What Does Financial Disclosure in Divorce Proceedings Entail in South Africa? 

Written by: Colleen Mechanic 

29 March 2023

What is financial disclosure in divorce proceedings? 

Aside from the emotional effects of a divorce, there are obviously also inherent financial implications. In South Africa, financial disclosure in divorce proceedings is a critical part of the legal process where both parties are required to provide a full and frank disclosure of their financial situation. Whether the parties are married in or out of community of property, questions often arise as to how the parties’ financial affairs will be divided, whether one party will be held liable to pay maintenance to the other, and how much maintenance each party should pay either to the other or in respect of any children that they may share. The financial disclosure process ensures a fair division of assets, spousal maintenance, and child support.

When Does Financial Disclosure Become Relevant in a Divorce? 

The first step in considering issues relating to maintenance is to determine the extent of each party’s estate, whether joint or separate. To this end, the parties’ legal representatives often request that the other party provide them with details of their financial affairs, including assets, liabilities, and a monthly budget of their income and expenditures.

What Happens When a Party to Divorce Proceedings Does Not Wish to Provide Accurate Financial Disclosure Documentation? 

If a party to a divorce does not want to provide financial disclosure documentation, they often either refuse to provide this information or provide financial disclosure documentation reflecting figures that simply cannot be true.  For instance, a spouse who wants to indicate that their estate is significantly smaller than it is in reality may:

  • not list the entirety of their assets;
  • list their assets but with the values of the same being hopelessly undervalued;
  • transfer assets into the names of their family and friends as a way to remove them from the equation altogether;
  • take on additional expenses and liabilities and/or
  • overdeclare the extent of these expenses and liabilities.

What Are the Implications of Failure to Provide Financial Disclosure Documentation During a Divorce? 

As well as being unjust, failure to provide financial disclosure documentation during a divorce is a significant obstacle to the fair division of a joint estate and the fair allocation of maintenance obligations. As noted by Spilg J in TS v TS (28917/2016) [2017] ZAGPJHC 244; 2018 (3) SA 572 (GJ), failure to provide financial disclosure documentation makes it difficult to determine the fair spousal and/or child maintenance payable in Rule 43 applications for interim maintenance, and thus, the said judge emphasised the importance of full and frank financial disclosure during such proceedings. It is imperative that the Court be placed in a position to properly assess each party’s respective means to fairly determine the maintenance payable and any contribution towards either party’s legal costs, which may be required to ensure that the parties are able to litigate at the same level.

How Does One Assess the Financial Disclosure Documentation Provided in a Divorce? 

If the spouses shared details of their finances during their marriage, the other spouse could identify a false or incomplete financial disclosure simply by carefully perusing the financial disclosure provided to identify any inconsistencies and check that all assets they are aware of have been declared.  For instance, if you were aware that your partner had been earning R50,000.00 a month during the marriage, and they are now disclosing an income of R35,000.00 a month, this should raise some eyebrows. If no bonuses have been declared, but you recall that your annual vacations were always paid for with these eagerly awaited funds, this should also be pointed out to your legal representative. Your legal representative can also do a search in your spouse’s name at a deeds office or through the Companies and Intellectual Property Commission’s database to ensure that the other party has not failed to disclose immovable property registered in their name or business interests.

Who Can Assist with Determining the Opposing Party’s Financial Situation in a Divorce? 

In the worst-case scenario, it may be necessary to appoint a forensic auditor to determine the true financial position of a party to a divorce, should they fail to disclose or produce complete financial declarations. This is particularly relevant when a spouse runs their own business, in which case the auditor can also conduct a valuation of the business. However, appointing a forensic auditor is an expensive exercise, which places it out of the reach of many a spouse who has been the victim of financial abuse by their spouse and is consequently not in a position to pay for this. As a result, our courts have attempted to assist these spouses by issuing Practice Directive 2 of 2020.

What Have the Courts Ordered with regard to Financial Disclosure in a Divorce? 

In Practice Directive 2 of 2020, dated 10 January 2020, the Judge President issued a directive that a Financial Disclosure Form must be completed under oath and provided by each party, together with the supporting documentation referred to therein. The parties are obliged to make full and frank disclosure of all their relevant financial information, as well as any other factors that may be relevant to their financial affairs, in a uniform manner.

When is a Financial Disclosure Form Necessary in a Divorce? 

The Financial Disclosure Form is a comprehensive document covering some 20 pages, that is required of each party in an opposed divorce action in which maintenance or proprietary relief is in dispute and in every opposed Rule 43 application in which maintenance is in dispute.

What Are the Benefits of Full Financial Disclosure? 

Full financial disclosure places the Court in a better position to assess the parties’ respective financial interests without the need for the parties to file lengthy affidavits to make or defend their respective cases. The Financial Disclosure Form will also simplify the discovery process and encourage early settlement by the parties.  If a settlement cannot be reached, the Court is empowered to determine the matter that best serves the proper administration of justice and ensures that the best interests of any minor children are protected.

What Are the Consequences of Dishonesty During Financial Disclosure in a Divorce? 

Should it become evident that funds have indeed been hidden or unlawfully moved out of someone’s estate, the Court will view this in a very serious light and will draw an adverse inference about that party’s credibility. There are also several other legal consequences that may be imposed.

Firstly, since the Financial Disclosure Form is completed as an affidavit, deliberate dishonesty by a party is considered perjury, which is an offence. Deliberate dishonesty may also lead to a charge of statutory fraud if the spouse is found to have hidden assets or even be in contempt of court proceedings.

Furthermore, dishonesty regarding financial disclosure may also be used as one of the grounds required to request that the court order that the guilty spouse forfeit those assets in the division of the estate or the calculation of the accrual. Should the aforementioned forfeiture order be insufficient, for example, where a guilty spouse has sold a jointly owned property without the other spouse’s consent, an application can be made to the Court to set that sale aside to place it back within the joint estate.

Conclusion

Clearly, the parties’ respective financial disclosure is a crucial aspect of proceedings relating to the divorce action, and care should be taken to ensure that this is done properly and comprehensively. Ensuring that the opposing party’s full, frank, and complete financial disclosure is obtained and properly assessed is also important. Should you require assistance with this, please do not hesitate to contact Burger Huyser Attorneys’ family law and divorce attorneys to assist you.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE