High-Asset Divorce in South Africa: Key Mistakes to Avoid and Best Practices
Divorce is never easy, but when significant assets are involved, the stakes are even higher. High-asset divorces require careful planning, skilled legal advice, and a strategic approach. Whether you are dividing business interests, protecting generational wealth, or navigating a complex estate, it is crucial to understand the key principles that apply in South Africa.
At Vermeulen Attorneys, we regularly advise clients involved in high-net-worth divorce cases. Below, we set out the key dos and don’ts of high-asset divorce, tailored to the South African legal landscape, supported by relevant case law.
The Dos in High-Asset Divorce
- Hire an Experienced Divorce Attorney
A seasoned family law attorney who understands complex asset division, including trusts, companies, and international holdings, is essential. Vermeulen Attorneys has specific expertise in high-asset and cross-border divorce matters.
- Fully Disclose All Assets
Full financial disclosure is not merely best practice—it is a legal obligation in South African divorce proceedings. The courts expect each party to place their complete financial position before the court to enable a just and equitable division of assets. This includes disclosure of income, liabilities, bank accounts, properties, trusts, loan accounts, shares in companies, and any other investments. Failure to disclose material financial information can result in serious consequences for the non-disclosing party, including adverse cost orders, punitive financial awards, and damage to credibility that may affect the overall outcome of the case.
In high net worth divorce matters, there is very little room to successfully conceal wealth or obscure financial interests—especially if the other spouse is determined to uncover the truth. South African courts have established mechanisms to compel disclosure. These include Rule 35 discovery procedures, subpoenas duces tecum, and in some divisions of the High Court, practice directives that mandate the filing of detailed financial disclosure affidavits early in the litigation. These tools can be used effectively by a diligent legal team to trace hidden assets, analyse financial conduct, and expose attempts to obscure the true extent of a party’s estate. If your spouse is willing to dig, it becomes increasingly difficult to keep anything hidden.
This was illustrated clearly in S.K v M.N (D3532/24) [2024] ZAKZDHC 54, where the husband attempted to understate his income and lifestyle while claiming financial hardship. The court found his version “disingenuous” and awarded the wife interim maintenance aligned with the couple’s actual standard of living, relying heavily on evidence of luxury spending and travel. The judgment reinforces the principle that the truth will surface, and it is far less damaging to disclose comprehensively and transparently at the outset than to be caught out and face judicial sanction later.
- Assess and Document Business Interests
Businesses and shares are not excluded from division in divorce proceedings. In marriages in community of property, all business interests—including loan accounts and shareholding in private companies—form part of the joint estate and must be accounted for and valued accordingly. Regardless of which spouse is the registered shareholder or director, the value of these interests belongs to both parties equally and is subject to equal division upon divorce.
In marriages out of community of property with accrual, business interests still play a significant role. Here, loan accounts and shares in companies are considered part of the accrual estate of the spouse who owns them. This means the growth in value of these interests from the date of marriage to the date of divorce must be disclosed, quantified, and included in the accrual calculation. Failure to properly account for such interests may result in an unfair distribution and legal challenge. A professional business valuation is often necessary to determine the correct inclusion in the accrual claim.
Litigation in divorce matters, particularly high-asset cases, is often both costly and emotionally exhausting. Court proceedings can stretch over months or even years, depleting financial resources and intensifying conflict between parties. In contrast, alternative dispute resolution (ADR) methods such as mediation and collaborative divorce offer a more efficient, private, and solution-focused path to settlement. These processes allow parties to retain greater control over the outcome and can significantly reduce the emotional toll associated with adversarial litigation.
South African courts increasingly promote the use of mediation, especially since the introduction of Rule 41A of the Uniform Rules of Court, which requires parties to consider mediation at the outset of any civil litigation, including divorce proceedings. In M.Y v J.Y (2024/013982) [2024] ZAGPJHC 431, the court reaffirmed the value of mediation in resolving family disputes and cautioned that an unreasonable refusal to mediate could have consequences, including on the issue of costs. While mediation remains voluntary, a party’s unwillingness to engage in good faith may be viewed unfavourably by the court, especially where litigation could have been avoided.
In high-net-worth divorces, where complex financial structures and emotional tensions often prevail, mediation can facilitate focused negotiation on key issues such as asset division, spousal maintenance, and business interests. It also provides a platform for parties to craft tailored solutions that are more likely to be durable and mutually acceptable. Engaging in ADR with the guidance of experienced legal representatives ensures that the parties’ rights are protected while avoiding the rigidity, delays, and public exposure associated with court proceedings.
- Review Your Estate Plan Post-Divorce
Divorce has an immediate and profound impact on your estate planning, and failure to revise your arrangements can lead to unintended and often legally complex consequences. Many individuals forget to update their wills, trust structures, life insurance beneficiaries, and testamentary provisions following the dissolution of a marriage. This oversight can result in an ex-spouse inheriting from an outdated will or being left with powers or benefits that no longer reflect the current relationship or intentions of the deceased.
This issue came into sharp focus in N.N.H v L.L.H (1670/2022) [2023] ZAECMHC 38, where the court had to interpret a joint will executed by spouses before their divorce. The couple had dissolved their joint estate upon divorce, yet the will had not been revoked or amended. When the deceased later passed away, a dispute arose as to whether the ex-spouse could still claim under the terms of the joint will. The court ruled that the will was rendered invalid by the divorce and the division of the joint estate, making it clear that post-divorce estate planning is not optional—it is essential.
