Divorce can be a challenging and emotionally charged process, marked by the dissolution of a lifelong commitment and the unraveling of intertwined financial lives. Unfortunately, some individuals may resort to hiding assets during divorce proceedings, aiming to minimize their financial obligations or manipulate the division of marital property. In this comprehensive guide, we will explore the various aspects of concealing assets in divorce and provide insights on how to protect your interests. By understanding the warning signs and taking appropriate action, you can ensure a fair and equitable outcome.

Understanding Matrimonial Regimes

One of the key factors that influence the likelihood of concealing assets in divorce is the matrimonial regime under which the couple is married. In South Africa, couples can choose between different matrimonial regimes, including community of property, out of community of property with accrual, and out of community of property without accrual. Each regime has its own implications for the division of assets in divorce.

In a community of property regime, all assets acquired during the marriage are considered joint property and are typically divided equally in the event of divorce. This can create an incentive for one spouse to conceal assets to avoid their fair share of the division. On the other hand, in an out of community of property regime, each spouse retains ownership of their individual assets, making it more difficult to hide assets.

Motivations for Hiding Assets

Understanding the motivations behind hiding assets during divorce can shed light on the tactics individuals may employ. One common reason is to reduce the amount of spousal maintenance or support that may be awarded. By understating their income or assets, the higher-earning spouse may seek to minimize their financial obligations.
Another motivation for concealing assets is a sense of unfairness or a desire to protect one's assets from division. If a spouse feels that they have contributed more to the joint finances or that their partner should not be entitled to a significant portion of their assets, they may resort to hiding assets to maintain control over them.

Methods of Asset Concealment

Concealing assets during divorce can take various forms, and individuals may employ different strategies to cover their tracks. Some common methods include:

1. Non-disclosure: One of the simplest ways to hide assets is by failing to disclose them during the divorce process. This can involve omitting assets from financial statements or intentionally undervaluing them.
2. Depreciation: Another tactic is to artificially reduce the value of assets, making them appear less valuable than they actually are. This can be done by manipulating financial records or obtaining inflated appraisals.
3. Concealing transactions: Individuals may engage in complex financial transactions to hide assets. This can include transferring assets to family members or friends, creating shell companies, or making investments in offshore accounts.
4. Overstating debts: By inflating their debt obligations, individuals can create the illusion of financial strain, making it seem as though they have fewer assets available for division.
5. Understating income: Manipulating income figures can be another method of hiding assets. This can involve underreporting income or delaying the receipt of bonuses or commissions until after the divorce is finalized.

Warning Signs of Concealed Assets

Spotting the warning signs of concealed assets is crucial in protecting your interests during divorce. While each case is unique, there are some common red flags that may indicate asset concealment:

1. Defensiveness: If your spouse becomes defensive or evasive when the topic of finances is raised, it may be a sign that they are hiding something.
2. Unrecognized expenses: Receipts or statements for expenses or accounts that you are unfamiliar with could indicate hidden assets.
3. Unexplained withdrawals: Large withdrawals from joint accounts without discussion or explanation could be a sign of asset concealment.
4. Unusual financial behavior: Sudden changes in banking details, such as the opening of new accounts or the inclusion of third parties, may indicate attempts to hide assets.
5. Unexplained decrease in income: If your spouse suddenly experiences a significant decrease in income without a valid explanation, it could be a tactic to reduce their financial obligations.

It is essential to remain vigilant and consult with a knowledgeable divorce attorney if you notice any of these warning signs.

Uncovering Concealed Assets Uncovering concealed assets during divorce requires a proactive approach and thorough investigation. Here are some steps you can take to protect your interests:
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1. Gather documentation: Collect all relevant financial documents, including bank statements, tax returns, business records, and property deeds. This will provide a comprehensive overview of your spouse's financial situation.
2. Consult a forensic accountant: Engaging the services of a forensic accountant can be invaluable in uncovering hidden assets. These professionals have the expertise to identify irregularities in financial records and trace complex financial transactions.
3. Request financial disclosures: In divorce proceedings, both parties are typically required to disclose their financial information. Ensure that your spouse provides accurate and complete disclosures. If you suspect concealment, consult with your attorney to take appropriate legal action.
4. Consider digital forensics: In today's digital age, digital forensics can play a crucial role in uncovering hidden assets. This involves analyzing electronic devices and online accounts to identify any financial improprieties or hidden transactions.
5. Collaborate with your attorney: Working closely with your divorce attorney is essential in navigating the complex process of uncovering concealed assets. They can guide you through legal procedures, help gather evidence, and advocate for your rights.

Legal Consequences of Concealing Assets

Concealing assets during divorce is not only ethically questionable but also carries legal consequences. In South Africa, intentionally hiding assets can be viewed as fraudulent behaviour and may result in severe penalties. The court has the authority to impose financial sanctions, award a larger portion of the assets to the innocent party, or even refer the matter for criminal prosecution.

Protecting Your Interests: The Role of a Divorce Attorney When facing the challenges of asset concealment in divorce, it is crucial to seek the guidance of an experienced divorce attorney. A skilled attorney can help you navigate the legal complexities, employ investigative strategies, and protect your interests throughout the process. They will ensure that your rights are upheld and work towards achieving a fair and equitable outcome.

