O Mistress Mine!

By Legal Eagle

I was fascinated to see that the first case under the new s 4AA of the Family Law Act 1975 (Cth) has been settled out of court. According to the recent article in the Herald Sun:

A cheating husband has paid his former lover more than $100,000 under Australia’s new “mistress laws”.

In the first known case of its kind in Victoria, the Melbourne businessman was sued under changes to the Family Law Act – which gives rights to people in de facto relationships and same-sex marriages.

Legal experts say the case, prompted by the end of an affair of more than 20 years, will strike fear into the hearts of philanderers nationwide.

The woman, who has not been named for legal reasons, said not only did she deserve the money, but others should follow her lead.

“I gave him the best years of my life,” she said.

“He got a lot of relaxation away from the stresses of his business life. When he came to me he did not have to worry about business.

“And I provided him with a lot of moral and emotional support.

“So this is also about giving our relationship a validity. It is a recognition that I have added something of value to his life.

“Now I am beginning to come to terms with life again. The money provides me with a security in my later years.

“This law has made a difference for me, so hopefully it will make a difference for others like me.”

I am increasingly thinking it would be good to introduce a kind of contractual notion of relationships, so that the parties’ expectations could be set out at the outset of the relationship, and that the parties could plan what happened if various eventualities arise. SL first drew this idea to my attention with Richard Thaler and Cass Sunstein’s proposal for contractualised marriage in Nudge (2008). A marriage-as-contract sounds like a radical proposal in a society with Christian history, and indeed, it was the Christian church which made marriage a state sanctioned arrangement rather than a private contractual arrangement. I know that when I first saw a ketubah (Jewish marriage contract), I was intrigued – to this contract lawyer, it seemed like such a sensible way to arrange one’s affairs. I have since discovered that many other societies had a notion of marriage-as-contract.

As the law presently stands, the difference between married relationships and de facto relationships is being broken down. In the former case, the parties make a conscious decision to formally commit to one another in law, but in the latter case, the parties do not formally commit to one another in law. If a couple gets married, there is an act which means that both parties signal their intentions to one another – that is, that they will support each other financially and emotionally, and that they will support any children of the relationship. However, if a couple does not marry, there is no moment where the parties are forced to state what they intend. So each party could have quite a different view of what the relationship entails. And then when the relationship breaks down, there’s a terrible mess. Even within marriage, there is usually a terrible mess upon breakdown, and family lawyers work for months or years, trying to work out who gets what (who cares for the dog, who gets the kids, what happens to the house etc).

One sees this all the time in the constructive trust and resulting trust cases. The simplest scenario is that A buys a house in his name, but both A and B live in the house. Both A and B contribute to the upkeep of the house, or perhaps A pays the mortgage and B pays the bills which allow A and B to keep living comfortably together. Then A and B break up.

A says, “But I never intended B to have a legal interest in this house! If I had intended B to have a legal interest, I would have registered the title in both our names!”

B says, “But I always thought the house was for the use of both of us, and I contributed to the bills and the upkeep of the house on that basis! If I’d have known that I wasn’t getting any part of the house, I wouldn’t have paid those bills! And I sure wouldn’t have put in all that back-breaking effort painting the front fence!”

Prior to the introduction of legislation, the courts typically dealt with this kind of scenario by giving B an equitable interest in the house. So A would hold his legal title on trust for himself and B in certain proportions. The proportion B gets depends on the kind of trust imposed. There’s a whole heap of ways of working out how to divide up the assets. The common intention constructive trust gives the parties an interest in the proportions which the parties expressed at the time (so if one party said at the beginning of the relationship, “This house is as much yours as it is mine”, that’s an intention to share 50/50). The resulting trust gives according to the parties’ contributions to the purchase price (on the rebuttable assumption that B would not have intended her contribution to be a gift to A). The unconscionability constructive trust gives according the parties’ contributions to the family budget (typically financial, but sometimes also other contributions). The unjust enrichment constructive trust assesses to what extent A has been unjustly enriched by B’s financial contributions and labour.

So basically, with the trusts, the court looks at the behaviour of the parties, and tries to work out objectively from that behaviour what a fair division would be. If the parties behave in a way which indicates that they treat the property jointly in some sense, then the likelihood is that B will get a proportion of the interest. The behaviour may be consist of an expressed intention, but it may also consist of evidence as to how the parties arrange their financial affairs and practical contributions to the household.

