“No evidence to hold it up.”
, and then all we would hear about is how middle-age man leaves wife for woman 20 years younger, or negative comments about the fidelty of the female (as was in your comment). Perhaps the real reality is that life’s one big swinger’s party for the over 50s — but who wants hear that? No doubt pensioners are at it too with all that spare time.
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Unfortunately, this is a problem with almost all gender research — people don’t answer honestly, so there’s very little real evidence on many topics (and presumably there never will be). The best you can therefore get in terms of hard evidence you can measure are correlated things. The alternative is people could give up looking at these things altogether (and what fun would that be ?
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I personally thought that the STD stuff wasn’t the best measure, all I think an even simpler confound was that the older you are, the more likely you are to have bumped into a disease by chance (including ones with few symptoms). It therefore isn’t surprising that older groups have higher rates of transmission than, say, 16-18 year olds.
Australia already has de facto polygamy. For example, if two lezzies have a child using the sperm of a gay male friend, and he is actively involved in the child’s life, there is not much difference from conventional understandings of polygamy.
Personally, I think there is a stronger case for legal recognition of traditional polygamy than there is for gay marriage. Polygamy has existed as a legitimate form of marriage perhaps even longer than the one chick-one bloke model. Polygamy is still legimate in many (if not most) parts of the world. OTOH, marriage between two people of the same sex has no track record whatsoever.
While polygamy remains illegal, Australia’s claim to be so multiculti is a crock.
JG, as always you have a unique perspective. You are right – there is a far longer precedent for polygamy than there is for gay marriage. I remember reading that the medieval Irish kings resisted calls by the Church to stop polygamy on the basis that if it was good enough for the OT, it was good enough for them.
A problem with polygamy that I can see in our present society is that a man has to have a lot of resources to sustain multiple wives (and multiple children). Therefore, this may have ramifications for social security – should a man be able to ask the State to support multiple wives if he himself is unable to do so?
You won’t find widespread polygamy even in societies which practice it – it is usually reserved for the elite or the rich. Even in Muslim countries which allow it, it is regulated – in Malaysia for example, men are supposed to provide a separate home etc for each wife.
Also study after study – even by Muslims about polygamy amongst Muslims, or by Mormons on Mormon polygamy (which was long ago discarded by ‘regular’ Mormon groups, etc etc) has shown it is of serious disadvantage to women and children.
What the men who like to think that polygamy is such a good thing forget, that it evolved in agrarian nomadic societies where men tended to get killed often so there was a gender imbalance. Doesn’t translate into modern societies. What men for example who like to think polygamy is such a wet dream forget that – apart from supporting multiple families, the more men who practice polygamy the greater proportion of men who will never have a wife at all.* For women it also works that the least desirable women usually find themselves as third, fourth whatever wife of the more undesirable men.
I couldn’t give a toss about multiculturalism. I have no desire to repeat history and go back to wife stealing etc etc. Or see Australia turn into the joke that is Britain. There are many many good reasons why monogamy works and sustains more stable societies.
BTW The OT never condoned polygamy. There were times when it was practiced by the ancient Israelites but it was regulated to protect women and children. The descriptions aren’t exactly of domestic bliss – more like trouble and strife (funnily echoed in modern reports of polygamy with favoured wives, ‘second class’ families etc etc.) A description in the OT is not a prescription.
(*actually China and India’s gender selected births coupled with preferences for males have also created a large group of men with no prospect of getting married. A big issue in some provinces in China where they number in their tens of thousands. They are not happy and some government officials see forced conscription as one option to keep them “occupied”. Yeah I’d like to see a pile of rabid Muslim men with no prospect of getting married living next door to John).
“A problem with polygamy that I can see in our present society is that a man has to have a lot of resources to sustain multiple wives (and multiple children”
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Actually, if you had a modern version of polygamy (i.e., where the women work — and probably very ancient polygamy too, where everybody had various tasks), it would be the opposite, since it would reduce the risk of low family income if any one member was unemployed.
