When seeking to reach financial agreements within the context of a relationship breakdown resulting in divorce or the termination of a civil partnership, collating documentary evidence of a client’s financial position is key.
The step of collating financial information is expected to be reciprocal and that both parties are open and transparent in respect of their financial disclosure. The information required to be disclosed will include evidence of property, land and business interests, bank accounts, investments, and pensions as well as sources of income.
Increasingly, though, parties’ assets include electronic assets, i.e., cryptocurrency, which bring their own challenges owing to these not being tangible assets in the same way as, say, a Revolut account, which is used to be able to use different currencies.
Where to start? Certainly not with paper! A party must disclose what is known as the public key to the crypto ‘wallet’.
A public key in essence is an account number and is used to receive cryptocurrency into the wallet.
For context, there is also a private key which is essentially a pin number. The holder of a private key can control, trade, or transact the crypto and it is therefore imperative for the owner of the wallet holding the cryptocurrency to ensure that the private key is not disclosed to anyone else.
For the purpose of disclosure in financial remedy proceedings, the private key is not required and only the public key will be requested.
The owning party must disclose a transactional history of the crypto. This relates both to the wallet holding the crypto and also to extend to a breakdown from the trading platforms.
As those who are aware of cryptocurrency, it is a highly volatile market, so valuing the asset brings about significant challenges.
For example, owing to its volatility, a valuation one day could be wiped out the next. There is speculation that if cryptocurrency becomes a regulated market, then valuations will reduce as some investors will pull out. Clearly, that could hugely affect the value of a client’s or the other party’s investment.
As with all investments, though, there has to be consideration that a sale of such could attract tax on a gain in the same way as selling shareholdings.
Therefore, there should be consideration of the net value of the asset depending upon its worth at any given time.
Like any asset, cryptocurrencies can be divided. Cryptocurrencies have been determined as ‘property’ and the court in financial remedy proceedings can therefore order the transfer of such from one spouse to another should this be appropriate in the circumstances.
As cryptocurrencies are such volatile assets, then there are arguments to state that sharing them brings about a risk for both parties rather than one party taking the “copper bottomed” assets.
However, as would be expected, a lot of parties are risk averse, or simply do not understand the market.
There is also the concern that if one party takes the crypto asset, which may on the face of it seem to be the less valuable asset, what then if the value significantly increases?
Would it be fair that the non-owning party should be compensated? Arguably not, as they will likely have taken the more stable asset, leaving the other party with the risk that may have gone either way, in the same way as any other investments, such as shares.
Overall, though, these are assets that have to be disclosed, and those advising must be aware at all times as to the ever-changing values and the volatility of the market place.
Regular updates and potentially agreeing valuations prior to a hearing can aid the court immensely.
For more information, or to speak to our private family law team, call us on 01740 646000, or fill in an online enquiry form and someone will be in touch
Call: 01740 646000
