On separation not everyone has the difficult task of secretly disposing of half a French chateau and vineyard, as alleged by Brad Pitt against Angelina Jolie, however, disposing of assets to defeat an ex-spouse’s financial claim is an all-too-common concern.
It is in some ways the oldest trick in the book. If you are worried about having to give your soon-to-be ex-spouse half of your assets, reduce how many assets you have to give.
This can be a simple act of spite or, in many cases, a disposal of the assets with a plan afoot for the ‘gifts’ to be returned to the giver after the ink is dry on the court order.
Simply giving away assets is of no benefit. The nefarious art is to transfer or dispose of the asset in such a way as to be able to have it returned once the divorce proceedings have been concluded.
Be it a vineyard, a house, a shareholding, a work of art or good old-fashioned cash, anything with a value may well be removed from the matrimonial pot if a cautious eye is not trained on the family assets.
While many spouses will have this concern, those with the greatest worry are spouses who have reconciled following the commencement of previous divorce proceedings, only to find that they have been the victim of a cold and calculated plan for a delayed divorce with the benefit of financial planning, usually by the financially stronger party.
In an area of the law in which emotions already run high, little can compare to the family implosion that occurs in cases where the left behind spouse realises that their husband or wife was slyly planning their exit for years.
This is particularly true in cases where the ‘leaving’ spouse has feigned happy families to increase the chances of their misconduct slipping under the radar.
Powers of the court
However, given that human nature is little altered over time and such behaviour has been going on for years, there are laws in place to protect against such deviousness.
The court will do all it can to preserve the matrimonial pot and to censure those who try to deprive a spouse of their rightful entitlement to a share of the matrimonial assets. Freezing injunctions can prevent an asset from being disposed of or dealt with in a prescribed manner that might reduce its value.
If an asset has already been transferred within three years preceding a divorce petition and the transfer defeats the other spouse’s financial claims, it is presumed to have been transferred for that purpose and the transfer may be set aside.
This presumption can be rebutted, but it is very helpful that the starting point is that skulduggery has occurred. The onus is then on the disposer to satisfy the court that they effected the transaction without the intention of defeating or reducing the financial claim of their soon-to-be ex-spouse.