The thing is that of course, the courts are trying to guess the intentions of the parties once everything has gone pear-shaped. So of course A will say, “I never intended B to have an interest!” and B will say, “But A told me he’d give me a share!” Thaler and Sunstein call this the “self-serving bias” problem – when a relationship breaks down, people tend to see things differently, and think that they were entirely in the right, and the other party is entirely in the wrong. We all suffer from this. As Thaler and Sunstein point out, after a World Cup match between Brazil and Italy, ask the fans from each country in whose favour the referees were biased, and the answers will be quite different.

And the other thing is that it is likely that at the outset of the relationship that the parties never turned their minds to what would happen if it all crashed and burned. Thaler and Sunstein point out that almost 100% of couples are certain or almost certain that they will not divorce personally. Conversely, people are very good at anticipating the divorce rate of other couples. The take home point is that we are terrible judges of our own chances of relationship success, and we all like to think that our relationship is a stable one.

Even in the less messy situation of a two-party relationship, there are real advantages to making the parties think about the ramifications of their relationship in a legal sense before the relationship breaks down.

The advantage is that parties know where they stand from the outset, and they can plan ahead. Then, as a private agreement, there’s also no need for the government or the church to sanction it – so same-sex couples can agree to form a marriage if they so wish, and it’s really no one else’s business — which is exactly how I think it should be. As it stands at the moment, it is almost impossible for parties to work out what will happen if they split up (even if they are in a de jure marriage). When I married, I did not make a prenuptial agreement because I did not want to think about the relationship into which I was about to enter as having an end. I believed then (and still believe now) that it is a relationship which will continue strongly. However, if the relationship itself arises out of the contract, it is not nearly so negative. The contract creates the relationship itself, rather than just providing for its end. This way, it’s a lot less pessimistic than a prenuptial agreement which merely provides for failure. And it focuses the parties’ minds on what they want out of the relationship in a pragmatic way. There’s no finding out about potential differences when it’s too late.

Of course, as Thaler and Sunstein point out, it would be necessary to have an effective set of default rules. Human nature being as it is, you need to catch those who didn’t want to think about relationship breakdown, or those who never turned their minds to it all properly until it was all too late. Thaler and Sunstein say at 222:

The result of all this is to leave most people vulnerable to the vagaries of chance – and to a legal system that has an astonishing degree of uncertainty. When prenuptial arrangements have not been made, we believe that the relevant rules should nudge the outcome in a way that will help the weakest parties – usually women. Typically, a woman’s economic prospects fall after divorce, whereas the prospects of the man increase. It makes sense to adopt default rules that insure against the most severe kind of loss.

But, in keeping with their ‘libertarian paternalist’ ideals, Thaler and Sunstein would allow parties to negotiate around the default rules if they so chose, even if this led to a situation where one party was massively disadvantaged – so long as the party who was disadvantaged freely entered the agreement and was not in a circumstance which would vitiate consent. This may mean that we would have to enforce contracts where a woman has agreed to forgo economic benefits or the like. Nonetheless, rather than outlawing the contract altogether, Thaler and Sunstein suggest using the tax-and-transfer system, as well as other parts of contract law, to counterbalance any unfairness.

I also wonder if we need a kind of default for de facto relationships. Again, in Roman times, people who had cohabited continuously for a year were deemed to be in a de facto marriage. Sometimes, a partner would move out of the de facto home just before the year was up to symbolise that he or she did not intend to make the relationship binding. If we had something similar to this in our law, there would be less confusion about the status of a relationship. Each party would be aware of the legal consequences of moving in together, and if one party suddenly moved out, their lack of commitment to the relationship would be perfectly visible to the other.

Of course, there’s a whole enormous layer of difficulty when one gets a mistress-type situation like the one mentioned in the article. The nature of a mistress is generally that the wife doesn’t know about her existence (although this is not always the case). So the wife may find the assets which she has jointly built up with her husband suddenly reduced by a substantial amount because her husband is forced to provide for another woman about whose existence the wife was unaware and to whom she did not consent. But then, the mistress may provide the man with love and support in an expectation that she will be supported (and indeed, in the instant case, she was financially supported by the husband). Incidentally, I’ve used the same gender scenario as the case (wife wronged, man cheating, female mistress) but it could equally well happen in different gender combinations. It’s just that there aren’t any words for other gender combinations. As I’ve said before, it is interesting, isn’t it, that there’s no word for male “mistress”?

