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  • Sami Abbas

Bitcoin in Australian Family Law Cases


Family Court and Bitcoin

In Australian family law, especially concerning asset division, the treatment of Bitcoin has emerged as a pertinent issue. The increasing prevalence of Bitcoin and other cryptocurrencies as investment assets has introduced new complexities into family law proceedings in Australia. In 2021, a survey revealed that 25% of Australians had either invested in cryptocurrency or intended to do so within the next 12 months. Despite Bitcoin's decade-long existence and widespread adoption, legal precedent regarding its treatment in family law matters remains limited. Therefore, comprehending how courts perceive Bitcoin within the realm of asset division becomes imperative for both legal practitioners and litigants.


Bitcoin as a Tangible Asset


Contrary to any notion of special treatment, Australian family courts have consistently regarded Bitcoin as they would any other asset within the marital estate. Just as with physical assets, real estate, or traditional forms of currency, Bitcoin holds a monetary value and is subject to negotiation and litigation during divorce proceedings.


This approach aligns with the stance taken by the Australian Tax Office (ATO), which categorises Bitcoin as a form of capital investment. Consequently, the treatment of Bitcoin within family law cases mirrors its taxation treatment, emphasising its position as a valuable asset within the marital property pool.

 

Challenges in Valuation


One of the primary challenges encountered in family law cases involving Bitcoin lies in its valuation. In Family Law proceedings, the volatility of cryptocurrency valuation presents a significant challenge. Unlike traditional assets, the value of cryptocurrency can fluctuate dramatically, with instances of swings up to 20% in a single day or even up to 80% within a month. This volatility adds complexity to the valuation process and can impact asset division outcomes. In 2016, one Bitcoin could be purchased for $200 Australian dollars, but by March 2024, one Bitcoin was worth a whopping $110,596. 


In accordance with Rule 13.04 of the Family Law Rules 2004 and Regulation 24.03 of the Federal Circuit Court Rules 2001, parties engaged in family law proceedings are mandated to offer full and transparent disclosure of all relevant matters, including cryptocurrency holdings. However, the challenge arises when one party refuses to disclose their cryptocurrency assets, potentially leaving the other party unaware of their existence. Even if the presence of cryptocurrency is known, proving ownership can be daunting, especially if passwords or encryption keys are withheld or lost post-separation. Obtaining transaction records for cryptocurrencies can be complex due to their pseudonymous nature and encryption techniques. Cryptocurrency owners can retain anonymity, making it difficult to identify and trace holdings. The decentralised nature of blockchain technology adds further challenges. Legal avenues, such as court orders and forensic expertise, may be necessary to compel disclosure. Despite the difficulties, cooperation is crucial for a fair resolution. Legal practitioners and courts must adapt strategies to navigate these complexities effectively.

 

Wade v Alawi [2020] FCCA 832


In the case of Wade v Alawi [2020] FCCA 832, the court delved deeply into the intricacies surrounding the investment in Bitcoin by one of the parties. Several key points emerged from the cross-examination and subsequent analysis by the court:

  1. Bitcoin Investment Details: The husband disclosed during cross-examination that he invested a significant sum of $280,000 in Bitcoin on December 20, 2017. This investment subsequently suffered substantial losses due to the sharp decline in Bitcoin's value.

  2. Financial Disclosure: Despite the husband's assertion that relevant documents were provided to his solicitor, there were discrepancies regarding the production of financial records pertaining to the Bitcoin investment.

  3. Lack of Consultation: The husband admitted to making the Bitcoin investment without consulting his spouse, indicating a lack of transparency in financial decision-making.

  4. Impact on Marital Assets: The significant loss incurred from the failed Bitcoin investment had a direct impact on the overall asset pool available for division between the parties.

  5. Judicial Precedent Consideration: The court referenced previous case law, particularly the principles outlined in Kowaliw v Kowaliw [1981] FamCA 11, emphasising the importance of shared financial losses within a marriage except in cases of deliberate waste or recklessness.

  6. Evaluation of Husband's Conduct: Despite the husband's failure to produce adequate documentation and his unilateral decision to invest in Bitcoin, the court ultimately determined that the loss was unintentional, albeit reckless, and not indicative of deliberate dissipation of assets.

  7. Equitable Distribution: Acknowledging the impact of the failed investment on the marital estate, the court ruled that both parties should bear the financial consequences of the Bitcoin loss, reinforcing the principle of shared losses and gains within a marriage.

The case of Wade v Alawi exemplifies the nuanced approach taken by Australian family courts in addressing complex financial matters, particularly concerning emerging assets such as Bitcoin. Despite the inherent challenges in valuing and assessing the impact of cryptocurrency investments, the court's deliberations underscore the overarching principles of fairness, transparency, and equitable distribution within the realm of family law.

 

Balsam v Lackner [2020] FCCA 1115


In the case of Balsam v Lackner [2020] FCCA 1115, the court grappled with the valuation and existence of Bitcoin within the context of property settlement proceedings. Several key points emerged from the proceedings:


1. Bitcoin Valuation Discrepancy:

  • The wife alleged that the husband had invested $60,000 in Bitcoin based on conversations she recalled from the time he sold his detailing business.