Conclusion

​Concealing assets in divorce is a serious matter that can have significant consequences for both parties involved. By understanding the motivations behind hiding assets, recognizing the warning signs, and taking proactive steps to uncover concealed assets, you can protect your financial interests and ensure a fair division of assets. Working closely with a knowledgeable divorce attorney is crucial in navigating this complex process and advocating for your rights. Remember, transparency and honesty are fundamental to achieving a just resolution in divorce proceedings.

​Introduction

Divorce can be a challenging and emotionally draining process. In addition to the emotional turmoil, there are practical and financial matters to consider, including spousal maintenance. Spousal maintenance, also known as alimony, is the financial support one spouse provides to the other following a divorce. In South Africa, the laws regarding spousal maintenance are complex and require careful consideration. This comprehensive guide will walk you through the key aspects of spousal maintenance in South Africa, including factors considered in awarding maintenance, recommended maintenance clauses, documents needed to prove a claim for maintenance, and the impact of cohabitation on spousal maintenance obligations.

Spousal Maintenance in a Divorce Order

In a divorce order, a court may order one party to pay spousal maintenance to the other for a specified period of time or for an indeterminate period until the recipient spouse's death or remarriage. Rehabilitative maintenance is a type of spousal maintenance that operates for a limited and specified period, aiming to assist the recipient spouse in becoming financially independent. Once the specified period comes to an end, no further maintenance can be claimed. The duration of the marriage, the standard of living enjoyed by the parties prior to the divorce, and the existing and prospective means of each party are factors considered in determining the duration and amount of spousal maintenance.

Factors Considered in Awarding Maintenance

When determining spousal maintenance, the court takes into account several factors, including the existing and prospective means of each party, their earning capacities, financial needs and obligations, and the duration of the marriage. The standard of living enjoyed by the parties before the divorce, the conduct of either party leading up to the divorce, and any transfer of assets to be made in terms of a redistribution order are also considered. Additionally, the court may consider any other factor it deems relevant to the case. It is important to note that the court has discretionary power when it comes to awarding spousal maintenance, and each case is evaluated on its individual merits.

Recommended Maintenance Clauses

To ensure clarity and avoid future disputes, it is recommended to include specific maintenance clauses in the divorce order. One common clause is to provide for a specified percentage increase or an increase according to the Consumer Price Index (CPI) annually on the date of the divorce. This helps to prevent disputes regarding the amount of maintenance over time. Another important clause is the inclusion of a maintenance order for a nominal amount, such as R1.00 per month, without an annual increase. This allows the recipient spouse to approach a maintenance court in the future if their circumstances change and they require additional maintenance.

Documents Needed to Prove a Claim for Maintenance

When making a claim for spousal maintenance, it is essential to gather the necessary documents to support your case. These documents include a schedule of your monthly income and expenditure, documentary proof of all income received and expenses incurred, a schedule of your assets and liabilities reflecting their current values, and documentary proof of the value of your assets and outstanding liabilities. It is also helpful to gather any evidence you may have of your spouse's income, expenditure, and assets.

Impact of Cohabitation on Spousal Maintenance Obligations

One common question that arises in spousal maintenance cases is the impact of cohabitation on the obligation to pay maintenance. In South Africa, the court may terminate the obligation to pay spousal maintenance if the recipient spouse enters into a cohabitation arrangement with a new partner. The specific terms of the divorce settlement agreement and the nature of the cohabitation relationship are crucial factors in determining whether the maintenance obligation should be terminated. Factors such as living under the same roof, establishing and maintaining a joint household, and contributing financially to the recipient spouse's expenses are considered by the court in determining the existence of a cohabitation arrangement.

Conclusion

Spousal maintenance is an important aspect of divorce proceedings in South Africa. Understanding the factors considered in awarding maintenance, recommended maintenance clauses, and the impact of cohabitation on maintenance obligations can help navigate the complexities of spousal maintenance cases. It is crucial to gather the necessary documents to support your claim for maintenance and to consult with a qualified attorney who specializes in family law to ensure your rights are protected throughout the process. By being well-informed and prepared, you can approach spousal maintenance with clarity and confidence.

​Rule 43 Applications

Divorce proceedings can be a challenging and complex process, especially when it comes to issues of financial support and child custody. In South Africa, the legal system has provisions in place to address these matters on an interim basis through Rule 43 applications. In this comprehensive article, we will explore the key aspects of Rule 43 applications, including their purpose, the application process, and their impact on divorce proceedings.

Throughout this article, we will delve into the intricacies of Rule 43 applications, providing insights into their purpose, application process, and impact on divorce proceedings. It is important to note that divorce proceedings can vary based on individual circumstances, and seeking professional legal advice is crucial in navigating this complex terrain.

1. Introduction to Rule 43 Applications

1.1 The Purpose of Rule 43 Applications

When going through a divorce, certain issues cannot wait for the final divorce order. Rule 43 applications provide a mechanism for obtaining urgent interim relief in matters such as financial support and child custody. These applications are designed to address the immediate needs of parties involved in divorce proceedings and ensure a fair and equitable process.

1.2 Interim Maintenance and Financial Support

One of the primary purposes of Rule 43 applications is to secure interim maintenance for minor children and non-earning spouses. In cases where one party is no longer receiving a joint household income, interim maintenance can provide essential financial support during the divorce process. This may include covering expenses such as housing, education, medical costs, and legal fees.

