The songwriter Richard Clapton, in 1975, warned:Girls on the avenue, they’re trying to get you in,
Strolling by with their rosebud smiles.
Sadly, Mr Sha didn’t heed such advice.
While living with his wife, in Melbourne, Mr Sha engaged the services of a young lady with a ‘rosebud smile’. While in less kinder times she would have been called something else, her profession is now one of sex worker.
But don’t you slip don’t you slip
In love with the girls on the avenue
The Judge tells us that Mr Sha met Ms Cham in a massage parlour. They began ‘having sex; discussed having a baby and she stopped work at his request‘. He probably did not want to share her with anyone else, which seems fair enough when you fall in love. This reminds us of Sting’s song Roxanne:
Roxanne, you don’t have to put on the red light
I won’t share you with another boy
Mr Sha gave her money. He helped with her mortgage. This lady ‘with eyes of fire’ even got Mr Sha to sign a Binding Financial Agreement.
One of the natural consequences of having unprotected sex with a sex worker is that she becomes pregnant, albeit with the help of IVF.
The question before the Court was whether Mr Sha was in a de facto relationship when he signed the Binding Financial Agreement.
Family lawyers tell me that you cannot have more than one person as a ‘partner’. I think that was wrong. This case proves that the family lawyers are wrong.
When you build Wills on our law firm’s website one of the questions asks who can challenge your Will. Both a spouse and a defacto can challenge your Will. The Full 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).”
Justice Lynam stated:
“Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. 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.
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.” at 131
Interestingly, although bigamy is still illegal in Australia, Mr Sha is deemed, under the eyes of Australian law, at least, married to both his wife and his sex worker: Sha & Cham [2017] FamCAFC 161, 16 August 2017.
Under Australian law, you can be ‘married’ to your spouse, mistress, and gay partner; all at the same time. No doubt provided that you have the money and time.
When accountants, financial planners, and lawyers build their clients’ 3-Generation Testamentary Trust Wills, Power of Attorney, and Medical POAs on our website, one of the questions is ‘Who can challenge your Will’. There are training videos and hints on this topic.
What do Sinclair & Whittaker and other family court cases teach us about challenging a Will?
The case of Sinclair & Whittaker [2013] FamCAFC 129 provides valuable insights into the complexities involved in challenging a will in Australia, particularly in determining whether a relationship qualifies as a couple living together on a genuine domestic basis. This determination is crucial in cases where the challenger might need to establish such a relationship to claim the estate under family provision laws. Here are some key lessons derived from this case:
The case highlights that the court’s approach to determining the nature of a relationship is holistic and thorough. Challenging a Will often involves proving the nature and quality of the relationship with the deceased, which requires a detailed examination of all aspects of the relationship.
Importance of Context and Interconnectedness
The Court’s emphasis on the composite picture rather than isolated factors underscores the importance of presenting a well-rounded narrative. Each aspect of the relationship, such as financial arrangements, domestic responsibilities, and social recognition, should be interrelated and considered in context. For someone challenging a Will, it is crucial to present evidence that collectively supports the claim of a genuine domestic relationship.
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. 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 Court warns against attributing relative degrees of importance to individual factors. This lesson teaches that when challenging a Will, it is insufficient to focus on a few strong points while neglecting others. A successful challenge should address all relevant aspects of the relationship comprehensively.
Practical Steps in Challenging a Will when your husband dies with a mistress
- Gather Comprehensive Evidence: Collect evidence that covers all aspects of the relationship, including financial documents, photographs, correspondence, witness statements, and any other relevant material.
- Present a Cohesive Narrative: Ensure that the evidence collectively supports the claim of a genuine domestic relationship. The narrative should illustrate the interconnectedness of various relationship elements.
- Understand Legal Standards: Be familiar with the legal standards and precedents that the court will consider. This includes knowing the relevant family provision laws and previous case law that can support the challenge.
- Seek Legal Advice: Given the complexity and variability of these cases, professional legal advice is crucial. A solicitor experienced in family provision claims can help navigate the legal landscape and present the strongest possible case.
In conclusion, the Family Law cases teach us that challenging a Will in Australia requires a thorough and nuanced approach, considering the holistic nature of relationships. By presenting comprehensive and interconnected evidence, understanding legal precedents, and seeking professional guidance, individuals can better navigate the complexities involved in such legal challenges.
Do Binding Financial Agreements work?
We believe that BFAs no longer work. See here.
Advice on asset protection
Being attacked by your mistress is only one problem. For asset protection see here.
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