Essentially, what has happened in this case is that the court has imposed a “constructive concubinage” on the parties to the case. (Ooh, I do like that phrase). When you see the word “constructive”, I’m tempted to think you should reach for your metaphorical gun… As I said just the other day, I do think Megarry-VC got it right when he said the word “constructive” is ‘an unhappy word in the law’ because it ‘seems to mean ‘it isn’t, but has to be treated as if it were,’ and the less of this in the law, the better.’

A concubine is a woman who has a legal relationship with a man, but this relationship is typically of lesser status than a wife. Concubines arise in highly stratified societies where persons of certain rank cannot marry people of a lower rank, but the parties want some kind of legitimate relationship which recognises their commitment. There need not be a primary wife, but sometimes there is a primary wife and then a string of concubines.  A concubine can be distinguished from a mistress because she has some limited rights of support from the man, and her children are publicly acknowledged as the man’s, although they are generally of lower status than any children of any wife. It may sound like it’s a bit of a rum deal, but historically, women entered into concubinage because it provided at least some economic security for the woman involved (more than if she was simply a mistress). The important thing is, however, that if there is a wife, the wife has to agree to her husband having a concubine. So the wife knows all about it, and is aware of the concubine’s legal rights. The concubine is also aware that her claims upon the husband’s estate are less than the wife’s.

Of course, as discussed in my post on polygamy, generally only well-off, high status men can afford to have more than one wife (or a wife and concubine/s). I do find the question of whether polygamy should be allowed at all to be a difficult one, as I mentioned in that post. But if the polygamy is contractually arranged, some of the difficulties which may arise if there is a breakdown will be sorted out.

I think it’s far fairer if the man has to ‘fess up to his wife if he wants a mistress, and a long-term mistress should be able to demand that the man recognises her legal rights. This case would have been so much easier if the man had been forced to openly recognise the consequences of his actions at the outset of the relationship rather than at the end when it all ended. As the law currently stands, one woman loses out – either the wife (who likely thought she was solely entitled to the family wealth) or the mistress (who thought that she was going to continue to be supported by the man).

[Again, I use the genders of the parties from the case, but it may be that there are cases where a woman takes a male concubine, or a married man takes a male concubine, and so forth. I understand that in Roman times, a male concubine taken by a man was called a concubinus.]

If we are going to recognise “constructive concubines”, I think we should actually make some provision for them to make contracts of concubinage rather than imposing concubinage on the parties ex post facto. At the moment, people can live together for years without the status of the relationship being clear, particularly when there are mistresses involved. You think I’m kidding here? Have a look at Quijarro v Robson [2008] NSWSC 818, which Marcellous brought to my attention a year ago. It’s another case involving a love triangle (or indeed, a love nonagon – the man in the case seems to have had many relationships at the same time). The case arose when the man, Mr Quijarro, died without making a will, and Ms Robson claimed to have been his de facto. It seems that Ms Robson and Mr Quijarro had been living together, and were business partners. While they were in a relationship, Mr Quijarro seems to have relationships with numerous other women, and later formed a relationship with another woman, Ms Burton. A great deal of evidence was raised about who slept in what bed and with whom, and whether various relationships were still sexual in nature or committed. In the event, Windeyer J concluded as follows at [45] – [46]:

…The defendant said that she did not know that the person, Buda [Ms Burton], was a woman until Rita told her that. She thought, she said, that this person was some sort of male spiritual guru. Although there was really no cross-examination on this I find this evidence difficult to accept. The defendant knew that the deceased was not always faithful to her. She knew that he went around with other women. I have found that she knew of the relationship with Mrs O’Brien and she knew of past relationships with women called Florence and Deborah. She said she was concerned about his continuing relationship with Deborah. It is unlikely that once the visits extended to a few days every two weeks that the defendant could have thought that they were to visit a male masseur and spiritual friend. But this does not really matter as one party can end a de facto relationship. Thus the question has to be decided whether the relationship of the deceased with Ms Burton was just a dalliance within a de facto relationship or whether it was more and ended the relationship of living as a couple.