1.3 Contribution to Legal Costs

Rule 43 applications also allow for a contribution to the legal costs of one party to ensure fair access to legal representation. This provision helps level the playing field, especially in situations where one party has greater financial resources than the other. The court will consider the financial circumstances of both parties to determine a reasonable contribution towards legal costs.

1.4 Interim Care and Contact of Minor Children

In cases involving minor children, Rule 43 applications can address issues related to interim care and contact. This ensures that the best interests of the children are protected during the divorce process. The court may grant an order regarding visitation rights, custody arrangements, and any other matters related to the welfare of the children.

2. Understanding the Rule 43 Application Process

2.1 Initiating a Rule 43 Application

To initiate a Rule 43 application, the party seeking interim relief, known as the Applicant, must complete an affidavit outlining their specific requests. This affidavit is then lodged with the court and served on the other party, known as the Respondent. The Respondent is given the opportunity to respond to the Applicant's affidavit, providing their own perspective and arguments.

2.2 Filing Affidavits and Serving the Other Party

Once the Respondent has prepared their response, it is served on the Applicant and filed with the court. This exchange of affidavits sets the stage for the argument and decision-making process. It is crucial for both parties to provide accurate and comprehensive information in their affidavits to ensure a fair and informed decision by the court.

2.3 Responding to a Rule 43 Application

The Respondent's response to the Applicant's affidavit should address the specific claims made in the application and provide any relevant evidence or counterarguments. This stage allows both parties to present their perspectives and provide the court with a comprehensive view of the situation. It is important to consult with legal professionals to ensure a strong and effective response.

2.4 Argument and the Court's Decision

After the completion of the affidavit exchange, the court will schedule a hearing where both parties can present their arguments and evidence. The court will consider the financial circumstances of the parties, the needs of minor children, and any other relevant factors in making its decision. It is essential to be well-prepared and present a compelling case during the argument stage.

3. The Impact of Rule 43 Applications on Divorce Proceedings

3.1 The Importance of Interim Orders

Interim orders obtained through Rule 43 applications can have a significant impact on the course of divorce proceedings. These orders provide temporary relief and set the tone for subsequent negotiations and discussions. They can influence the ultimate settlement and may establish precedents that impact the final outcome of the divorce.

3.2 Establishing Precedents and Influencing Negotiations

Rule 43 orders, although intended to be temporary, can shape the direction of negotiations between the parties. The terms of the interim maintenance order, for example, may influence the fairness of the eventual settlement. It is important to carefully consider the implications of Rule 43 orders and their potential impact on the overall outcome of the divorce.

3.3 Potential Challenges and Unfairness

While Rule 43 orders provide essential interim relief, they can also present challenges and potential unfairness. Due to their expedited nature, these orders may not always fully consider the complexities of the situation or the long-term financial implications. It is important to approach Rule 43 applications with caution and seek professional advice to mitigate any potential adverse outcomes.

3.4 The Non-Appealable Nature of Rule 43 Orders

Rule 43 orders are non-appealable, meaning that they cannot be challenged or appealed once they are granted. This is due to the urgent and interim nature of these orders, which aim to provide immediate relief to parties involved in divorce proceedings. While this lack of appeal rights may raise concerns, it ensures a speedy and efficient resolution of urgent matters.

4. Rule 43 Applications and Modern Relationships

4.1 Changing Dynamics and Financial Considerations

In modern relationships, the dynamics of financial support and earning capacity have evolved. It is no longer uncommon for both spouses to be working and for women to be the primary earners. This shift in financial dynamics adds complexity to the process of divorce and may lead to Rule 43 applications to address interim maintenance and financial support.

4.2 Same-Sex Marriages and Rule 43 Applications

Same-sex marriages are recognized and protected under South African law. As such, Rule 43 applications can be utilized by parties in same-sex marriages to seek interim relief, including maintenance and custody arrangements. The court will consider the unique circumstances of same-sex marriages and ensure the best interests of the children involved.

4.3 Complex Financial Affairs and Business Interests

In some divorce cases, the financial affairs of one or both parties may be intertwined with family trusts or businesses, both in South Africa and offshore. These complex financial arrangements add layers of complexity to Rule 43 applications, as the court must carefully consider the financial implications and potential unfair advantages or disadvantages.

5. Rule 43 Applications and Parental Rights

5.1 Safeguarding Children's Best Interests

The primary consideration of the court in Rule 43 applications related to children is the best interests of the children involved. The court acts as the upper guardian and ensures that the children's rights and welfare are protected. This includes addressing issues of custody, care, and contact, and ensuring that the children's needs are met during the divorce process.

5.2 Addressing Access and Custody Issues

Rule 43 applications provide a mechanism for addressing access and custody issues on an interim basis. This allows for the establishment of temporary parenting plans and visitation schedules to ensure that children have ongoing contact with both parents. The court will consider the specific circumstances and needs of the children when making decisions regarding access and custody.

5.3 The Role of the Children's Act 38 of 2005

Rule 43 applications are guided by the principles and provisions of the Children's Act 38 of 2005. This legislation emphasizes the best interests of the child and provides a framework for addressing matters related to children in divorce proceedings. The Act ensures that the rights and welfare of children are protected throughout the divorce process.

