It is not uncommon when one party to a marriage or a de-facto relationship engages in a conduct resulting in negative contributions towards the property pool.
One of the most often cited cases relating to negative contributions by way of gambling is a case of De Angelis & De Angelis.
In this matter the parties married in 1963 and separated in around 1996. The asset pool was determined by the Court to be around $530,000. It was alleged by Husband that the Wife had gambled away $154,000 of matrimonial funds. The Court found that only $84,000.00 of those funds were jointly contributed to, as the remaining funds were given to the Wife by her relatives.
In the first instance, the Trial Judge divided the parties' assets by way of a 45/55 split in favour of the Husband and also ordered the Wife to pay to the Husband 55% of $84,000, in lieu of the wife’s gambling.
On Appeal the Full Court reduced this amount to 50% and observed as follows:
“We are firmly of the view that, notwithstanding that the wife's gambling may have been her form of entertainment or indeed even a result of illness, and also notwithstanding that the husband also spent money on golf, the sums lost by the wife through gambling are very high in the context of the total value of the parties' overall assets6. Further, we are of the view that the husband is entitled to some recompense or adjustment in these proceedings for the losses. Left to ourselves, none of us might have made that adjustment in the exact percentage or mathematical terms which his Honour did. However, we think that his approach has a certain validity or attraction in the circumstances of this case, and we will also employ it when re-exercising the discretion. Accordingly, we would also require the wife to pay to the husband an amount of say $42,000, being approximately 50% of the sum of $84,220 which his Honour found to be part of the parties' funds.”
It should be noted that the Court has significant discretion when it comes to dealing with negative contributions, whether it is gambling or wastage. However, the aggrieved party may not receive a dollar-for-dollar adjustment in their favour as the Court has power to deal with negative contributions as a negative adjustment to the total percentages, resulting in different outcomes to that in De Angelis case.
It should also be noted that negative contributions can often be hard to prove and quantify. Whilst it may be possible to obtain detailed records from the gambling clubs by issuing subpoenas during the litigation process, there is no requirement for such records to be kept for more than 7 years and often the records do not assist in determining the exact amounts gambled away by a party.
An example of not getting a dollar-for-dollar compensation due to the other side’s gambling can be seen in the matter of Polito [2009] FMCAfam 511 (27 May 2009).
This case involved a small asset pool of around $130,000. The parties commenced living together in or around October 1996 and separated in April 2006.
The wife sought an add back in the sum of $68,759.86. being losses of $139.19 per week for 494 weeks of the relationship. The amount of losses per week, was determined based on the documents produced by Centrebet, which showed an average loss of $139.19 over a period of around 5 years, but did not cover the whole of the relationship.
FM Baker found that the Husband had a gambling habit, which became a serious problem from around 2000, and that such conduct was reckless, negligent or wanton and minimised the parties assets. However, the Court found that the amount as sought by the Wife and even a lesser amount of $41,201.88 (which the Wife was able to prove based on the records produced by Centrebet), amounted to a large percentage of the property pool and it was unreasonable to treat any of those amounts as addbacks.
Instead FM Baker ruled that it was reasonable to allow the Husband $30.00 per week for entertainment for gambling. The total amount of addback was thus determined to be $32,264.00 (296 weeks x $109.00).
The above cases demonstrate the Court’s discretion when it comes to the treatment of gambling and negative contributions and the importance of having detailed records in support of your case. Had the Wife in Polito produced records from Centrebet covering the whole period of the relationship, it is likely that the addback would have been substantially bigger.
Our experienced team as Surge Legal has years of experience in dealing with complex family law matters and cases involving negative contributions. We understand and know firsthand the standard of proof required to get you across the line and achieve the best possible outcome. We urge all our readers not to delay these matters and to contact us at the earliest opportunity, as soon as you suspect any wastage or gambling by your former partner.
Do not hesitate and contact us now for a free initial consultation.
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