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Wastage


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Peter-Magee

When doing a property settlement with your spouse/de facto partner after separation, you may be thinking that due to their conduct, whether it be in relation to the cause of separation or during the relationship, you should receive more of the property pool.

In most cases, this is not possible. The family law jurisdiction is a “no fault” jurisdiction, which means the law does not take into account the immorally bad behaviour of one party when determining how to divide the property pool. The law looks at the contributions made by and needs of the parties only. Whilst this may seem unfair, it does ensure focus remains on how the property pool being divided has been acquired and the financial situation of both parties.

In saying this though, there is scope in the way the Family Law Act 1975 (Cth) determines division of property to argue that the other party has “wasted” assets, or in other words, their conduct has caused a negative contribution to the property pool. This loss may be attributed to one party in circumstances where:

  • Where one of the parties has embarked on a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
  • Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

Therefore, the conduct needs to have a financial consequence and an impact on the contributions a party made to the marriage. Examples of wastage arguments that arise in family law proceedings are money expended for gambling, alcoholism, drug addictions, and sex services; however, each case must be examined on its own fact situation.

Further to this though, in presenting a wastage argument in family law proceedings, it may be argued by the “wasting” party that their conduct was due to a mental illness such as addiction and they could not control their behaviour. Appropriate medical evidence would need to be produced to support this argument. It also not an automatically successful argument to say that a party has wasted money matrimonial funds by them choosing to invest in a business or project for example, and that business or project has gone bust. This is because marriage and defacto relationships are viewed as a joint economic venture and it is inconsistent to say because the investment was not successful, there was a negative contribution, as the non-investing party would expect (rightly so) to have the investment in the property pool if it was successful.

If you have any concerns about your former partner wasted matrimonial funds or how their conduct may be relevant to your property settlement, come and speak to one of our family law specialists at Armstrong Legal.



where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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