6. Situations Where Rule 43 Orders Can be Modified

6.1 Changing Circumstances and Amending Orders

Rule 43 orders are not set in stone and can be modified if there are substantial changes in the parties' circumstances. If there is a significant change in financial resources, living arrangements, or any other relevant factors, the affected party can approach the court to amend the existing order. This allows for flexibility and ensures that the orders remain fair and equitable.

6.2 Seeking Fairness and Equity in Maintenance and Legal Costs

The court aims to provide fair and equitable outcomes in Rule 43 applications. If a party believes that the existing order is unfair or does not adequately address their needs, they can seek a variation to ensure that the order aligns with their current circumstances. It is crucial to consult with legal professionals to navigate the process effectively and protect one's rights.

7. Recent Developments and Case Law

7.1 Constitutional Challenges to Rule 43 Orders

The constitutionality of Rule 43 orders has been the subject of recent legal challenges. Some parties argue that the inability to appeal these orders violates the best interests of the child principle and the right to equality and access to courts. However, the courts have upheld the non-appealable nature of Rule 43 orders, emphasizing the importance of providing immediate relief for women and children.

7.2 The Ruling of the Constitutional Court

In a recent ruling, the Constitutional Court upheld the non-appealable nature of Rule 43 orders. The court recognized the importance of providing a speedy and inexpensive remedy for women and children in need. While there were hints that the constitutionality of Rule 43 itself may be challenged in the future, for now, the prohibition against appeal remains in place.

8. Conclusion and Expert Advice
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Navigating the complexities of Rule 43 applications can be challenging, especially during the emotionally charged process of divorce. Seeking professional legal advice is crucial to ensure that your rights and interests are protected. By understanding the purpose, process, and impact of Rule 43 applications, you can effectively advocate for your needs and secure the best possible outcome for yourself and your children.

Relocating with minor children after a divorce can be a complex and emotional process. It often involves legal considerations, as well as the best interests of the children. Whether you are considering relocating or your ex-spouse is proposing a move, it's important to understand the legal factors involved and how to protect the well-being of your children. In this comprehensive guide, we will explore the legal considerations, the process, and the safeguards in place when relocating with minor children after divorce.

Table of Contents

1. Introduction
2. International Travel with Minor Children
3. Relocation - Factors Considered by the Court
4. Guardian's Consent
5. Consideration for Parents
6. The Relocation Process
7. Parenting Plan Update
8. Travel Documents
9. Child Support
10. Seeking Legal Guidance
    

1. Introduction

When a couple goes through a divorce, one parent may choose to relocate to another city, province, or even country. This decision can be driven by various factors, such as family bonds, career opportunities, or a fresh start. However, when minor children are involved, the courts may need to be involved to ensure their best interests are protected. The court will consider several factors before making a decision on relocation, with the child's well-being being paramount.

2. International Travel with Minor Children

Before discussing permanent relocation, it's important to understand the legal requirements for international travel with minor children. If both parents share equal parental rights and responsibilities, written consent from the other parent is required before a parent can travel with a minor child. This consent is necessary to prevent child abduction and ensure both parents are involved in major decisions concerning the child. The Immigration Act 13 of 2002 reflects this requirement. If consent cannot be obtained from the other parent, the traveling parent may seek consent from the High Court.

3. Relocation - Factors Considered by the Court

When determining whether the relocation of a child is in their best interests, the court takes into account various factors. These include recommendations from child experts, consultations with both parents and the child, and an assessment of the proposed new circumstances, such as employment, schooling, and living conditions. The court also considers the child's emotional, psychological, and physical well-being. In some cases, the court may order psychological evaluations to assess the impact of the proposed relocation on the child. Additionally, the court will consider how contact between the child and the non-relocating parent will be maintained.

4. Guardian's Consent

In certain cases, obtaining the guardian's consent may be necessary for relocation. While both parents typically have guardianship over the child, there are instances where guardianship is granted to one parent or someone other than the biological parents. This is usually done when the parents are unable to care for the child. Obtaining the guardian's consent is important to ensure the child's best interests are protected and to prevent unlawful relocation.

5. Consideration for Parents

While the court prioritizes the best interests of the child, it also takes into account the rights and needs of the parents. In cases where relocation is proposed, the court considers factors such as stability, routine, and the impact on the parent who is not the primary caregiver. The relocating parent's ability to provide a suitable home and maintain regular contact between the child and the other parent is also considered. It is important to strike a balance between the child's best interests and the rights and needs of both parents.

6. The Relocation Process

If both parents agree to the relocation and it is in the best interests of the child, the process is relatively straightforward. However, if one parent opposes the move, obtaining a court order permitting the relocation may be necessary. The parent wishing to relocate must provide proper notice to the other parent well in advance of the proposed move. This notice should include the reasons for the relocation, the proposed new location, and a provisional updated parenting plan. South African law encourages parents to use mediation to resolve disputes related to children before resorting to court. If agreement cannot be reached, the matter may proceed to court.

7. Parenting Plan Update

A parenting plan outlines how parents will exercise their rights and responsibilities regarding the children. It is essential to have a parenting plan even in amicable divorces, as it clarifies the roles and powers of each parent and addresses details such as holiday arrangements. If the court permits the relocation, the parenting plan will likely need to be amended to accommodate the new arrangements, particularly regarding contact visits, holidays, communication, and travel.