It is an extraordinary relationship where a man can share a bottle of champagne by candlelight in bed and have sexual relations with one woman on the morning of his trip north to visit another woman and yet will die the next day in bed with that other woman to whom he had proposed marriage and with whom he has discussed a marriage date to take place some months later. Strange as it is I am of the opinion that whatever commitment there was to a joint life as a couple by the defendant, there was no such feeling or interest by the deceased at the time he died, who by then used the defendant as he wished and did as he wished.

Marcellous makes the following observation:

[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).

Update – 10 November 2009: Although as Marcellous notes in comments below, the decision in Quijarro might be quite different under these new provisions. Perhaps the judge would have to split the assets between the children, the wife and the four or so women with whom the deceased seemed to have had relationships. Messy indeed. I wonder how much would have been left at the end of that.

If Mr Quijarro had had to enter into a contract with any of these various ladies, then they would have known where they stood. It would not have mattered if he was cheating with another woman. Under Roman concubinage law, I understand a concubine did not have a right to the man’s estate in any case, unless the contract still had time to run, in which case she would be paid out. Mr Quijarro was married, and remained married until the day he died, and in that case, the wife would have the primary right to the estate (even though she clearly no longer lived with him or had a relationship with him). If Mr Quijarro wanted to change that situation, he would have had to make a will or enter a contract specifying this.

From a rule of law point of view, it is obviously much more preferable for people to act according to a legal system which is predictable and known. Presently, people are not aware of their obligations or even their legal status until it is all too late, when the court imposes a status upon them or tells them that they do not have the status that they thought they had, as the case may be. Of course relationships breakdowns and infidelities are always going to be difficult, but if the parties have been forced to turn their minds to it at the start (or know what the default outcomes will be) then things will be a lot easier.


  1. Posted November 10, 2009 at 7:33 pm | Permalink

    My post which you quote may now be out of date.

    I’m wondering if the restoration of concubinage, as you put it, might make a difference to Windeyer’s decision if the same case were heard now, since it clearly envisages concurrent (and not even just 2) de facto relationships.

  2. Posted November 11, 2009 at 4:55 am | Permalink

    Excellent sleuthing by both of you (LE and Marcellous). This does to my mind represent quite a significant cultural as well as legal shift, methinks.

  3. Posted November 11, 2009 at 7:13 am | Permalink

    Now we’ll have economists working out a threshold for so many mistresses that it’s not worth any of them taking the man to court. Also, for the wife, it becomes better to divorce at first sign of disloyalty.

  4. Posted November 11, 2009 at 7:34 am | Permalink

    Oh, it also creates a huge incentive for the non-breadwinner to misbehave while breadwinner at work, and say to breadwinner “can you do more overtime?”

  5. Posted November 11, 2009 at 12:46 pm | Permalink

    If the depth of the relationship (amount of emotional support, etc) affects outcomes, how is this determined? Visions in my head of philanderer in fMRI prompted with images or phrases to trigger thoughts about that individual, loss, bonking, etc. Mind you, this wouldn’t indicate history, and there’d be arguments about weighting the importance of emotion v bonking.
    And would the new situation encourage the less financially risky practice of one-nighters, which increases the risk of infecting the innocent partner?
    And, getting even sillier, is an award for a long mainly physical relationship “retrospective prostitution” without the prenegotiated price, and what of regular client of a particular prostitute that become friendly.
    So many tricky things.
    Pre fling versions of pre nups look good, but not if at least one of the parties is too drunk for the contract to be valid.

  6. Posted November 11, 2009 at 6:37 pm | Permalink

    The only reason this case, and future cases like it, are now possible under Australian laws is because of recent changes (a year or so ago?) to address a huge raft of laws that were discriminatory for same-sex couples.

    It was widely commentated and speculated at the time that the new laws (or abolishing the old) would have near and present implications for situations exactly like this – the mistress staking a financial claim in family assets, superannuation, or simply, as in this case, a settlement after the relationship breaks down.

    Just when technology has made it so much easier to conduct an affair over the long-haul, with little fear of detection, along came laws that would frighten the beejebus out of most men contemplating a little sexual activity on the side. Potential divorce suddenly became the least of their potential financial worries.

