Want to blindside your ex during a divorce like Hakimi? Here's what the law says

Those hoping to hide their assets from their spouses to avoid sharing them during divorce will not get away with it under South African law.

European footballer and player for French soccer team PSG, Achraf Hakimi, has received some nods on social media for allegedly blindsiding his wife by transferring his wealth into his mother’s name, leaving his wife to walk out the marriage empty-handed.

But this is not possible in South Africa and many countries around the world especially when one is married in community of property.

South African family law has three marital regimes — in community of property, out of community of property and out of community of property with the accrual system.

This means that should a couple be married out of community of property, any spouse can do as they please with their assets, said divorce attorney Jessica Pyper.

“When you are married in community of property you can’t do what you want to do — you need consent from your spouse.”

Should a person dispose of those assets without their spouse’s consent, the disadvantaged spouse can approach a court to decide on how the remaining assets should be distributed.

“The wife, for example, cannot ask the court for an interdict to return those assets because they're already gone. What can be done, in terms of the Divorce Act and the Matrimonial Property Act, is getting the court to decide on how the estate will now be split. He [the spouse] may forfeit his right to [his wife’s] 50% share,” she said.

Those married out of community of property with accrual operate like those married in community of property. This is because assets and the estate accumulated throughout the marriage are calculated and shared accordingly during the divorce.

But in a case where a person transferred their assets to their mother before the couple met or married in community of property, those assets do not form part of the joint estate.

Instead, the outcome for those assets relies on the specifics of the transfer and the assets involved, said divorce attorney Simon Dippenaar of Simon Dippenaar and Associates.

“As a result, the wife usually cannot claim those assets during the marriage or in a divorce, as they aren’t part of the joint estate. The asset transfer’s specific circumstances and the assets’ nature can affect their treatment during marriage and in a divorce,” he said.

But intending to deceive a spouse or a creditor by transferring assets is deemed fraudulent and is nullified by the courts.

“It is important to understand any attempts to conceal or undervalue assets or defraud a spouse may result in legal consequences and court intervention,” Dippenaar said.

The only way to avoid sharing the wealth when divorcing is by changing the marital regime during the marriage, Pyper said.

“You have to prove to the court and to the creditors that this new marital regime will work for both of you. Creditors need to be accounted for because they need to know who to go for to collect debt. If your creditor opposes the application, that lengthens the process.”

Should the footballer’s divorce saga be true, his wife Hiba’s claim to his estate might be limited or non-existent if Hakimi registered them in his mother’s name, said Dippenaar.

“The couple’s marital regime is crucial in determining Hiba’s claim and the legal situation could differ under French or Moroccan law, as their nationality and assets’ location might affect the applicable laws and regulations,” he said.

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