8. Travel Documents
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If the relocation involves international travel, it is necessary to have the appropriate travel documents for the children. Additionally, written authorization from the non-relocating parent is required to comply with the Immigration Act 13 of 2002. If the child and the relocating parent have different surnames, additional documents may be required, such as the child's original birth certificate.

9. Child Support

Relocation may necessitate modifications to child support or maintenance arrangements. If there is a significant change in living arrangements or expenses due to the relocation, it is crucial to address these changes as part of the overall plan and document them in the written parenting plan.

10. Seeking Legal Guidance

Relocating with minor children after a divorce involves various legal complexities. It is essential to consult with a family law attorney who specializes in divorce and child custody matters. An experienced attorney can provide personalized advice and guidance based on your specific situation, helping you make decisions that prioritize the best interests of your children while complying with South African family law.

In conclusion, relocating with minor children after a divorce requires careful consideration of the legal factors involved and the best interests of the children. It is crucial to understand the requirements for international travel, the factors considered by the court in relocation cases, and the need to obtain the guardian's consent in certain situations. Both parents' rights and needs should also be taken into account, and the relocation process should involve updating the parenting plan. By seeking legal guidance, you can navigate the complexities of relocating with minor children and ensure the well-being of your children is protected throughout the process.

Divorce is a life-altering event that has emotional, legal, and financial implications. While it is important to prioritize your emotional well-being during this time, it is equally crucial to understand the impact divorce can have on your financial future. In this article, we will explore the various financial aspects of divorce, including the types of divorce, matrimonial property regimes, hidden or dissipated assets, asset division and maintenance, choosing a financial adviser, and updating your estate planning documents. By understanding these key factors, you can navigate the divorce process with confidence and make informed decisions about your financial future.

Types of Divorce and Their Costs

In South Africa, there are three types of divorces: uncontested divorce, mediated divorce, and contested divorce. Each type has different implications for the duration and cost of the divorce process.

1.   Uncontested Divorce:

An uncontested divorce is typically the quickest and least expensive option. This type of divorce occurs when both parties agree on all the terms of the divorce, including asset division, child custody, and spousal support. It is important to note that even in an uncontested divorce, it is advisable to seek legal advice to ensure all legal requirements are met.

2.   Mediated Divorce:

In a mediated divorce, couples who are unable to reach an agreement on the terms of their divorce employ the services of an attorney and/or professional mediator. The mediator acts as a neutral third party to facilitate discussions and negotiations between the spouses. While a mediated divorce may take longer and be more costly than an uncontested divorce, it is generally quicker and less costly to finalize than a contested divorce.

3.   Contested Divorce:

A contested divorce occurs when the spouses are unable to agree on one or more aspects of their divorce. This type of divorce can be lengthy, emotionally draining, and expensive, as it often requires court intervention to settle disputes. It is advisable to seek legal representation in a contested divorce to protect your rights and interests.

Matrimonial Property Regimes and Asset Division

The financial implications of divorce largely depend on the matrimonial property regime in place. In South Africa, historically marriages were "in community of property," which means that assets and liabilities acquired during the marriage are shared equally between the spouses. However, this principle can be modified or excluded by an antenuptial contract or ANC.

1.   In Community of Property:

Marriages enacted without an ANC are considered "in community of property." This means that all assets and debts acquired during the marriage are shared equally between the spouses, regardless of who acquired them. In the event of divorce, the assets and debts are divided equally between the spouses.

2.   Out of Community of Property with Accrual:

Marriages enacted with an ANC in place are deemed "out of community of property," either with or without accrual. In a marriage out of community of property with accrual, each spouse retains the assets they owned before the marriage but shares in any gains made during the marriage (unless, certain assets were excluded between the parties). In the event of divorce, the assets and debts are divided according to the accrual calculation.

3.   Out of Community of Property without Accrual:

In a marriage out of community of property without accrual, each spouse retains their own assets and liabilities, and if the marriage is dissolved, each keeps their own estate plus all growth accrued during the marriage.

It is essential to consider the matrimonial property regime when determining how assets and debts will be divided upon divorce. Seeking legal advice from a qualified attorney can help ensure a fair and equitable division of assets.

Dealing with Hidden or Dissipated Assets

One of the most challenging aspects of divorce can be dealing with a spouse who is hiding or dissipating assets. It is crucial to ensure a fair division of assets, and this becomes difficult when one party is not transparent. If you suspect that your spouse is hiding assets, it is important to gather as much financial information as possible and seek legal advice.

1.   Gathering Financial Information:

To uncover hidden assets, gather any financial documents, such as bank statements, financial records, or communication records that indicate hidden assets or financial transactions. Your attorney can assist you in hiring a forensic accountant or financial expert who specializes in uncovering hidden assets. These professionals have the expertise to trace financial transactions and analyze relevant documents to identify any hidden assets or income.

2.   Accountability Measures:

In the divorce procedure, there are various accountability measures, such as discovery or subpoenas to financial institutions. Discovery is a legal process that allows both parties to request information and documentation from each other. A subpoena is a formal written order that requires a person or organization to appear before a court or produce documentation. Your attorney can use these tools to force your spouse to disclose financial information and provide documentation related to their assets and income.

