Wastage of family assets becomes a court Issue

29-November-2010 Family Law By admin

Shared property gambled away may need to be repaid 

An issue may arise as to one person’s conduct either during the marriage or after separation when they dispose of matrimonial property. The Family Court is a Court of Equity, that is, they will not permit a party to take an unfair advantage because of unilateral action for their own benefit without bringing these funds to account. This concept is often called “wastage”.

The most common example alleged to constitute “waste” in the context of Family Law property resolutions is gambling. Gambling in its own right is not necessarily wastage.  It has been accepted by the Courts that for some, this is a form of entertainment and it is a question of degree to be assessed in every case on its own circumstances.

The Court has also found conduct which is reckless, negligent or wanton and reduces or minimises the value of the assets should also be held to account.

If a finding has been made that quantifies a “wastage” amount, these figures will be “added back” into a notional pool of assets for consideration of division.

Comment from Mark Streeter Sydney Lawyer

One of the difficulties in preparing a case in wastage is the innocent party’s “onus” – at least at the first stage  – to prove on the balance of probabilities, that the other party has “wasted assets”. 

This investigation may involve quazi fraud investigation and a detailed examination of betting accounts, electronic records, and may include the “reconstruction” of financial accounts.  Accordingly the process is time-consuming and if it requires forensic accounting to verify the waste, the investigation process will be expensive to present this evidence in a form that is admissible before the Court.
 

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