After Jonah & White: case closed and a get out of jail free card for cheating spouses or further confusion?

by Zoe Durand on October 24, 2016

Zoe Durand

Whilst it seems more common sense to write about a recent Court case, I am interested in the lack of recent so called “mistress” cases since the case of Jonah & White [2011] FamCA 221, failed on appeal (Jonah & White [2012] FamCAFC200). Did the failure of the appeal mean that other potential applicants in similar situations no longer have the confidence to pursue their claim?

New legislation for a brave new world in 2009

Current de facto laws which came into force on 1 March 2009 provide that de facto couples and married couples are treated the same way in the Family Court when determining property adjustment after separation.

The laws were particularly controversial because they affirmatively state that “a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.” Some limited public outcry and media attention followed as critics of the new law said this would open the floodgates of mistress cases.

However, an applicant still has to show a de facto relationship exists under section 4AA of the Family Law Act (the Act). This means showing that “having regard to all the circumstances, they have a relationship as a couple living together on a genuine domestic basis”. The following factors in section 4AA of the Act assist in determining this:

  • duration of the relationship
  • nature and extent of their common residence
  • if a sexual relationship exists
  • degree of financial dependence or interdependence, and any arrangements for financial support between them
  • ownership, use and acquisition of their property
  • degree of mutual commitment to a shared life
  • if the relationship is or was registered under a State law as a de facto relationship
  • care and support of children
  • reputation and public aspects of the relationship.

Jonah & White at first instance

Mr White who was married with children, had a 17 year affair with Ms Jonah including shared holidays and 2 to 3 days together, every few weeks. The couple were affectionate and spoke on the phone up to several times a day and used pet names for each other. However their relationship was clandestine and was kept from most friends and family. When the relationship ended Mr White had his comeuppance. He found himself in the Family Court facing an application for alteration of property interests pursuant to section 90SM of the Act.

Before considering altering property interests, the Court firstly determined if the parties were even in a de facto relationship and if a declaration pursuant to section 90RD should be made.

In deciding that no de facto relationship existed Justice Murphy found it relevant that:

  • The parties had separate households
  • In terms of the public aspect of their relationship it was kept secret and they did not socialise as a couple and rarely met each other’s friends, family and colleagues
  • Mr White stressed boundaries specifically saying if he had to “make a choice”, he would “choose” his wife
  • The parties had no joint finances
  • Mr White had extremely limited involvement in Ms Jonah’s life outside their relationship

Jonah & White on appeal

On 30 October 2012 the Full Court of Appeal upheld Murphy J’s decision and Ms Jonah’s appeal was dismissed. Ms Jonah raised issues specific to “mistress” cases such as the “practical constraints imposed by the respondent’s desire to maintain his marriage and thus keep his relationship with the appellant a secret led to limitations on ‘…the degree to which the parties could otherwise live together’.” [38]

Ms Jonah also argued that though not conventionally living together the parties “…lived together through their emotional communion which occurred not only in each other’s physical presence, but by telephone and otherwise.” [41]

The Court found “emotional communion” insufficient to “fall within the definition of “living together” and note that no authority was cited for this proposition.” It was not simply a matter of living together but living together on a genuine domestic basis.

Get out of jail free card for cheating spouses?

Since 2012, while cases determining if a de facto relationship exists have applied Jonah & White, there have not been any specific “mistress” decisions where a third party wife was involved.

Did the decision close the door on “mistress” cases? Like a pendulum swing as legislation is developed by case law, was the potential “threat” of mistress floodgates averted by narrowing the practical application of the legislation?

Does this show that whilst in theory it is possible to be in a marriage and de facto relationship, in reality the dynamic of secrecy mitigates against a genuine domestic relationship being found? Perhaps by raising issues specific to “mistress” cases including their “practical constraints” due to secrecy Ms Jonah forced the Court’s hand in addressing outright the application of 4AA to such cases.

Outcomes for “mistresses” still obtained in the shadows?

However, an absence of judgments in “mistress” cases does not mean outcomes are not negotiated outside of Court. I think enough doubt exists post Jonah & White, to leverage settlements from cheating spouses. Thus the impact of the case may be felt.

Importantly Judge Murphy stressed that a couple do not need to be living together even half the time and it is unclear what the minimum time is. Judge Murphy stressed it is the “nature of the union rather than how it manifests itself in quantities of joint times.” [66]

Even though Ms Jonah did not succeed, in keeping the amount of time vague, not formulaic, the door remains ajar for “mistress” cases since by their nature time together is limited.

In this hot house of uncertainty and potential public embarrassment, parties are more likely to resolve matters outside Court. The stakes are high due to a threshold issue of if the de facto relationship existed which creates a zero/ sum result motivating parties to take control of their own destiny as to the outcome.

On a practical level, consider the reality of such cases. In the substantive proceedings, the wife would be joined as a party to the proceedings as her property interests would be affected. In addition the husband may face a war on two fronts from his “mistress” and wife both seeking a property adjustment. The husband would probably agree to an early settlement to simply avoid any of these unpleasant permutations. Although Mr White “won” the appeal, this is a scenario where the phrase “process is punishment” could apply in family law. Surely cheating spouses would have watched on with horror and determined to avoid this at all costs.

If the matter was resolved by Consent Orders, Part N of the Application requires the Wife as a third party to sign off on the deal. Again in reality the desire of the husband to keep matters secret would continue after the relationship. It makes sense that a secret affair is ended by a private Binding Financial Agreement, with a confidentiality clause. It is also possible some matters that we never hear of are resolved by no more than a handshake and a hope.

Afterthought: the deeper problem behind law being unclear

Perhaps the law is unclear because it is by its very nature messy stuff to define relationships which today extend beyond the 1950s white picket fence variety. This highlights an underlying problem in treating de factos and married people the same. Dare I ask the question: perhaps it is just easier for everyone if de factos and married persons were not treated the same?

Carrie Bradshaw from the TV Show “Sex and the City”, (the zeitgeist of modern relationships) says: “The Eskimo have hundreds of words for snow. And we’ve invented three times that many words for relationship. But the more words we invent, the harder it becomes to define things…. what really defines a relationship?” (Season 4, Episode 3)

In law, how do we define – in a way that is fair and consistent – what often eludes objective determination? In the real world relationships are subjective. Even Murphy J said when tussling with the parties’ evidence, neither was seeking to deliberately mislead, but their evidence was “affected significantly by the fact that their recollections” were “refracted through the prism of their own perceptions of the relationship”. Surely they are not alone in this regard.

In this moveable feast of undefined relationships, there is one way a couple can define their relationship. Marriage could be the sign a couple consciously wish to be treated as having a “mutual commitment to a shared life” including entitling their partner to make an application for a property adjustment if and when the marriage ends. Of course, this opens a Pandora’s box of problems (including obviously that not all people can marry in Australia). Thus another possibility may be that only registered de facto relationships be treated the same way as married people as registration shows a conscious decision? I am simply saying there is a problem with people unknowingly sliding into a relationship that is viewed by the law in different way than they intended.

If de factos (or non registered de factos) and married couples were treated differently this could free people from the fear of being captured by legislation they did not anticipate being captured by and allow them to knowingly live in the grey area of relationships until they are ready to make a black and white statement.

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