3.   Anti-Dissipation Order:

​Another tactic that can complicate asset division is the dissipation of assets after the initiation of divorce proceedings. Dissipation refers to the wasting of marital assets to prevent the other spouse from receiving a fair share of the marital estate. To prevent dissipation, you can seek an anti-dissipation order from the court. If you suspect your spouse is dissipating assets, inform your attorney, who can present the evidence to the court. The court can then order your spouse to disclose all assets and provide accurate financial information. Non-compliance with court orders can have serious consequences.

Mediation as an Alternative

In cases involving hidden assets or complex financial situations, mediation can offer an alternative approach to resolving financial issues. Mediation provides a less adversarial environment in which to address financial matters and can be particularly useful when dealing with hidden assets. A mediator, who acts as a neutral third party, can help facilitate discussions and negotiations between you and your spouse, ensuring a fair and equitable resolution.

Asset Division and Maintenance

Asset division and maintenance are significant financial aspects of divorce. It is crucial to have a clear understanding of your financial situation, including all assets and liabilities in the estate(s). This includes property, investments, retirement funds, and debts. When it comes to asset division, it is important to consider factors such as the value of the assets, any prenuptial agreements, and the needs of both parties involved.

Maintenance, also known as alimony or spousal support, is another financial aspect to consider. The amount of maintenance is determined by several factors, including the earning capacity of both parties, the standard of living during the marriage, and the needs of any children involved. It is advisable to consult with a qualified attorney to ensure a fair and reasonable maintenance arrangement.

Choosing a Financial Adviser

During a divorce, a financial adviser can provide valuable guidance and support. They can help you understand the financial implications of your divorce agreement and assist in planning for your financial future. When choosing a financial adviser, consider their experience with divorce, their credentials, and their approach to financial planning. It is essential to work with someone who understands your unique financial situation and can help you make informed decisions.

Updating Your Estate Planning Documents

After a divorce, it is crucial to update your estate planning documents to reflect your new circumstances. This includes updating your will and reviewing the beneficiaries on your insurance policies, retirement funds, and other financial accounts. Failure to update these documents may result in unintended consequences, and assets may not be distributed according to your wishes. Consult with an attorney or estate planner to ensure your estate planning documents accurately reflect your current wishes and circumstances.

The Cost of Divorce and Fee Structures

Divorce can be financially challenging, and it is important to consider the cost of the process. At Maurice Phillips Wisenberg Inc, we understand the financial strain that divorce can bring. That's why we offer value-based fees, charging a flat rate for our services. This approach provides certainty and allows you to plan your finances effectively. By contrast, hourly-based fees can be unpredictable and contribute to the anxiety caused by divorce. While the cost of a contested divorce can be challenging to estimate upfront due to the uncertainty of court proceedings, our team always strives to provide an estimate of the likely time and cost involved.

Seek Guidance from an Expert Divorce Attorney

Divorce is undoubtedly a challenging time, but understanding the financial implications can help you navigate the process with confidence. At Maurice Phillips Wisenberg Inc, we provide expert legal advice and support every step of the way. If you have concerns or questions about the financial implications of divorce or would like to have a preliminary discussion in confidence, contact 021 419 7115 or email familylaw.co.za.

Conclusion

Divorce is a complex process that involves emotional, legal, and financial considerations. By understanding the financial implications of divorce, including the types of divorce, matrimonial property regimes, hidden or dissipated assets, asset division and maintenance, choosing a financial adviser, and updating your estate planning documents, you can make informed decisions about your financial future. Seek guidance from qualified professionals, such as attorneys and financial advisers, to ensure a fair and equitable resolution that protects your rights and interests. Remember, divorce is a new chapter in your life, and with the right support, you can navigate it successfully.

​Divorce is a difficult process for all involved parties, and it can be even more stressful and emotionally draining when a divorce is contested. While many couples choose to settle their divorce amicably, some are unable to agree on key issues, leading to a contentious divorce. In this blog post, we will compare an amicable divorce to a contested divorce and highlight the differences between the two.

An amicable divorce, also known as an uncontested divorce, is one where both parties agree on all issues related to the divorce. This type of divorce typically involves fewer legal fees, less time spent in court, and less emotional distress for both parties involved. Couples who choose to settle their divorce amicably are generally able to negotiate an agreement that is fair and equitable for both parties.

On the other hand, a contested divorce is one where the couple cannot agree on key issues, such as child contact, division of assets, or maintenance payments. In these cases, the couple may need to go to court to have a judge make a decision on these issues. This process can be lengthy, expensive, and emotionally draining for both parties involved.

One of the main differences between an amicable divorce and a contested divorce is the level of control the couple has over the outcome. In an amicable divorce, the couple negotiates the terms of the divorce themselves, which allows them to have more control over the outcome. In a contested divorce, a judge makes the final decision, which means that the couple has less control over the outcome.

Another difference between the two types of divorces is the impact on children. In an amicable divorce, the couple is generally able to work together to create a parenting plan that is in the best interests of the children. In a contested divorce, children can be caught in the middle of the conflict between the parents, which can be emotionally damaging.

