Divorce - duty to disclose financials
A divorce matter is only “ripe” to be heard once each party has provided a full and frank disclosure of their financial position to the other party. This would include:
- pay slips,
- tax returns,
- pension details,
- property and business valuations,
- valuations of movable assets,
- share valuations,
- details on debts and/or
- any other financial documentation.
Slow disclosure means slow divorce
If a client really wants the divorce to go through as a matter of urgency, he/she should do anything in his/her power to obtain the aforementioned documentation to assist the attorney in preparing for trial. Failure to produce such documentation would merely result in postponements and additional costs being incurred.
Make discovery on oath
In terms of the court rules the attorney should before the trial serve a notice on the other side requesting them to make discovery on oath of all documents relating to any matter in question in the action (whether such matter is one arising between plaintiff and defendant or not) which are or have at any time been in the possession or control of the other party.
Make documents available for inspection
An attorney should also require the documents to be made available for inspection within a certain amount of days after delivery of the other party’s “Discovery Affidavit”. The high court rule dealing with discovery is “Rule 35” and the southern divorce court rule is “Rule 26”.
The aim of discovery is to shorten the trial, and afford the attorneys an opportunity before the trial to examine all documentation which would be used as evidence in that trial. The discovery affidavit would also include all correspondence between the two attorneys. Correspondence between attorney and client is however not included in the discovery affidavit as it is confidential.
Additional discovery affidavit
If an attorney is not satisfied that the other attorney has disclosed all relevant documentation, and believes for example that certain assets had been excluded, he/she is entitled to request an additional discovery affidavit. “Discovery” is a vital part of the divorce trial, and a court will not consider hearing a matter if there has not been sufficient discovery.
Family, Estate & notarial legal services
Next steps
Once full disclosure has been made, if you were married with an antenuptial contract with application of the accrual principle; then you'll want to input the values of the assets and liabilities into a spreadsheet which applies the ANC accrual and calculates what each party should get.
Ending an ANC with Accrual marriage
Free Antenuptial contract with accrual spreadsheet template for the division of the joint estate.
- Division of the joint estate for ANC with accrual divorce.
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- The duty to disclose your financials when divorcing:
- Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act) .
- Divorce full disclosure clause
- Example of ANC with accrual marriage contract.
- Property
- Donation of property agreement not followed through.
- When property is erroneously in your spouse's name.
- Conveyancers conduct the transfer of property ownership from one spouse to another (or to a third party, if relevant).
- Divorce settlement clauses
- Enforceability of antenuptial contract overseas
- Amending an antenuptial contract
- Postnuptial contract - for when you're already married and realise you should have entered into an antenuptial contract, or you want to amend an existing agreement.
- Marriage
ANC with Accrual discussion forum
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