To avoid similar complications, it is advisable to conduct a comprehensive review of all estate planning documents immediately after divorce. This includes drafting a new will, updating the beneficiaries on retirement annuities and insurance policies, reassessing your trust deed (if applicable), and ensuring that your estate will devolve according to your revised wishes. Doing so not only protects your current family and financial interests but also reduces the likelihood of legal disputes after your death.
The Don’ts in High-Asset Divorce
- Do Not Hide Assets
Attempting to conceal assets or misrepresent your financial position is not only unethical but also highly detrimental to your case. In S.K v M.N, the husband’s failure to make full disclosure led the court to find his evidence disingenuous, ultimately awarding the wife a favourable interim maintenance order. South African courts are empowered to make inferences where full disclosure is lacking, and non-disclosure can result in adverse cost orders, punitive financial awards, and reputational harm. Transparency ensures that your legal team can negotiate effectively on your behalf and that the court is not misled. In the context of a high-asset divorce, where multiple financial structures may exist, honesty is essential to avoid legal and financial consequences down the line.
- Do Not Make Emotionally Driven Decisions
Divorce is inherently emotional, particularly when the breakdown of the relationship involves betrayal, resentment, or disappointment. However, decisions based on emotion rather than reason often lead to outcomes that are financially or legally detrimental. For example, insisting on retaining a property you cannot afford out of spite or agreeing to an imbalanced settlement simply to expedite the process can have lasting effects. It is vital to approach the divorce process with a strategic mindset and to rely on objective, informed advice from professionals. Keeping emotions in check allows you to focus on protecting your long-term interests rather than pursuing short-term vindication.
- Do Not Rush the Process
While it may be tempting to get the divorce over with quickly, especially during periods of emotional strain, rushing through a high-net-worth divorce is rarely beneficial. These matters involve complex financial assessments, including valuations of businesses, trusts, pension interests, and offshore holdings. Failing to allow enough time for proper investigation and due diligence may result in critical assets being undervalued, overlooked, or excluded from the settlement. A hasty approach often leaves one party significantly disadvantaged. A measured, well-informed process, although time-consuming, is far more likely to result in a fair and enduring agreement.
Antenuptial contracts and postnuptial amendments are powerful legal instruments that directly affect the division of assets and spousal maintenance upon divorce. Overlooking or misunderstanding these agreements can lead to unintended consequences. These documents often contain bespoke financial arrangements that deviate from the default matrimonial property regimes, and their provisions may either protect or disadvantage a party depending on how they were drafted. It is essential to provide your legal team with a copy at the outset and to understand the enforceability and scope of any such agreements. Courts will give effect to valid contractual provisions unless they are unjust or contrary to public policy.
- Do Not Ignore Legal and Financial Advice
Relying on the opinions of friends, family, or online commentary in place of professional advice can have serious repercussions. High-asset divorces involve multifaceted legal and financial considerations that require tailored guidance. Qualified attorneys, accountants, tax consultants, and financial planners can help you understand your rights and obligations, structure settlements efficiently, and avoid legal pitfalls. Disregarding their advice or attempting to navigate the process alone may lead to errors in tax planning, undervalued assets, or unenforceable agreements. It is an investment in your future to surround yourself with professionals who understand the complexities of your circumstances.
- Do Not Neglect to Update Wills and Trusts
Divorce does not automatically revoke your existing estate planning documents. As highlighted in N.N.H v L.L.H, outdated wills or trust provisions can create confusion, disputes, and unintended inheritances. If your former spouse is still named as a beneficiary or trustee, or if you have a joint will that was never revoked, your estate may be distributed in a manner contrary to your wishes. A comprehensive review of your estate planning structures—including wills, trusts, living wills, and beneficiary nominations on policies—is essential immediately after divorce. This step not only protects your legacy but also avoids protracted litigation among your heirs.
- Do Not Take Your Divorce to Social Media
Sharing details of your divorce on social media or in public forums may feel cathartic in the short term, but it can be extremely damaging to your case. Public statements can be used as evidence in litigation, especially where reputational harm, defamation, or parenting disputes are involved. In high-asset divorces, public exposure can also invite scrutiny from business partners, clients, and competitors. Courts may view such behaviour as antagonistic or uncooperative, which could affect the court’s perception of your credibility and conduct. It is best to maintain discretion, direct all communication through your legal team, and avoid any posts or commentary that could be misinterpreted or weaponised.
- Do Not Adopt a Winner/Loser Mentality
Approaching a high-asset divorce with a combative mindset often leads to protracted litigation, increased legal costs, and emotional exhaustion for all involved. A divorce is not a contest to be won or lost—it is a legal process aimed at reaching a fair and sustainable outcome based on the circumstances of both parties. Insisting on punitive outcomes or seeking to “defeat” your spouse may backfire, particularly if the court views your conduct as unreasonable or vindictive. Instead, focus on achieving a balanced settlement that protects your long-term financial stability and preserves your dignity throughout the process. Constructive engagement, rather than entrenched hostility, is more likely to yield a result that allows both parties to move forward independently and respectfully.
Need Strategic Legal Advice on a High-Asset Divorce?
Vermeulen Attorneys offers discreet, experienced, and practical legal solutions for individuals facing complex or high-value divorce proceedings. We understand the stakes and have a proven track record in navigating high-net-worth family law matters.
Contact us today to schedule a consultation with one of our family law attorneys.
