Whilst the concealing, and uncovering, of assets is certainly not limited to divorce cases, it is one of the areas where issues commonly arise. A spouse/partner may be severely prejudiced if she/he is not aware of what is happening to her/his joint financial affairs.
Forensic practitioners are therefore often asked to become involved in the disputes which arise. Even basic information may assist in narrowing avenues of possible investigation and facilitate lifestyle audits.
Below are some pointers in this regard:
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Be generally aware of your legal rights and obligations before entering into marriage or some other relationship, and on an ongoing basis thereafter.
Make sure you know from the outset what your legal rights and obligations are in a marriage or in any other long-term relationship and ensure, as far as possible, that you make appropriate arrangements from the start. For example, take advice on antenuptial contracts and the application of the accrual system and conclude any agreement necessary.
Even after you are married or are in some other long-term relationship, keep pace with legal and related developments.
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Be conscious of your partner’s or spouse’s financial investments and activities from the start of your relationship.
Whilst everyone hopes that her/his relationship will last, the unfortunate reality is that many do not. While it is not necessarily suggested that you maintain anything akin to detailed accounting records on yourself and your spouse/partner, it is important to be aware of what is going on around you. For example, if your spouse suggests a family trust or the creation of specialist investment vehicles, understand what is involved and what the implications may be for you.
If your marriage or partnership starts to deteriorate (even if you believe that all may be well in the end), be on the lookout for any suspicious events that may herald possible divorce proceedings.
For example, a pattern of payments to unusual bank accounts, the running up of large debts by your spouse, the non-payment of bonuses in your spouse’s business in a particular year, overseas business trips by your spouse/partner, the unforeseen postponement of an annual overseas holiday and so on, may mean that money is being diverted.
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Gather as much relevant information as possible.
If it seems that divorce or separation may be inevitable, try to obtain copies of documents such as:
- identification documents, not just for your spouse/partner, but step/children as well as other family members and friends who may be “looking after” funds on behalf of your spouse/partner;
- a list of common assets;
- title deeds to immovable properties and/or any mortgage bonds; and
- bank statements (or at least bank accounts), trust deeds, bank account statements (or details of bank accounts – both in South Africa and in other countries);
- a list of assets and liabilities that you are aware of, as well as sources of income and ordinary expenditure.
Finally, if you are considering divorce or separation, or sense that your spouse or partner may be considering the same, have a chat at an early stage with your lawyer, accountant and any other professional advisers about the possibility of hidden assets and the things for which you should be looking out.
Let your forensic practitioner also advise you on the need, if any, for private investigators and let her/him make the arrangements and manage any such engagement, as far as is reasonably possible.
Many private investigators are good at obtaining information, but issues can often arise as to whether the information obtained can be used in court. For information to be obtained that can be used, it needs to be done in an evidentially-sustainable manner, so do take advice in this regard.
While it is hoped that none of the above may ever be necessary, as the old saying goes, “Forewarned is fore-armed”!