Legal fees can quickly add up in a contested divorce, especially if the couple needs to go to court to settle their disputes. In an amicable divorce, the couple can save money by negotiating the terms of the divorce themselves.
The benefits of an uncontested divorce versus a contested divorce when doing it online in South Africa are as follows:

1. Cost-effective: An uncontested divorce is generally less expensive than a contested divorce as it does not require extensive legal representation or court appearances. Additionally, using an online platform for the divorce process further reduces costs by eliminating travel and consultation fees.
2. Time-efficient: Uncontested divorces are often faster to resolve than contested ones, as there are fewer issues to negotiate. The online platform streamlines the process further by automating document generation and legal reviews.
3. Less stress: The amicable nature of an uncontested divorce reduces stress levels for both parties involved. Online divorce platforms also provide support and guidance throughout the process, making it easier for individuals to navigate the legal system.
4. Private and Confidential: An uncontested divorce is generally a more private affair as there are no courtroom battles or public appearances. The online platform also ensures confidentiality of the parties involved.

Overall, an uncontested divorce done online in South Africa provides a convenient, cost-effective, and streamlined alternative to the traditional divorce process, making it an attractive option for many couples.

Divorce is never an easy process, but when dealing with a narcissistic spouse, it can become particularly challenging. Narcissists tend to be self-centered and lack empathy, which can make negotiations and compromises difficult. However, there are ways to navigate a divorce with a narcissistic spouse and come out on the other side.

First and foremost, it's essential to establish boundaries. Narcissists are known for being controlling and manipulative, so it's crucial to be clear about what you will and won't tolerate. This means setting boundaries around communication, negotiation, and decision-making. It may be helpful to work with a divorce attorney who has experience dealing with narcissistic personalities to ensure that your boundaries are enforceable and legally sound.

Another crucial aspect of dealing with a narcissistic spouse is understanding their behavior. Narcissists are often motivated by a need for attention, validation, and control. They may try to drag out the divorce process, refuse to compromise, or try to turn others against you. By recognizing their behavior patterns, you can better anticipate their actions and prepare accordingly.

It's also essential to prioritize self-care during this challenging time. Dealing with a narcissistic spouse can be emotionally draining, so it's essential to take care of yourself. This means engaging in activities that bring you joy, seeking support from friends and family, and considering therapy to help you process your emotions and develop coping strategies.

Finally, it's important to stay focused on your goals and objectives. Narcissists may try to distract or derail negotiations, but it's essential to keep your end goal in mind. Work with your attorney to develop a plan for negotiating and compromising, and stay firm in your convictions. Remember that you have the right to a fair settlement, and don't let your narcissistic spouse deter you from achieving it.

In conclusion, divorcing a narcissistic spouse can be a challenging and emotionally taxing process, but it is possible to come out on the other side. Establishing boundaries, understanding their behavior, prioritizing self-care, and staying focused on your goals are all key strategies for navigating a divorce with a narcissistic spouse. With the right support and approach, you can successfully navigate this difficult situation and move forward with your life.

Written By Bertus Preller
Family and Divorce Law Attorney

MN v SN (10540-16) [2020] ZAWCHC 157 (13 November 2020) 
Court: Western Cape Division, Cape Town
Case No: 10540/16
Date heard: 2 November 2020
Delivered: 13 November 2020
Judge: Rogers, J

HEAD NOTE 

Contempt of court – Where the husband breached a rule 43 order – The court recognized that the business that he worked for had experienced financial hardships due to covid – The husband did not earn a salary during some months – Despite the fact that he co-owned a fully paid house with his new partner well worth R3,5 million – It was held that he could not be expected to
force her to agree to sell a portion of the house – It was held that his contempt was not intentional and mala fide.

SUMMARY

The wife (applicant) wanted to hold her husband (the respondent) in contempt for violating a rule 43 order that was reached by agreement between the parties. It was common cause that the husband knew about the order and its provisions. The only thing that had to be decided was whether he transgressed the order willfully and with mala fides. If not, then he could not be found in contempt. (See Fakie No v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 14.

The matter was enrolled on the urgent court roll. Nevertheless, the parties had it postponed twice by agreement even though it was ready for hearing. The respondent contended that the court ought to strike the matter off the roll for lack of urgency on that basis. The court turned down his arguments. It was held that contempt proceedings are urgent by their nature simply because the vindication of the court’s authority is at stake (See Protea Holdings Ltd v Wriwt & another 1978 (3) SA 865 (W) at 868B-869A).

It was also reasoned that they are especially urgent mainly because it is often women and children who are in the care of the breached orders.

A technical argument for non-compliance with Rule 41A was also raised. This new rule calls for parties to try and mediate before coming court. The court refused the argument considering the legal representatives for the respondent did not persist on mediation throughout the exchange of the various notices. It was argued that there was a verbal agreement in which the parties consented that the husband would temporarily stop paying money for the domestic worker. A recording was made available as evidence, but the court found that the only impression drawn from the recording was that the husband was manipulative. The wife replied to his statements, spontaneously and emotionally.

Counsel for the husband also attempted to bring arguments based on set-off, as the wife owed some money to the husband’s family business. But the court found that an obligation to pay maintenance in respect of a wife and children is not susceptible to set-off (See Tregonong v Tregonong 1914 WLD 93, and Hodges v Coubrough NO 1990 (3) SA 58 (D) at 65A-B). Before concluding, the court observed that the family business encountered some severe financial difficulties due to COVID.