“There are many many good reasons why monogamy works and sustains more stable societies.”
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People always say this and bring up various arguments for it, but is there any real evidence for it? There are already fairly decent gender imbalances in many places and also places that allow for polygamy, but none of them have ended up in widespread chaos because of it.
This thread makes very thought-provoking reading, and if I may say without being taken as rude, says some very interesting things about the law and it’s practioners. There seems to be a lot of time and effort being spent worrying about the minutiae of the clauses and sub-clauses but very little consideration given to the idea that it may well be that legislation such as this (of which this is a fine example), that causes much of the trouble in the family court. Is it not time that our law-makers woke up to the fact that the law has vitually no place in personal relationships. It is not possible to legislate for compassion, politeness, and decency. If the whole system of resolution is adversarial by nature, then in every outcome the must be, to some degree, winners and losers. tThe sooner the law-makers (and for that matter religious groups) but out of domestic relationships, that are by definition unique, the better off we may all be
@Petierla:
The law generally does not interfere in personal relationships for so long as the relationship is in existence. You can’t get a court order to make someone love you. When people go to law that usually coincides with a breakdown in the relationship – eg, domestic violence, rape in marriage (once legally impossible) or spousal maintenance. The problem is that while people are in relationships they trust each other or at least one of them (leaving polygamy aside for a moment) trusts the other. They are vulnerable to each other and they are not necessarily in a position (apart from threatening to bring the relationship to an end) to bargain with each other or protect their individual interests. One person can, for all sorts of reasons, end up with all the property. Classically, in heterosexual relationships, that was the man because of the better economic position of men in the public sphere. To say that the law shouldn’t be involved at all would mean that at the end of a relationship the loss should lie where it falls and the corresponding gains likewise, no matter how unfair that was. That would be a truly startling proposition. The question is really to what extent the law should intervene and on what bases.
Personally, I don’t really have a problem with the implicit recognition of polygamy. After all, (for example) you can lose out if your husband loses all his money at the casino or makes a disastrous business decision, so why shouldn’t you lose out if instead he has another partner who has claims on his property because of the way he has behaved towards her?
What I find deliciously ironic is how opponents of same-sex marriage have ended up throwing away the baby with the bathwater because instead of permitting same sex marriages they have ended up with a position which assimilates all de facto relationships to marriage. The alarming thing is that, because the laws apply by reference to when relationships come to an end rather than when they came into existence, the effect is retrospective – normally thought of as a very big no-no indeed.
Marcellous, you have answered Petierla’s question in the same way as I was intending to, but far more eloquently. Even if we abolished the Family Court tomorrow, the Courts would still have to arrive at some kind of mechanism of dividing up property, because to leave the property where it falls is unfair. Indeed, the Courts initially deployed the resulting trust and constructive trust to alleviate unfairness.
Your point about retrospectivity is very well made, and your recent post about Whiting v Whiting makes the point eloquently. Of course, there is always going to be an element of retrospectivity when you are dealing with relationship break down.
Another post you wrote a while ago about de facto relationships and wills shows the problems of the “mistress” scenario where de facto relationships are concerned – if one partner has a hidden mistress, then it makes it difficult for the other partner to establish that there truly was a de facto relationship. Perhaps, at the least, the new provisions will deal with that problem.
I do think that there is a difference between marriage and a de facto relationship. As you say in your post on the will case:
In a marriage, there is a binding promise to make a continuing commitment to one another which operates ex ante. Same sex couples do not have the option to enter into that kind of arrangement, and I continue to think that it should be an option for all couples.
I’m going to update this post to refer to your various de facto cases because I think they are well worth reading.
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[...] As a result of the amendments to the new s 4AA of the Family Law Act 1975 (Cth) (which I’ve discussed previously here) a mistress is almost a “constructive concubine”. Those provisions worry me, because [...]