  • Conversely, the husband provided minimal documentation and valued his cryptocurrency collection, which he referred to as cryptocurrency in general, at a much lower figure of $2,000.

2. Lack of Concrete Evidence:

  • The husband's failure to produce substantial documentation about his cryptocurrency holdings until shortly before the trial added to the uncertainty surrounding the valuation and existence of the Bitcoin investment.

3. Court's Assessment:

  • The court was tasked with reconciling the conflicting claims and assessing the value of the Bitcoin investment within the property pool.

  • Despite the discrepancy between the parties' claims, the court accepted the evidence provided by the husband and his brother, who testified as a more compelling witness.

  • The court determined that the value of the Bitcoin collection had substantially declined to approximately $2,200. It was noted that while there was a possibility of the value increasing in the future, the prevailing economic conditions, particularly the impact of the COVID-19 pandemic, warranted a conservative valuation.

4. Impact of Economic Environment:

  • The court considered the broader economic context, including the uncertainty and downturn caused by the COVID-19 pandemic, in evaluating the value of the Bitcoin investment.

  • Despite the potential for future appreciation, the court deemed it prudent to assign a conservative valuation to the Bitcoin holdings given the prevailing economic conditions.

The case of Balsam v Lackner [2020] FCCA 1115 highlights the challenges inherent in valuing and assessing Bitcoin within the framework of property settlement proceedings. With conflicting claims and limited documentation, the court was tasked with making a determination based on the available evidence.


The court's decision to accept the husband's evidence regarding the value of the Bitcoin collection, albeit substantially lower than the mother's claim, underscores the importance of credible testimony and supporting evidence in such matters. Furthermore, the court's consideration of the economic environment, particularly the impact of the COVID-19 pandemic, in assessing the value of the Bitcoin investment demonstrates the dynamic nature of asset valuation within family law proceedings.

 

Powell & Christensen [2020] FamCA 944


In the case of Powell & Christensen [2020] FamCA 944, the court confronted a situation where the husband had invested a substantial sum of $100,000 in "Bitcoin and like cryptocurrencies" despite being subject to a court injunction. Several key points emerged from the proceedings:

1. Breach of Court Injunction:

  • The husband made cryptocurrency investments totalling $100,000 in contravention of a court injunction that restrained him from dealing with or disposing of any property without prior written consent.

2. Lack of Disclosure:

  • Despite requests for disclosure, the husband failed to produce relevant documentation regarding his cryptocurrency investments. He asserted that the value of the cryptocurrency at the time of trial was only $47,000.

3. Judicial Assessment:

  • In the absence of adequate disclosure from the husband, the judge decided to notionally include the cryptocurrency in the balance sheet at its original purchase price of $100,000 rather than the lower value claimed by the husband.

  • The court acknowledged the uncertainty surrounding the specific cryptocurrencies held by the husband, further complicating the valuation process.

4. Breach of Court Orders:

  • The husband's cryptocurrency purchases occurred in defiance of court orders that explicitly prohibited such transactions without prior consent.

  • Despite being an educated and intelligent individual, the husband claimed ignorance of the orders' implications, demonstrating a casual disregard for his legal obligations.

5. Consequences of Breach:

  • The court noted the seriousness of the husband's breach of court orders and his failure to comply with disclosure requirements.

  • The breach undermined the integrity of the judicial process and reflected poorly on the husband's credibility and commitment to fulfilling his legal obligations.

6. Judicial Remediation:

  • In light of the husband's breach and lack of cooperation, the judge opted to treat the cryptocurrency investments as part of the marital assets at their original purchase value, disregarding the lower valuation provided by the husband.

  • This decision aimed to ensure fairness in the property division process and prevent the husband from benefitting from his failure to comply with court orders.

The case of Powell & Christensen [2020] FamCA 944 illustrates the significant implications of cryptocurrency investments in the context of family law proceedings, particularly when such investments are made in breach of court orders. This case emphasises the importance of full and honest disclosure, as well as the need for courts to adapt to rapidly evolving digital assets in financial settlements during divorce proceedings. The court's decision to disregard the husband's claimed valuation and include the cryptocurrency investments at their original purchase price highlights the importance of compliance with legal obligations and the consequences of non-compliance in marital property disputes.

 

Conclusion


The treatment of cryptocurrencies in family law cases presents a multifaceted challenge, particularly regarding the disclosure of assets. While it is mandated that there is full financial disclosure, obtaining transaction records for cryptocurrencies is often complicated by their pseudonymous nature and encryption techniques, allowing owners to retain anonymity. This anonymity, coupled with the decentralised nature of blockchain technology, poses hurdles in identifying and tracing cryptocurrency holdings. Legal avenues, including court orders and forensic expertise, may be required to compel disclosure effectively. Despite these challenges, cooperation is paramount for a fair resolution in family law property disputes. It is imperative for legal practitioners and courts to adapt strategies to navigate the complexities surrounding cryptocurrency assets comprehensively. As the prominence of cryptocurrencies continues to rise, addressing these challenges becomes increasingly crucial in ensuring transparency and equity in family law proceedings.


If you require any assistance with negotiations, drafting settlement documents, or finding and auditing crypto currency holdings please contact our office and we would be happy to provide whatever assistance is required.

 

Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it is important to seek professional advice for your specific situation.

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