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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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About 16 months ago my wife filed. We are married with ANC

Customer Question

About 16 months ago my wife filed for Divorce. We are married with ANC with accrual system. The values were set 5years ago before marriage.
6 months ago I heard that she has cancelled her life policies and investments thereby decreasing her assets considerably which in fact has prejudiced me in that according to the accrual assets there is a huge difference now.
Is she allowed to do this? If so what is stopping me from doing same?
Submitted: 1 year ago.
Category: South Africa Law
Expert:  WCLawyer replied 1 year ago.

Good Morning

Life policies generally do not form part of the estate at the time of the dissolution of the marriage, so that should not prejudice you.

With regards ***** ***** rid of the investments, that would reduce her estate and that would potentially increase the accrual that she is entitled to. But, there is nothing that you can do about that.

You can, under section 8 of the Matrimonial Property Act, apply to court for an immediate division of the accrual. In other words, the accrual claim will be enforced without the need to get divorced first. The court will then also change the matrimonial property system to one out of community of property, excluding accrual and profit and loss.

This would be a High Court application for which you are going to need the assistance of an attorney.

I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.

Expert:  WCLawyer replied 1 year ago.

Apologies, I should have added that since divorce is pending, given her actions, you can also apply for a forfeiture of her benefits under the accrual system. That would be in terms of the Divorce Act.

Customer: replied 1 year ago.
This is a list of Assets as listed in the ANC. 1. Furniture R70,000.00 2.Cash R30,000.00 3. Momentum Provident Fund R6,965.66 4. Flexible Unit Trust R42,000.00 5 Discovery Life Insurance Policy R2,000 000.00. She has since cancelled 3,4,5 leaving her assets minimal. My question is what is stopping me from doing the same to bring my asset value down?
Expert:  WCLawyer replied 1 year ago.

Nothing.

Customer: replied 1 year ago.
What is stopping her then to go after the proceeds of the investments once she finds out that i had done that too? If i take the proceeds of the investment (Pension etc) and put it somewhere else, what can i do to prevent her from attaching it? Can i make a donation to my two sons as an example? Trust?
Expert:  WCLawyer replied 1 year ago.

A trust would work, but you need to be wary of donations tax if this a large amount of money. It would be best to see a financial planner or an attorney who can assist you with working out a plan that where the tax is not going to wipe you out.

Just note that item 5 on your list is not going to be included in the accrual claim. So, before you make a lot of potentially expensive moves, just make sure that your calculation of the accrual is correct and that you are not including your life policies in the value of your estate as well.

Customer: replied 1 year ago.
Sorry the previous list is what she included as her assets! This is a list of my assets: 1 Old M FlexiPension R52,061.48 2 Fairnbairn Capital Inv R1,049, 134.82 3 MTB and Racing Bicycles R45,000.00 4 Family Heirloom Watch R110,000.00.Since i turned 55 this year i could access the Capital investment Policy (Pension) and take out once off portion tax free. I will have to ascertain what total i can convert to cash tax free.But if the life policy has no value how was she allowed to include it in the ANC Accrual? Was this perhaps a plan of her to "screw" me one day? surely the Attorney that did the ANC would have advised her or me for that matter???I have never been an unfair person but just feels like i am being "Screwed" here.
Expert:  WCLawyer replied 1 year ago.

It should just be ignored in the calculation, in my opinion. I cannot say whether she did that on purpose, but I suspect that she also labored under the same mistake. I agree, the attorney should have probably told you that a life policy is not an asset. If the policy is structured in such a way that you can request that it be cancelled and paid out at any time (obviously at a smaller value than should it pay out at death), then that would be an asset, but for the value that it would have paid out when you entered into the marriage and not for the future value that accrue upon death.

Customer: replied 1 year ago.
Are you familiar with Pension Funds? what portion can i take out TAX Free? Also if i do that can she apply to have any portion attached due to her?? Can i hide the money under the "Mattress" ???? ha ha
Expert:  WCLawyer replied 1 year ago.

I am unfortunately not sure about those issues. That is more within the realm of a Certified Financial Planner. She can bring the same applications that I have mentioned to you, but note that it is not going to 'freeze' the situation pertaining to your estate only, but also her estate. Cash is still an asset which needs to be included in the calculation, so withdrawing the cash and hiding it is not going to help you, unless you contemplate lying to whomever is tasked with calculating the accrual. I can obviously not advise you to do that.

Customer: replied 1 year ago.
from what you are saying whatever assets she has disposed that was included in the asset . that cash value should be declared?
Expert:  WCLawyer replied 1 year ago.

Yes, if she still has the cash and she did not spend it on, for instance, an overseas trip or something.

Customer: replied 1 year ago.
what will be cheaper, to file an application to the High Court or to defend it??
Expert:  WCLawyer replied 1 year ago.

If she bought a car with that money, then the car would be an asset which is to be included.

You can defend the matter and then bring an application under that same case number ***** section 8 as previously mentioned.

Customer: replied 1 year ago.
i could also go on a world tour and " spend" the money?? do i have to show where i spent the money? keep receipts?
Expert:  WCLawyer replied 1 year ago.

Yes you can. Keeping receipts would obviously assist in showing that the money has been spent, but it is not obligatory.

Customer: replied 1 year ago.
Based on what i have told you , if you were in my position , for argument sake what would you do?
Expert:  WCLawyer replied 1 year ago.

I would bring the application under section 8. Wasting your assets just so that she cannot lay claim to it, in my opinion, may be a case of cutting your nose to spite your face.

Customer: replied 1 year ago.
i hear you but even if i bring an application under section 8 , what would i gain if she has got rid of her assets already? She filled for a divorce 16 months ago and although i did not contest it she is using delaying tactics to obviously get what she wants.
I was not aware until recently that she was in fact reducing her assets!!
Customer: replied 1 year ago.
Waiting for your answer re above? Is there perhaps another way forward?
Expert:  WCLawyer replied 1 year ago.

You can, in the application, request that the accrual is to be calculated at a certain date, prior to when the order is granted, citing her malicious reduction of her assets as reason for that. The only other way forward is putting some or all of your assets in trust, but that comes with its own pitfalls. You need to discuss the possibility of a trust with someone who can look at your situation properly and can advise you accordingly.

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