So you’ve separated and are undertaking the arduous and painful task of divvying up your assets. Naturally, in order to undertake such a task, you’re getting copies of all your bank statements and credit card bills, only to discover a shocking secret. You ex’s ‘light flutter at the TAB’ each Saturday is much more than a ‘light flutter’ and the gambling debt has mounted, be it by way of credit cards or loans secured over your property.
Sadly, this scenario is all too common in the family law sphere but, thankfully, such conduct of one party, particularly when it was hidden from the other, is not ignored by the Family Law Court in division of the matrimonial pool.
Four Step Process
The Family Court undertakes a 4 step process when dividing property between former spouses. Even if you have no intention of taking the matter to Court, you should follow this process too.
The 4 steps are:
- Ascertaining and valuing the asset pool – that includes all assets and all liabilities;
- Assessing the respective contributions of each party;
- Making adjustments (if needed) to take into account the future needs of each party; and
- Ensuring that the division reached is ‘just and equitable’.
Does the Liability form part of the matrimonial pool?
Essentially, yes. The matrimonial pool will consist of all assets and liabilities as at the day of trial (i.e. today) so that credit card debt or secured loan needs to go on the ledger, regardless of whose name it is in.
Step ‘2’ of the Four Step Process involves an assessment of the respective parties’ contributions, including financial and non-financial contributions. Generally, a party who is deemed to have made greater contributions will receive a ‘bigger piece of the pie’.
Similarly, the Family Court can recognise negative contributions, whereby an adjustment is made against the wrongdoer. Gambling is the most common basis upon which a negative contribution is recognised.
Where one party has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value, for example, excessive gambling, spending excessive sums on drugs, alcohol or the downloading of internet pornography, the Court may in its discretion make an adjustment in favour of the other, ‘innocent’ party. There are a number of cases where the Court has applied this principal to a circumstance of excessive gambling, and made an adjustment accordingly.
If gambling has affected your relationship with your ex-spouse and you are concerned about how this will play into the division of your matrimonial property pool, see a family lawyer. In addition to assessing the conduct for Family Law purposes, they may be able to assist you to take active steps to ensure what’s left of your assets remains protected.