A ground-breaking judgment will help women get maintenance from their rich former husbands who try to hide their money offshore.
The problem to date, which especially affects women, is that a spouse going through a divorce might know that their partner has a lot of money stashed somewhere, but they can’t prove it without hiring expensive detectives, accountants and lawyers.
Existing court procedures make it even more difficult because a party requesting interim maintenance is not allowed to put unnecessarily lengthy submissions before the court.
Moneyweb reported on one such matter in which a single mother from Pretoria arrived at court with seven files full of financial documents, but the magistrate refused to go through the material.
Now a full bench of the Johannesburg High Court has delivered a judgment that could radically change the situation.
Judges Motsamai Makume, Jody Kollapen and Lebogang Modiba approved a 20-page financial declaration form that can be filled in on request by the parties to a divorce.
It asks for a lot more than payslips, bank statements and tax returns.
Those getting divorced will have to declare, under oath, every cent of their assets, employment benefits, interests in trusts and companies, as well as immovable assets, such as paintings, jewellery and vehicles.
Even the meal, travel and accommodation allowances from their employer have to be filled out.
If a party lies under oath, they can be prosecuted for perjury.
Although the judgment is binding only in the high courts, magistrates’ courts and maintenance courts in Gauteng, it will have strong persuasive authority in any other courts should anybody choose to rely on it.
The court was asked to give clarity on rule 43 applications, which is when one party in a divorce asks for a contribution to their legal costs or for maintenance for themselves or their minor children during the course of the divorce.
Legal experts told City Press’ sister paper, Rapport, that the effect of the new practice would extend beyond maintenance because the assets of the respective parties would be placed on record immediately for the purposes of division, where applicable.
Riëtte Oosthuizen, a family law practitioner from Pretoria and a member of the Gauteng Family Law Forum, said it had held lengthy consultations about how South African law could be aligned with English law in respect of maintenance claims.
It made submissions in respect of the court case.
English law requires that a detailed financial form be filled in within the first six months after court pleadings have been exchanged.
The form must be completed under oath.
She said that it works as follows in South Africa: “You first have to prove your whole case and that proof becomes valid only on the date of the divorce. And it is expensive to prove it. The opposite party can stretch the case out and dispose of assets. In the end, you get only what you can prove.”
She said the Gauteng high courts would in all likelihood implement the judgment quickly.
She said the judgment should also be applicable to the corresponding magistrates’ court rule 58, which is applicable to people claiming maintenance in divorce cases in a regional court.
Oosthuizen said the most popular places for South African men to hide their wealth were UK islands, such as Guernsy, Ilse of Man and Jersey. They also chose the US and Europe.
In a separate judgment, the high court ordered a wealthy man from Johannesburg to contribute R8.3 million to his ex-wife’s legal costs. This was on top of her monthly maintenance of R106 000.
The woman alleged her ex was “exceptionally wealthy” and tended to hide his assets in companies registered in Panama.
The directors would be based in Lichtenstein and Switzerland.
Martin-Dean Hayward, a family law practitioner from Centurion, said the problem with the rule 43 application was that parties had a tendency to exaggerate in their affidavits.
The financial declaration would overcome this.
“I can see if they are blatantly lying or if they are exaggerating their expenses or needs. I mostly represent women. If they, for example, are claiming R4 000 or R5 000 a month for hair and make-up, one has to ask if that is reasonable under the circumstances.”
Maintenance needs on the new form include fresh flowers, swimming pool chemicals, lunches, internet, hair care, make-up, parking, reading material, sport and plants.
The full bench of judges said that courts hearing these kinds of applications could decide whether it would be appropriate to make an order that one or both make a full financial declaration.
The judge can then ascertain the true lifestyle of the parties.
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