Written By Lim Chong Boon
In the second stage of divorce proceedings – the ancillary stage – the court has to decide how the parties’ matrimonial assets are to be divided between them.
However, before the court makes a “just and equitable division” of the matrimonial assets, each party has to make voluntary disclosures of the assets they own in their respective affidavits. This requires both parties to be completely honest about the extent of their finances and property so that the court has a full picture of the parties’ means and assets and is then be able to make the correct ruling.
Nevertheless, there will be cases where one spouse attempts to conceal matrimonial assets from his/her partner. Here’s what you can do if you suspect that your spouse has been less than honest in declaring his/her assets.
What Could Constitute Non-Disclosure of Matrimonial Assets?
At the ancillary stage hearing, both parties are required to make full and frank disclosures of all known assets (and income, expenses and debt) they possess in their respective affidavits. These assets should include everything of value. Some examples are:
- Mutual funds
- Cash value in insurance policies
- Shares or bonds
However, some parties may attempt to deliberately exclude their assets from the pool of assets without legitimate reasons. For example:
- Hiding the assets, usually in a foreign jurisdiction
- Withdrawal of monies
- Transfer of assets to close friends or relatives
- Understating, or undervaluing certain assets
- Overstating debts
- Reporting lower than actual income
- Reporting higher than actual expenses
Process of Finding Hidden Assets
To obtain evidence that your spouse is hiding or has disposed of his/her assets, you can rely on formal court procedures such as discovery to request for a full disclosure of your spouse’s assets.
In making a request for discovery, you will have to describe the documents required and the reason(s) for the request.
In most instances, your spouse’s income tax returns would be the first place to look for possible clues on the existence of hidden assets, based on his/her disclosure of income-earning assets and asset sales in the income tax returns form.
Other documents that might provide invaluable clues on the existence of undisclosed assets would be:
- Credit card receipts
- Insurance statements (to determine the cash value of insurance policies)
- Bank statements (to analyse cash and cheques deposits, whether any unexplained large ATM withdrawals were made, loan applications and personal net worth statements at banks
- Property deeds and records (through Land Titles Registry searches)
If your spouse’s assets are already hidden, proving their existence and location could become difficult or costly. The level of difficulty would depend on the complexity of tracing transfer of ownership of the assets to the names of other individuals or entities.
You can also request your spouse to provide further information, on assets which you suspect him/her to have hidden, by filing interrogatories with the court.
By posing concise questions to the spouse with reasons for posing each interrogatory, you can compel your spouse to disclose his/her sources of income, existence of passive income and reasons for making substantial withdrawals from any bank accounts.
Keep a Lookout for Scam Transactions
Some people may hide money from their spouse by handing cash or transferring ownership of valuable assets to friends, siblings, or parents to hold. For example, through repayments of phony debts to friends, or gifts of expensive jewellery to relatives.
Spouses who own businesses may also use the corporate entity to conceal assets. Thus, assets may be transferred into the name of another family member, friend or a corporate entity until after the divorce has been finalised.
In such cases, the spouse would find it difficult to only rely on formal discovery procedures and may need to enlist the services of a private investigator to unearth more information. The process of finding these hidden assets, either placed in the hands of third-parties or behind false documents, would also need to be weighed carefully against the potential benefits, especially if the search will be a costly one.
Sometimes the hidden assets could be dissipated or mismanaged before they can be included in the pool of matrimonial assets.
Marital asset dissipation occurs when one spouse has spent, given away or otherwise mismanaged the property that should have been subject to equitable distribution. This commonly takes the form of spending marital funds for the benefit of paramours, by indulging in gambling or generally wasting marital property.
If you have grounds to believe that your spouse has been dissipating assets, you may apply for an injunction to freeze his assets. Do note that an injunction is not easily obtained and you need to have good evidence to support your assertion that your spouse is dissipating assets to exclude them from the pool of matrimonial assets. Mere suspicion is not enough.
If you successfully prove that your spouse had not made full and frank disclosure of all his/her matrimonial assets, the court will draw an adverse inference against your spouse. Typically, the court may order your spouse to receive a lower proportion of the known assets when it divides the matrimonial property.
In the 2011 High Court case of Ng Ah Yiew v Goh Chai Seng, the wife managed to produce 22 different financial statements belonging to her husband. These statements revealed numerous assets amounting to over $4 million which her husband had failed to disclose.
In the circumstances, the court concluded that the wife should be entitled to proportion of those hidden assets. The husband was also ordered to receive a lower proportion of the known assets.
Finding assets or proving unreported income is often one of the most difficult issues in a divorce.
If you and your spouse are divorcing but you suspect that your spouse is hiding assets from you, you are advised to engage a lawyer. Your lawyer will be in a better position to advise you on your position and the steps to take to better ensure a just and equitable division of the matrimonial assets in your marriage.
ABOUT THE AUTHOR
Mr Lim Chong Boon is Head of Family Law at PKWA LAW, one of Singapore’s largest family law firms. His team of family lawyers are consistently recognised as leading family lawyers.