The end of a relationship can be a complicated and emotional time for all parties involved. Whether it’s a de facto relationship or a marriage that has ended, a number of processes need to take place, such as the division of your property and assets.
The division of property can be sorted out between the parties privately, with the help of mediators and/or lawyers, or through the Court system. For some former couples, it can be a simple process, however, for many, it can be challenging as there are many considerations that need to be made and factors that can influence the outcome.
A potential influencing factor in a property division is the issue of gambling wastage. Gambling wastage refers to the amount of money lost by an individual due to excessive gambling and can significantly impact financial resources available for property division, as well as how these resources will be divided.
In this article, we will discuss how gambling wastage can impact family law proceedings in Australia, with a focus on property division. Whether you’re currently undergoing divorce proceedings or considering separation and are concerned about your property settlement, keep reading to learn more.
What is wastage?
Before we dive into gambling wastage, it’s important to understand wastage as a concept in Australian family law.
Wastage is when a party reduces the matrimonial assets pool of a relationship either intentionally or by acting recklessly, negligently or wantonly. This may sometimes be referred to as negative contributions.
In a marriage or de facto relationship, the financial gains and losses are often shared, however, wastage can occur when a party participates in actions or behaviours that are not justifiable for the loss or decrease of the asset pool and may consist of actions such as drinking, drugs, prostitution, adultery, infidelity or gambling.
Understanding gambling wastage
The court considers gambling to be a legitimate form of entertainment until it becomes reckless, negligent or wanton. Not all losses attributed to gambling will be found to be gambling wastage and often the losses caused by gambling will need to be disproportionate to the value of the asset pool or the contributions of the party who has been gambling.
Gambling wastage is the amount of money lost by an individual due to excessive gambling. And while gambling can be a form of entertainment, excessive gambling can lead to addiction, which can then impact a person’s financial resources and/or cause behavioural issues. Gambling addiction is a growing problem in Australia, with an estimated 6.5 million adults participating in a form of gambling each year. Some of the most popular forms of gambling include lotteries, gaming machines and sports betting.
Gambling addiction or compulsive gambling is not only a growing issue in Australia but also one that can be extremely difficult to control and can often be associated with other negative consequences and behaviours, including substance abuse issues, personality disorders, anxiety and depression, in addition to the potential financial and relationship issues it may cause.
In Australia, there are many support services available for people struggling with gambling addiction. For example, counselling and rehabilitation services exist, as well as help phone lines too.
Impact of gambling wastage on family law proceedings
In Australia, the Family Law Act 1975 (Cth) (the Act) provides guidance on how property should be divided between parties during divorce proceedings. The Act requires the court to consider a range of factors when determining the division of property.
While the Act does not specifically address the issue of gambling wastage, it can be considered a relevant factor in section 75.2 of the Act, when determining the division of property. In cases where one party has incurred significant gambling losses, the court may take this into consideration when determining the financial contributions made by each party.
For example, if one party has lost a significant amount of money through gambling, this may lead to an addback (where the value of the loss is added to the total asset pool to be divided between the former couple) or recalculation of the assets to account for the losses.
In addition to impacting the division of property, gambling wastage can also impact the financial needs of each party. If one party has lost a significant amount of money through gambling, they may have a reduced capacity to meet their future financial needs. This can impact their ability to provide for themselves and their children following a separation.
As every relationship is different, when dividing assets, particularly in instances where it is believed that wastage has occurred, working with a family lawyer is recommended. Proving wastage of any form, including gambling, isn’t easy.
Proving gambling wastage
Proving gambling wastage can be a challenging process. In order to establish that one party has incurred significant gambling losses or negatively contributed to the asset pool, the evidence must be provided to support this claim. This may include bank statements, betting records, and evidence of attendance at gambling venues.
In addition to providing evidence of gambling losses, it may also be necessary to establish that the gambling behaviour is consistent with addiction. This can be done through expert testimony from psychologists or addiction specialists.
Certain medical conditions could also impact whether financial loss caused by gambling is considered to be gambling wastage too.
As we mentioned above, working with a family lawyer to establish proof is ideal. They can help you understand whether wastage could potentially have occurred and the evidence that could help to prove this specific to your circumstances.
Examples of gambling wastage in Australian family law cases
The issue of gambling wastage has appeared in numerous cases in Australian family law history. Here are some examples of instances where gambling wastage has been cited in a case:
De Angelis and De Angelis 2003
In this case, the wife had lost $154,000 from gambling during her 33-year relationship with her husband. The court decided that the amount lost would be considered in their property settlement. As a result, the wife had to pay $42,000 to the husband. The calculation was based on the fact that the wife had received $70,000 from her parents during the relationship, which was subtracted from the gambling loss. Then, the wife was held responsible for paying 50% of the remaining $84,000 gambling loss to her husband, resulting in a total payment of $42,000. The court stated that even though the wife’s gambling may have been due to her illness or a form of entertainment, the amount of money lost was very high compared to the total value of their assets, which was around $530,000.
