Family law insights: What is property?

11 November 2016 Topics: Family law

I recently had the pleasure of attending the National Family Law Conference in Melbourne. One of the most interesting conference sessions I attended was about how, if at all, the definition of ‘property’ in family law matters is changing in the 21st century.

As family lawyers, we readily accept that traditional assets such as real estate, shares, investments, bank accounts, cars and businesses are property for the purposes of family law proceedings. As matters become more complex, the value of trusts and self-managed super funds are also brought into issue. However, as our reliance on online business and interaction explodes, we also now need to consider the value of any online property, which may not be something tangible we can hold or see, as part of a family law settlement.

After listening to each of the speakers at the conference session, I left thinking about a number of things, including:

  1. Changes in technology mean the concept of money or currency is no longer limited to dollars and cents issued by a government or country; money can include cryptocurrencies, such as bitcoin, which have a tradeable value. The notion of trading goods or bartering isn’t new, but cryptocurrencies aren’t traded goods. They are online currencies that have a real time dollar value. The currencies are hard to trace and can be easily hidden from a spouse. The use of cryptocurrencies is increasing.
  2. Online gaming activity and ‘in game’ purchases can have a significant value and online gaming accounts (aside from gambling sites) can be a way to store or hide funds in a family law settlement.
  3. Online gaming accounts and cryptocurrency wallets are difficult to locate and may not be traceable unless they are disclosed by the other side.
  4. The value of online businesses and apps can change quickly and the value can change markedly within a very short period of time. The most recent example is, of course, the Pokémon Go craze, which, at its height, saw virtual Pokémon characters being bought and sold online for thousands of dollars. These accounts are now almost worthless as the popularity of the game has declined.
  5. Technology is moving at a much faster rate than our capacity to recognise and value online businesses, gaming accounts and cryptocurrencies.

What does this mean for family lawyers and parties undergoing separation?

We need to ensure we turn our minds to online property when considering the vital step of determining what the asset pool of a marriage or relationship is. When asking someone about the property and assets they or their partner own, it is important to ask whether there are any apps, online businesses, online trading or gaming accounts or cryptocurrencies that either of the spouses have that may need to be valued or included for the purposes of a family law separation.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.