Can your Mistress (or Gay Lover) claim an inheritance from your estate?

A question we're asked, on behalf of a friend is, 'Could my mistress challenge my Will?' Another question then follows, for more inquiring minds, 'What about a gay lover then?'

Good financial advice is about knowing that life, love and relationships are inherently personal and so sometimes our financial advice needs to be equally personal too.

Beyond the Spouse: Unraveling Inheritance Rights for Other Relationships

While perhaps not the question on absolutely everyone's lips, its certain a topic of conversation where everyone has an opinion — but few have the professional insights to give you the truth — so here is some clarity one of life's more important conversation points

Read in this article

Love and lust is blind so they would have you believe  - we disagree - it may be more short sighted

Spoiler Alert: Under Australian law, you can be ‘married’ to your spouse, mistress, and gay partner; all at the same time - no doubt provided you have the money and time — and the energy.

Some things in love and life are never straightforward as we like to hope - and when it comes to challenging a Will document (or even lobbying the Trustees of a Super fund for special consideration) nothing highlights the importance of being connected to good advice like a challenge to a Will by someone’s mistress and gay lover.

Love, Laws, and Legacies: are you in a de facto relationship (and maybe don't know it yet?)

The outcome of the recent Australian legal case of Sha Cham Fam CAFC 161 is worth knowing for your next conversation with mates over a BBQ.

In Australian law, a de facto couple has the same rights as a married couple, particularly when it comes to disputes and claims to property, finances, and children, under the Family Law Act 1975 (Cth). But, unlike married couples, de facto partners must first establish that their relationship meets the legal definition of ‘de facto’.

New to De facto relationships?

A de facto relationship exists where in all the circumstances, the parties have: “a relationship as a couple, living together on a genuine domestic basis.”

The Family Law Act 1975 section 4AA defines the meaning of de facto relationships as:

(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.

But there is a considerable level of confusion about what the words ‘living together’ and ‘genuine domestic basis’ means?

The threshold usually requires the existence of the de facto relationship for a period of at least 2 years unless;

• there is a child of the relationship, or
• if you have made a significant contribution and it would be unfair to bar you from making an application to the family court.

Now let's set the legal scene

The Victorian case of Sha & Cham Fam CAFC 161 from August 2017, involved Mr. Sha, who, while married, also developed a relationship with Ms. Cham, a sex worker, who later made a claim to his Will as his de facto.

The Quick Facts

• Mr Sha was legally married when he also cultivated a relationship with a sex worker.
• This relationship deepened, leading to discussions about having a child and Mr. Sha providing financial support, including towards her mortgage.
• Ms. Cham even had Mr. Sha sign a Binding Financial Agreement (BFA) and later became pregnant with his child through IVF.

The Big Question

Was it possible to be legally married and also in a de facto relationship with another, at the same time?

The Big Answer

The Full Court concluded that under Australian law, even though he was already married to his wife, the court found that he was also in a de facto relationship with Ms. Cham at the same time.

The Court said:
“In determining whether two people have a relationship as a couple living together on a genuine domestic basis the court has regard to all of the circumstances of their relationship. Whether such a relationship exists depends on an assessment of all of the circumstances of the relationship. Each circumstance is given such weight as the court considers appropriate (see Sinclair & Whittaker [2013] FamCAFC 129).” …

The Court went on to say, “What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. (Legal speak for ‘its complicated’) …

The endless scope for differences in human attitudes and activities means that there is an almost infinite variety of combinations of circumstances which may fall for consideration.”

So there you have it. Under Australian law, you can be ‘married’ to your spouse, mistress, and gay partner; all at the same time - no doubt provided you have the money and time - and the energy.

• This legal reality presents a challenge for those with personal assets and a Will, and a roadmap for those who wish to challenge your Will.

You Need a Strategy to Challenge a Will Document

To challenge a Will effectively, you’ll need a comprehensive strategy that incudes:

• Gather Comprehensive Evidence: Collect all relevant documentation such as financial records, photographs, correspondence, and witness statements to fully support the claim you were in a defacto relationship.
• Present a Cohesive Narrative: Ensure that all collected evidence collectively builds a strong and clear case for a genuine domestic relationship.
• Seek Quality Legal Advice: Given the intricate and varied nature of these cases, professional legal advice from a solicitor specialising in family provision claims is essential for navigating the legal process and presenting the strongest possible case.

Importance of a relationships Context and Interconnectedness

The Court’s emphasis on the composite picture rather than isolated factors underscores the importance of presenting a well-rounded narrative.

• When challenging a will, the claimant must be prepared to demonstrate the unique characteristics of their relationship with the deceased, using a broad range of evidence.
• The case acknowledges the infinite variety of human relationships and the endless scope for differences in attitudes and activities.
• This recognition implies that there is no one-size-fits-all criterion for proving a relationship.

And yes, if you're looking for a referral to a legal team, we can help you out with this speciality, we can point you in the right direction. And if don’t yet have a Protective Will document in place, we can help you with that too

So where to from here?

There are key legal documents you need to have in place

1. You need a professionally draft Will Document (and have it stored securely away form loss and tampering)
2. If you have life insurances and assets over $1,000,000, you probably need a Protective Will Document (and if you think a post office Will Kit will do the job, we have no interest in spending time trying to convince you otherwise).
3. You need to have a Binding Death Nomination for your Super fund and you need a plan in place, just in case that you find your relationships have become ‘complicated’, and you might have a de facto or two - with rights to your property, wealth and insurance.

And yes we’d love to help you out with this too.

Drew Browne is a specialty Financial Risk Advisor working with Small Business Owners & their Families, Dual Income Professional Couples, and diverse families. He's an award-winning writer, speaker, financial adviser and business strategy mentor. His business Sapience Financial Group is committed to using business solutions for good in the community. In 2015 he was certified as a B Corp., and in 2017 was recognised in the inaugural Australian National Businesses of Tomorrow Awards. Today he advises Small Business Owners and their families, on how to protect themselves, from their businesses.  He writes for successful Small Business Owners and Industry publications. You can read his Modern Small Business Leadership Blog here. You can connect with him on LinkedIn.  Any information provided is general advice only and we have not considered your personal circumstances. Before making any decision on the basis of this advice you should consider if the advice is appropriate for you based on your particular circumstance.