Crampton and Crampton 2006
In this case, the wife’s gambling losses totalled $140,000 from gambling over a year, but it didn’t affect the amount of property she was entitled to in the divorce settlement. This was because she was diagnosed with a mental health condition called dysthymic disorder, which led to her gambling. The husband couldn’t prove that her gambling was reckless or careless given her medical condition. If your spouse has a history of gambling losses, it’s important to get legal advice because every case is different.
Hamilton and Thomas 2008
In this case, the wife gambled $100 per week from 1999 to 2003, which resulted in $20,800 of financial losses incurred. However, the court determined that this amount wasn’t significant enough to affect the property settlement between the couple. The court believed that the losses from gambling weren’t so large compared to the overall lifestyle and contributions made by both parties. They needed to see a greater level of wastage compared to positive contributions made by each of the parties before making any adjustments. The total value of the couple’s assets in this case was $820,000.
How gambling wastage could be dealt with in a property division
Before we discuss how gambling wastage could be dealt with in your property division, let’s talk about how property is divided.
The process of property division or property settlement can be complicated, however, there are four main steps that need to take place. These are:
- Step 1: Identifying and valuing the property of the parties. The property and assets of the parties involved are usually referred to as the asset pool or property pool.
- Step 2: Consideration of each party’s contributions to the asset pool. These contributions can be financial or non-financial.
- Step 3: Consideration of each party’s future needs. Factors like age, health, dependents and ability to earn income will be considered.
- Step 4: Consideration of whether the settlement is fair. The settlement must be just and equitable.
For more in-depth information on the property proceedings and the division process, click here.
Where does gambling wastage get considered in the process?
Losses from gambling are usually taken into account in the property settlement in one of two ways.
The first way is as part of step one when working out the value of the asset pool the loss will be notionally added to the total value of the pool, as an addback and be considered as a sum that the person who gambled that money would retain. The percentage share and value can be based on the total amount inclusive of the loss, and that loss value will be attributed to the final sum the gambling party receives. For example, if the asset pool was valued at $200,000 and included the value of gambling losses of $25,000, and it was decided that each party is to receive 50% of the pool, one party would receive $100,000 while the one who incurred the gambling losses would receive $75,000 in tangible assets as they already “received” the gambling loss.
The second way the gambling wastage could be taken into account is that in step 2 of the property settlement process, the loss could be considered to be a negative contribution and reduce the percentage of the overall property pool the person who gambled is to receive.
As you can see, working out how gambling wastage plays into a property settlement is not simple, which is why we recommend working with a family lawyer to make sure you’re receiving what is fair in your circumstances.
If gambling is an issue for you or someone in your family
Preventing gambling addiction and addressing the issue of gambling wastage can help to reduce the negative impact on families during divorce proceedings. There are several measures that can be taken to prevent gambling addiction, including setting limits on the amount of money spent on gambling, seeking support from friends and family, and seeking help through various counselling services and help groups.
Some of these services for help with gambling addiction in Australia include:
Gamblers Anonymous (GA):
Website: https://gaaustralia.org.au/
Phone: 1300 222 222 (24/7 helpline)
Gamblers Anonymous (GA) is a fellowship of men and women who share their experience, strength and hope with each other to help solve their common problem of gambling addiction. GA provides a safe and supportive environment where people can talk about their gambling problems and support each other in their recovery.
Relationships Australia:
Website: https://relationships.org.au/
Phone: 1300 364 277
Relationships Australia is a not-for-profit organization that provides a range of services to support individuals, couples and families to strengthen their relationships. They offer counseling, mediation and education programs to help people manage the challenges of life, including gambling addiction.
The Salvation Army:
Website: https://www.salvationarmy.org.au/
Phone: 13 SALVOS (13 72 58)
The Salvation Army is an organisation that provides a range of services to support people in need, including those struggling with addiction. They offer counselling, support groups and other services to help people overcome their addiction and rebuild their lives.
Gambling Help Online:
Website: https://www.gamblinghelponline.org.au/
Phone: 1800 858 858 (24/7 helpline)
Gambling Help Online is a national online support service for people affected by gambling addiction. They provide free, confidential support 24/7 through chat, email and phone. They also offer self-help tools, resources and information to help people understand and overcome their gambling addiction.
Lifeline:
Website: https://www.lifeline.org.au/
Phone: 13 11 14 (24/7 helpline)
Lifeline is a national charity that provides crisis support and suicide prevention services 24/7. They offer confidential support and information to people experiencing a personal crisis, including those struggling with gambling addiction.
Financial Counselling Australia:
Website: https://financialcounsellingaustralia.org.au/
Phone: 1800 007 007 (National Debt Helpline)
Financial Counselling Australia is a not-for-profit organisation that provides free, independent financial counselling services to people experiencing financial difficulties, including those struggling with gambling addiction. They offer advice and support to help people manage their finances and overcome their debt problems.
How we can help you
Here at Unified Lawyers, we’re well-versed in all aspects of family law in Australia, including divorce proceedings, property settlements and gambling wastage. If you or your spouse has incurred significant losses due to gambling and you’re concerned about how this will impact your property settlement, talk to us today.
Our family law services are available Australia-wide, and we have offices in Brisbane, Melbourne and Sydney, so you can discuss your matter with us today. Call us on 1300 667 461 or book your free consultation online using the button below.
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