Extra-Marital Payouts

Andrew Norton points to this Herald Sun article about a man who was sued by his mistress of 20 years and she won a payout of $100,000 when their relationship ended. Andrew doesn’t like it.

This encourages adultery and gold-diggers, at significant emotional and financial risk to the first family. While prohibiting this kind of behaviour is pointless, it should not be encouraged by lessening the risks/increasing the rewards to those threatening existing relationships. How relationship failure between married and not-married people is dealt with should be up to the parties involved, without any legal intervention.

I must admit I was surprised by this. I think he is arguing that divorce shouldn’t have financial regulation by the state unless there are children involved. But he may consider extra marital relationships in a separate category. To me, either these are relationships or not and just because one was officially married or there is more than one relationship going on is beside the point. In any case, like a marital promise, promises made in a extra-marital relationship should not be without cost, should they? What is true is that this law seems like it will discourage people from having more than the socially optimal number of relationships.

7 thoughts on “Extra-Marital Payouts”

  1. “In any case, like a marital promise, promises made in a extra-marital relationship should not be without cost, should they? ”
    I happy with the idea that the mistress might be able to sue for breach of contract. My objection is to the state creating obligations to which the parties have not agreed.


    Andrew, the present law encourages both affairs and break-ups, just as it encourages both marriage and divorce. The particular incentives will vary from couple to couple and time to time.
    Anyway, not all laws are about contractual obligations. After all, the rules on divorce change all the time and apply retrospectively. Even couples married in the ‘fault’ era are bound by the current ‘no fault rules. And that’s fair enough. It’s not as if people who marry pay the slightest attention to the prospect of divorce.
    There is a contractual option, though. The law provides for agreements between couples (including parties to an affair) displacing the rules.  The catch, of course, is that both sides have to agree and the agreement is only binding if both get full legal advice before they sign. That’s how contractual obligations work (and how they ought to work.)
    Finally, both of you, there’s nothing new about any of this. There have been state laws redistributing property of de factos (including affair couples) for decades. Recently (after a new government who wasn’t anti-gay came to power), most states passed the responsibility to the federal government and its Family Court, but without any significant change in the rules.


  3. The mistress law is as close as we’ve come to legally recognising polygamy – I think that is a major departure from what state governments have done in the past.
    But as I explained in my original post, my objection is a philosophical/policy one; that others have made similar mistakes in the past does not make this mistake right.


  4. The recognition is of ‘de factos’, not ‘mistresses’. The definition of ‘de facto’ has never required exclusivity, in state or federal law. So, there’s no ‘major departure’. Beats me how exclusivity would be reintroduced, without chaos, i.e. there are plenty of married couples who separate without divorcing, and then repartner with others. Would you exclude them all from property law because they are adulterers?
    Anyway, Andrew, you’ll be thrilled to hear that the Victorian government does require exclusivity for its Relationships Register, although the only legal difference registration makes is easy proof; unfaithful registrants may still cop an adverse family court ruling.
    It’s strange, though, that even people in ‘caring’ (as opposed to intimate) relationships(e.g. a sibling who cares for an elderly relative) must satisfy the test of exclusivity in order to register (and therefore benefit from the law on dividing property in relationships, amongst other things.) I guess the Victorian government wants to discourage anyone from caring for an elderly person whose spouse is senile and in a nursing home.  It’s the principle, you se…


  5. “The mistress law is as close as we’ve come to legally recognising polygamy – I think that is a major departure from what state governments have done in the past.”
    Andrew, what if the de facto partner (mistress) was not aware of the de jure wife? would denying financial rights, as you propose, be encouraging or discouraging polygamy in such a case.
    I think it is important to keep in mind that an extant marriage has never been an impediment to rights under the state de facto legislation, nor the related actions under common law (Baumgartner or Muschinski). It is just that the prerequisites of those rights (eg living together on a genuine domestic basis) usually precluded – and given that the requirements have not changed except to include same sex, still precludes – a situation of insouciant hanky-panky.


  6. I never understood why polygamy is a crime in western countries but adultery etc. is not and now something like this just seems to heighten the hypocrisy further.


  7. David,

    You make an interesting philosophical point. From my wife’s viewpoint both cases are morally repugnant.

    In the case of polygamy, the government controls the civil and legal aspects. Outlawing polygamy satisfies current societal norms.
    In the case of adultery, such actions occur more often on an informal, short-term basis rather than in an acknowledged, long-term basis. The government probably doesn’t want to enact complicated legislation that is not likely to be accepted under current norms.

    Finally, we don’t legalize gay marriage either, but allow civil and legal redress for such couples under a social guise of being tolerant and liberal. (Now this is an item for discussion for in future posts…)


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