The hottest topic across the internet recently has probably been the Meng Meiqi incident. Keywords such as “mistress home-wrecker”, “knowingly being the third party”, and “456” have all landed on this popular idol. The most eye-catching points of this huge piece of gossip are probably:
- The man was maintaining a relationship with two women at the same time
- The original partner released chat records between the man and Meng Meiqi as evidence of infidelity
- The man drew up a will and posted it on Weibo
Although having a mistress is not morally accepted by the public, to be honest, we see far too many such dramatic events in real life. Today we are not going to discuss the moral issues in the Meng Meiqi incident — we trust that rational netizens have already formed their own judgements. As legal professionals, we only see the legal points hidden in this big piece of gossip. We will mainly analyse, if the Meng Meiqi incident were to happen in Australia, some of the legal issues it would involve.
Is it illegal to maintain relationships with multiple people at the same time?
In Australia, apart from marriage, the most common form of relationship is a de facto relationship. In principle, a person cannot be married to two people at the same time, but Australia allows multiple de facto relationships to be maintained simultaneously. Under Australian law, infidelity within a marriage is not a criminal offence. Under federal law, sexual activity between two adults aged 18 or over is a personal matter and has nothing to do with their marital status. Australia introduced a new Family Law Act in 1975 and no longer treats “adultery” as a ground for divorce.
Not only that, under Australian family law the third party enjoys rights equal to those of the original spouse. As long as the so-called “third party” has cohabited with the unfaithful party for 12 months or more, they will be recognised by law as being in a “de facto relationship” and will enjoy rights equal to those of the original spouse, including property distribution and inheritance. That is why, in many Australian divorce property-division cases caused by a third party, the third party can also lawfully receive a share of the property. There is a saying, “The mistress has reason, adultery is no crime”, which, though blunt, illustrates Australian family law very well.
If you discover your spouse has been unfaithful, is it necessary to collect evidence?
A third party becoming involved is not just common in dating — it is also very common within marriage. So if you discover that your other half has been unfaithful during the marriage, do you need to collect evidence of the infidelity and submit it to the court at the time of divorce?
Here we need to explain an Australian divorce principle called no-fault divorce. In Australia, there is no such thing as “the party at fault”. This means that, regardless of whether either spouse has been unfaithful, the other party does not need to prove this to the court, because there is only one ground for divorce in Australia: the marriage has broken down irretrievably.
Put simply:
- Factually, the parties must have been separated for at least 12 months;
- Emotionally, there is no reasonable likelihood of reconciliation
Under current family law, marriage is a matter for two people to build together, so the court cannot find that either party is at fault for the breakdown of the marriage, and either party has the right to end the marriage when they see fit.
Before 1975, applying for divorce required one party to demonstrate a “fault” in the marriage. So in the property division process, that fault would become a point in favour of the innocent party, because one party to the marriage had broken the marital vows. However, under today’s no-fault divorce system, property division and custody fall into a separate category and are not dealt with together with the divorce. In other words, who files for divorce and the outcome of the divorce itself do not affect the decisions on property division or children’s custody.
We have previously written a dedicated article on the “no-fault divorce” principle so readers can more clearly understand the major differences between divorce in China and Australia. You can click the link below to revisit it.
A quick Xinglian tip
As an aside, here is another question that many overseas Chinese often ask: can WeChat chat records be used as evidence in Australia?
With the spread of social media and mobile devices, in addition to oral and written evidence, more and more evidence is gradually being transformed into things such as call histories and screenshots. Even if a dispute does not go all the way to court, many everyday disputes often come down to whether one party or another received or read a message, an email, or a message on social media. Sometimes your WeChat chat records really could become key evidence.
Anyone interested can have a look at an article we have previously written which deals with this question in detail.
Watch your WeChat records — they can easily end up as “evidence in court”.
Is a “Chen Lingtao-style will” legally valid in Australia?
Another high-profile point in this gossip is Chen Lingtao’s will. He wrote his will in a memo app and posted it on Weibo, stating that all of his estate would go to his parents and younger sister. If such a will, which looks “rather informal”, were made in Australia, would it have legal effect?
Let us first look at what makes a will valid in Australia. Generally, a will must satisfy the following three requirements to be valid:
- Australian law requires a will to be in written form (handwritten, typed or printed) — audio and video recordings are not valid;
- It must be signed by the testator; and
- The signing must be witnessed by two other people, who also need to sign the will. These two people cannot be beneficiaries of the will or the spouse of the testator.
Note that even if these three requirements are satisfied, your assets cannot be distributed immediately. In some cases, the court first needs to grant probate.
So what is probate?
- The executor of the will needs to apply to the Supreme Court of the relevant state for the materials relating to a Grant of Probate.
- Probate is a legal document issued by the Supreme Court of the relevant state confirming that the will is the last valid will of the deceased and authorising the executor of the will to manage and distribute the estate of the deceased in accordance with the will.
- The executor of the will can then proceed with the distribution of the estate.
Also note that in some circumstances a will can become invalid:
When personal circumstances change — for example, a change in marital status — a will made while single will become invalid after marriage, unless the intended marriage is referred to in the will. Divorce, the purchase of major assets, the incorporation of a new company and other significant changes to your asset structure all require the will to be updated or a new will to be made.
In fact, as modern society and people’s thinking become more open, attitudes to wills have also changed. For example, making a will is becoming more popular among younger people. More and more young people are making wills in advance to plan and distribute their personal assets. This is now a very normal phenomenon.
If you are planning to think about your “final arrangements” early, this article may be able to help you.
Final thoughts
Many high-profile social events actually contain a great deal of legal knowledge that most people would not normally pay attention to, some of which may be completely different from what is generally assumed. For example, in a common scenario like “a third party breaking up a relationship”, the property division and child custody issues that may be involved are very different from those in China. If you are unfortunate enough to encounter such a situation, we recommend seeking help from a professional lawyer. Going forward, we will also analyse trending social events from a professional legal perspective for you, so please stay tuned.
