Doing well in the crypto-currency market? Make sure you don’t die rich!
In 2014, Dr Ruja Ignatova, known as the ‘Cryptoqueen’, claimed to have created a new cryptoasset called “OneCoin”, securing investments of more than 4 billion euros around the world. Then, in 2017, she disappeared and has not been seen since. It was later discovered that OneCoin was in fact a scam, meaning that those who invested are unlikely to see their money again.
Cryptoassets, of which the most famous is Bitcoin, are a digital type of “money” which use a technology called Blockchain. Blockchain is simply a secure record of transactions, like a giant ledger, which is available to the public and cannot be changed or hacked. Cryptoassets are not controlled by a state or a bank therefore transactions can take place between individuals without any middle man.
This blog will focus on the first three questions your lawyer should ask if you think your partner owns cryptoassets:
Cryptoassets are held via ‘digital wallets’ and are accessed using ‘keys’. These keys are sequences of letters and numbers, which are written down or saved to a computer or USB drive, but which are not attached to the name or any personal details of the owner. Without the keys, it is near impossible to identify what is owned. There have been instances of cryptocurrency fortunes being lost because the keys could not be located when the owner died (see James Ward’s blog – Doing well in the crypto-currency market? Make sure you don’t die rich!).
It is not all bad news, however. Your partner might use a digital exchange, like CoinBase or Kraken, which is a common method of dealing in cryptoassets. While digital wallets and keys are still used to hold and access the cryptoassets, digital exchanges provide the owner with a platform, in their name, which allows them to purchase, sell and transfer their cryptoassets quickly and easily. Records from the platform should allow you to see what your partner holds, a record of trades and the value of the current holding.
Whether or not a digital exchange is used, your partner should disclose their cryptoassets in their Form E, the usual starting point for financial disclosure in England and Wales. If they do not, you will need to put your detective hat on and get creative. We can help and, if necessary, engage a forensic expert or apply to the Court for various orders to ascertain the true picture.
Cryptoassets are volatile. Between June 2013 and November 2013, for example, the value of 1 Bitcoin jumped from $70 to $1,242, an increase of 1,674%. If cryptoassets represent a significant portion of your family’s assets, changes in value could have a big impact on the overall settlement.
Given the relative infancy of cryptoassets and depending on recent fluctuations, it may be necessary to consider taking an average value over a particular time period rather than looking at the value on a particular date. It is likely that the value of any cryptoasset holdings will need to be monitored more closely than something more established and stable. We are experienced in dealing with fluctuations and can explore the different options with you.
If you have a real concern about your partner dissipating assets, you can consider applying for a freezing order. You can freeze, for example, a bank account which means that your partner will be prevented from withdrawing funds from that account without permission. Freezing cryptoassets is more tricky.
If a digital exchange has been used or if you know that your partner has transferred cryptoassets to a particular person or company, it may be that you can ask the Court to make a freezing order. In the case of Vorotyntseva v Money-4 Limited et al, we saw, for the first time, a freezing order made against a company and its principal officers who held cryptoassets belonging to the claimant worth around £1.5 million. Likewise, in Robertson v Persons Unknown (unreported), CoinBase, the digital exchange concerned, not only complied with the order made by the Court, but co-operated with the wider investigation surrounding the claimant’s stolen cryptoassets. The order made was an asset preservation order, which is different to a freezing order, but it is hoped that digital exchanges would co-operate in a similar way with a freezing order.
Your partner could be asked to give up control of their digital wallets. If they refuse, it may be that wider ranging remedies in civil law are available. The Court could be asked to order, for example, delivery up of all devices where the keys are stored, or for the cryptoassets to be transferred to a new digital wallet which your partner cannot access.
As is always the case, with whatever asset types are in question, if we have evidence that your partner has not provided full disclosure or has dissipated assets, we can ask the Court to draw adverse inferences. This could see you get a bigger share of the remaining available assets.
If you have any concerns, it is important to act quickly.
In our next blog in this mini-series, we will look at how cryptoassets may be distributed as part of a financial settlement and how you might enforce an order where your partner refuses to give you your share of the cryptoassets.
If you are interested in finding out more about cryptoassets and the issues they can pose for family law, please contact a member of our family and divorce team or click here to get started online and find out where you stand.
We also have a team of specialist crypto asset lawyers with legal expertise from multiple disciplines across the firm, including our corporate and commercial, regulatory, dispute resolution, criminal, family and employment practices – see HERE for further information.
Cady Pearce is a Senior Associate in the family and divorce team. She advises UK and international clients on matters involving all aspects of family law, in particular complex financial issues (including trust arrangements); cross-border disputes; private children cases (including international relocation); and nuptial agreements.
Liam Hurren is a Legal Assistant in the family and divorce team, He assists partners and associates on matters involving all aspects of family law.
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