    Sorry that I don’t have links, or not being more specific about the legal changes – was quite a big deal at the time, and we’ve all been waiting for the first fall-out. Didn’t take long.

  7. Posted November 11, 2009 at 7:33 pm | Permalink

    Long term friends with occasional “benefits” could be problematic.

    Perhaps a kind lawyer could write a creative-commonsed “we’re just friends… who occasionally go a bit further” type document and publish it on the net.

  8. Posted November 11, 2009 at 7:41 pm | Permalink

    DB – that’s a worthy idea, not just to protect men, but also to protect women from their worst selves, by which I mean, the women who claim they don’t want anything more … no, really, I’m not ready to have a relationship / get married / I’m sooo cool with occasional tawdry sex with a guy who would poke it about any old place.

    If women had to sign a bit of paper declaring that they’re just good friends, well, it might give some pause for thought about what they really do want. I can’t see that as being anything other than wholly beneficial, emotionally, if not sexually or financially!

    (Hey, no one ever died wishing they’d had less sex!)

  9. Posted November 11, 2009 at 9:19 pm | Permalink

    [email protected] said “Hey, no one ever died wishing they’d had less sex!”

    Hmmm, depends if you picked up an infection or not. Or had a bad experience that put you off for the rest of your life. Even with it going that far, not a few would say “I could have done with less sex THAT time and THAT time and THAT time and…”

  10. Jayjee
    Posted November 12, 2009 at 4:51 pm | Permalink

    This has always been ONE of my arguments against gay marriage. Once poofs are shepherded under the same state regulation regime as breeders, then ALL man-on-man activity is similarly regulated. Best keep the state as far away as possible, and make any property agreements a matter of private contract.

  11. Caz
    Posted November 12, 2009 at 6:39 pm | Permalink

    Dave – may people no doubt die wishing they had different sex, better sex, or sex with pretty much anyone other than almost all of the people they did have sex with – but not less.

  12. Caz
    Posted November 12, 2009 at 6:48 pm | Permalink

    L.E – there’s a very funny YouTube video that did the rounds a few years ago, engendered by the never ending ‘question’ of consensual sex – the proposed clauses were hilarious … read out as the couple canoodled, with increasing eagerness, before finally signing on before they could go any further.

    Have just been trying to find it, alas, not having any luck. How is it I never think I’ll ever have need to keep the link to something like that? I really should know better by now.

  13. Posted November 12, 2009 at 7:00 pm | Permalink

    Caz, I hope you find that YouTube… because I now want to see it 😉

  14. pete m
    Posted November 12, 2009 at 8:25 pm | Permalink

    I had a client who knew the 2 year law well. He would shack up with a lady (his place), and on their 18 month anniversary, dump her and force her out. He then moved on and found another willing lady. He was very wealthy and simply decided he was too old to have his wealth halved.

    Bolt makes the point the law has bad consequences for the original family unit. There’s $100K now missing from that family’s assets.

    To my mind, I am not sure either way. On the one hand the dirty bugger should be responsible for his / her actions. On the other hand, how can a partner, knowing the other person is married, ever establish a marriage like relationship, especially given bigamy is unlawful here. To me this is making an exception where none exists under the Marriage Act.

  15. Posted November 22, 2009 at 10:30 pm | Permalink

    The Court of Appeal has overturned Justice Windeyer’s decision in Quijarro. See also the SMH, Sex, flies and probate.

  16. Posted November 23, 2009 at 9:04 am | Permalink

    Fascinating stuff, Marcellous — thanks for keeping us informed.

  17. onica
    Posted November 30, 2009 at 12:48 pm | Permalink

    In the case of Robson v Quajarro.
    Luis’s twins born in 1997 or 1998 to Veronica have not been mentioned and his 6 3/4 year relationship with Deborah has hardly been mentioned. Neither has been included in any of the past or present proceedings.

  18. Jayjee
    Posted November 30, 2009 at 6:42 pm | Permalink

    I love the smell of freshly overturned precedent first thing in the morning.

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  2. […] is not necessarily a Bad Thing. The difficulty comes (as I have discussed in this post) when one party has an expectation that the relationship is quasi-marital and the other party has […]

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