It is perhaps now well known in Scotland that, in the context of divorce proceedings the court will generally not take the conduct of one spouse into account when dividing up matrimonial property between the parties. However, the exception to this general rule is where one spouse's behaviour has adversely affected the financial resources of the parties. In such cases the court may depart from an equal sharing of matrimonial property.
What is dissipation?
There is no legal definition of dissipation but Lady Wolffe in the case of G v G (2016 SCOH 32) stated that
"Applying its ordinary meaning "dissipation" is suggestive of a waste or loss of matrimonial funds which cannot be traced or which is not represented by a replacement asset. Excessive spending grossly out of proportion to the resources within the matrimonial commonwealth or monies lost by gambling might be examples of "dissipation."
"To test this another way, the idea of dissipation carries with it an adverse impact on the resources or living standards of those dependent upon the resources said to have been dissipated."
Some case law suggests that a passive failure to prevent the destruction or dissipation of matrimonial property is not enough and in the case of Buchan v Buchan (2001 Fam LR 48) the sheriff went so far as to say there must be an element of "deliberate and positively wanton conduct" to establish dissipation.
In the case of C v C (2018 AWL UK 305) the wife sought to argue that her husband had dissipated assets by racking up debts as a result of his extravagant personal expenditure including his irresponsible horse race gambling. She claimed he had done so to such an extent that this constituted a special circumstance justifying an unequal division.
The sheriff concluded that whilst it may have happened there was not enough evidence to entitle him to find that the defender had gambled in an irresponsible and costly fashion depriving his wife and his family of resources.
Whilst there is no exhaustive list of conduct that may amount to dissipation possible examples may include reckless spending, transferring assets to a third party or placing funds in a foreign account with the intention of placing funds beyond the reach of a spouse.
What can be done about it?
When faced with the situation where a spouse or partner has sought to conceal, dissipate or alienate assets to your detriment there are a number of options available. An urgent interdict can be put in place to prevent further dissipation, bank accounts can be frozen and earnings can be arrested. The court can also make an order for the recovery of relevant documents that would provide evidence to support a dissipation claim. However the process cannot be used as a fishing exercise and recovering documents requires some knowledge by the applicant of the potential concealment.
If you suspect dissipation please contact one of our experienced family law team members who will be happy to assist.