The husband used to own interests in the family business but was compelled to dispose of
them because of extensive borrowings from the company. Recently, there were some months in which he did not get a salary at all, and in other months he received TERS payment of around R6000,00. Even though he co-owned a R3,5 million property that was completely paid with his new partner, the court found it was unrealistic to have expected him to force his partner to agree to sell a portion of the house.

In summary, it was held that the husband could not be found in contempt. The costs of the suit were reserved for determination in the divorce trial.

​The increased use of Information and Communication Technology in the past ten years has added to the increase of a new form of Gender-Based Violence. Because of to the increasing use of technology and the internet, women are more susceptible than ever to abuse and violence. Women encounter several forms of technology-related violence such as non-consensual intimate images commonly known as “revenge pornography”, doxxing, extortion, bullying, stalking, and sexual harassment. The degree to which women are violated online is not known since most cases go unreported. Research conducted by WOUGNET on technology-related violence against women in 3 peri-urban districts of Uganda revealed that 74% of respondents might report technology-related violence against women to the police, 2% to social media owners, parents, or local leaders, 9% to the Ministry of Information and Communications Technology, and 11% said they wouldn’t know where to report. 65% of respondents were women, while 35% were men.

The world of divorce can be a dirty and terrifying place and as soon as the love is lost, it can develop into a dirty fight. Revenge porn is the act of posting private or sexual photos or videos of a person, usually an ex-partner, without their consent. Individuals who engage in this conduct do so with the intention to humiliate and threaten the victim, but what happens when the person leaking your photographs is your former spouse? Revenge porn in divorce cases is a increasing issue in family law that we are witnessing more frequently, and people must be mindful of the consequences one may deal with if you indulge in the act. Unfortunately, a divorce can generate much resentment in an already overwhelming process, and spreading images as revenge porn during the course of divorce proceedings is a contemporary addition to the many intimidating and spiteful actions many people may choose to take. Revenge pornography fundamentally deals about stalking or misusing personal and private data. It is the distribution of sexually explicit images or videos without their consent. It is also a domestic violence against women. The objective of the perpetrator is to shame the victim, to disturb them or even as a vengeance. Although both men and women could possibly be victims, women are exceptionally becoming the targets. In most cases, it is women who consensually share their nude images and videos to the person they are in love with which becomes a self-trap for themselves. 

Nearly one in ten Brits have had their naked pictures or videos shared without their permission, new research has shown. The vast majority of victims, 81 percent, stated they knew who the culprit was, with one in three being their ex-partners in an act of ‘revenge porn’. Nearly one in five (17 percent) stated the crime was committed by a ‘friend.’

The vast majority of the victims had been women who said the material was used as a form of coercion or control, with one half of victims being threatened prior to the image was released.

Attempts were made to extort them beforehand by demanding money, threatening to show the images to family or friends or attempting to control them or force them back into a relationship after a separation.

Motivated by vengeance, ex-spouses have been known to withhold kids from their former partner, alienate kids from the other parent and even cause the court process to go on for longer so that their former partner has to spend more money.

Social Media has the power of distributing the news and information both in positive or negative ways. It acts not only as a tool for communicating but also as a platform for exchanging and sharing information. Thus, the very first source for revenge porn to become viral is social media. If social media is under control, then the problems of revenge porn will be decreased to a great extent. Revenge porn begin with cyberbullying. The person who bullies will immediately circulate it in the social media as his next move. Companies such as Facebook, Twitter and Google have launched some steps they’re taking in order to fight the growing issue. According to NBC News, Facebook built a team of people to fight against the non-consensual posting of inappropriate pictures and videos. The company, which also owns Instagram, evaluates almost half a million revenge porn reports in order to rapidly remove the content. Facebook also uses artificial intelligence to identify the images. In 2015, Twitter modified its rules pertaining to revenge porn on its platform, saying that users may not post intimate pictures or videos without the subject’s approval. The platform also enables users to report tweets that may include inappropriate content. The same year, Google took a stand against the issue, saying it would honor any demands made to eliminate intimate pictures or videos of their search results. 

South Africa's current criminal law remedies provide a charge of crimen injuria, criminal defamation, or even extortion, whilst civil remedies incorporate damages for defamation or an interdict based on a infringement of copyright (where the victim took the photograph themselves). Revenge porn is defined by the Film and Publication Bill of 2015, as the sharing or distribution of any nude or sexually explicit material without permission or consent with the express purpose of humiliating the victim or to make a profit. The Protection of Personal Information Act 4 of 2013 (POPI) provides victims of revenge pornography the relief to initiate a civil claim for damages against a perpetrator. Section 99(1) of POPI expressly allows a victim the right to claim non-patrimonial damages against the responsible party. The accused can be charged with the intentional distribution of private sexual photographs or films without the prior consent of the individual and/or distributing the sexual photos and films to cause harm and emotional distress to the victim. If the perpetrator is convicted of any of these charges, he/she can be sentenced to a maximum sentence of two years or a fine of up to R 150 000.00. If the victim is identified by being named or the footage is not blurred, this sentence can increase to a maximum of four years in prison or a fine of up to R 300 000.00

The Protection from Harassment Act 17 of 2011 also allows a victim of revenge pornography to apply for a protection order, which in turn is paired with a suspended warrant of arrest.