Add Backs

Can the Family Court make orders about property that no longer exists?

That seems like a very strange idea. Yet the court has done so in previous cases by way of what is called "add backs". Add backs can be argued about in cases involving somebody taking or spending money or property post separation, in cases of parties paid legal costs or in cases of waste by one party of joint property (such as spending it on slow horses).

In a recent case the Family Court once again reviewed the legal principles. The review resulted in the following broad propositions:

• Money spent by parties post separation will mostly not be added back because people are entitled to live reasonably.

• Some matters that would previously have been treated as add backs will not be treated in that way any longer; they will be dealt with in a more general way and taken into account

• Paid legal costs for both parties may still be an area of contention in the individual case, but there is no general principle preventing them being treated as add backs.

Despite the existence of property in the balance sheet that no longer exists, the court cannot make orders giving one party or the other more than the total of the assets.  That, you would think, is obvious.