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A high-net-worth divorce in South Africa may require more than a family-law attorney where the outcome depends on business valuation, forensic accounting, tax, retirement interests, property valuation or complex corporate structures.
The challenge is not to appoint as many experts as possible, but to identify which specialist is genuinely needed, what question that expert must answer and when that advice should be obtained.
The wrong expert, the wrong mandate or the wrong timing can increase costs without resolving the issue. Equally, failing to obtain specialist evidence where it is genuinely required can leave the parties negotiating or litigating on an incomplete or unreliable financial picture.
The family-law attorney remains responsible for legal strategy, procedure and the settlement process. The expert’s role is different: to answer a defined technical question within the expert’s field.
The most effective expert team is therefore usually a focused, proportionate team whose work is coordinated around the legal issues that actually need to be resolved.
| Question | General position |
Does every high-net-worth divorce need several experts? | No. Experts should be appointed only where a genuine technical question requires specialist input. |
Who decides the legal strategy? | The family-law attorney. Experts provide defined technical evidence or advice within their respective fields. |
When is a forensic accountant useful? | Where financial records, transactions, disclosure or asset flows genuinely require investigation, reconstruction or reconciliation. |
When is a business valuer required? | Where a private-company interest is material and its value cannot reliably be agreed from existing evidence. |
Does every retirement interest require an actuary? | No. Many ordinary fund interests can be dealt with using fund information. Complex arrangements may justify actuarial input. |
When should tax advice be obtained? | Before settlement terms are fixed where the proposed transaction may create material tax consequences. |
A family-law attorney is trained in matrimonial property law, evidence, procedure and settlement strategy. That does not make the attorney a business valuer, forensic accountant, actuary, tax adviser or property valuer.
Where a genuine technical question arises, the better approach is to define the question, appoint the appropriate specialist, brief that specialist properly and integrate the result into the legal strategy.
The same principle works in reverse. A technical expert should not decide the legal issue. The expert provides specialist evidence or analysis. The attorney applies that work within the correct legal framework.
A forensic accountant may be useful where ordinary financial statements do not explain a party’s true financial position, where the underlying transactions are disputed or where disclosure needs to be tested against the source records.
Typical instructions may include reconciling shareholder loan accounts, tracing funds moved between related entities, testing whether assets or liabilities have been omitted or mischaracterised, reconstructing disputed transactions and preparing a reliable asset-and-liability schedule for negotiation or trial.
The expert should be given a focused question. Asking a forensic accountant to “look at everything” can create disproportionate cost without necessarily producing better evidence.
See Hidden Assets in Divorce in South Africa for a fuller treatment of forensic investigation.
In B v B (45681/13) [2014] ZAGPJHC 321, the Gauteng Local Division reviewed an arbitration award arising from alleged fraudulent non-disclosure in an accrual dispute. The underlying dispute included a materially increased shareholder loan account that had not been properly disclosed.
The judgment is useful as an illustration of the significance of proper financial disclosure, but it should be understood as a High Court review of a private arbitration award.
J.E.R (Nee O) v B.E.S – Appeal (A16/2023; 15871/16) [2023] ZAWCHC 291 concerned spousal maintenance and the respondent’s means, not an accrual calculation. In assessing the financial evidence, however, the Western Cape High Court considered loan-account cessions, undervaluations and restructurings across related entities.
Neither case suggests that every loan-account movement is suspicious. The narrower point is that, once the financial picture is genuinely disputed, the underlying records may matter more than a headline figure in annual financial statements.
A business valuer may be required where the value of a private-company interest is material to the divorce and cannot sensibly be agreed from reliable market evidence or existing documentation.
A useful valuation should identify what is being valued, the valuation date, whether the result represents enterprise value or equity value, the methodology and key assumptions, and the treatment of debt, excess cash, shareholder loans, minority interests and transfer restrictions.
Two competent valuers may reach different conclusions because the result can depend on maintainable earnings, future cash flows, discount rates, marketability and the treatment of shareholder debt. A headline valuation without the assumptions underneath it is difficult to test.
Not every property in a divorce requires a formal valuation. An ordinary residential property may sometimes be dealt with using reliable market evidence or an agreed appraisal.
Formal valuation becomes more useful where the property is substantial, unusual or central to the settlement.
Examples include commercial property, farms, development land, investment property portfolios and high-value residential property where the parties materially disagree about value.
The valuer may also need to consider leases, development rights, occupation, debt, encumbrances and whether the relevant premise is an orderly market sale rather than an urgent or forced disposal.
Not every retirement interest requires an actuary.
The treatment of pension interests following divorce is governed by section 7 of the Divorce Act 70 of 1979 read with the applicable retirement-fund legislation.
The Pension Funds Act 24 of 1956 was materially amended with effect from 1 September 2024, including amendments to the definition and treatment of pension interests and deductions following divorce.
The particular fund and current statutory framework should therefore be checked before a divorce order dealing with a retirement interest is formulated.
Actuarial input becomes more useful where the retirement arrangement is technically complex. Examples may include defined-benefit arrangements, several retirement products, disputed assumptions, unusual benefits or a need to compare the economic effect of different settlement options.
The first question should therefore be whether a technical actuarial calculation is genuinely required, rather than assuming an actuary must be appointed whenever a retirement fund appears in the estate.
Divorce settlements can have material tax consequences, but the result depends on the asset, the parties and the structure of the transaction.
The analysis can become more complex where a settlement involves companies, trusts, shareholder loans, asset disposals, restructurings, offshore interests or transactions that extend beyond a straightforward transfer between spouses.
Where a material tax issue genuinely arises, tax advice should be obtained before the settlement is finalised. Correcting an avoidable tax problem after signature can be much harder than designing the transaction properly from the outset.
A business-related settlement may raise company-law or commercial issues outside ordinary family-law analysis.
These can include shareholder agreements restricting transfers of shares or loan claims, financing agreements limiting distributions or changes in control, pre-emption rights, lender consent requirements, restraint provisions and implementation documents needed to transfer shares, claims or control.
Corporate or commercial input is particularly important where the proposed settlement cannot be implemented merely by agreement between the spouses because the company, other shareholders or lenders also have enforceable rights.
Executives may hold restricted shares, options, deferred awards or performance-linked incentives that are not equivalent to freely transferable shares.
Relevant questions may include whether the award has vested, whether it is forfeited on termination of employment, what conditions remain outstanding, when it can be exercised or sold and how tax will apply when value is ultimately realised.
The analysis may therefore require information from the employer or scheme administrator and, depending on the issue, input from a valuer, tax adviser or employment or corporate lawyer.
Expert roles often intersect. A forensic accountant’s reconstruction of a shareholder loan may change assumptions used by the business valuer. A revised business value may affect tax analysis. A retirement calculation may need to be incorporated into the broader accrual or settlement model.
Where several specialists are involved, their work should ultimately be reconciled into one internally consistent financial picture. The family-law attorney should ordinarily coordinate that process while avoiding duplication of the experts’ technical functions.
Not every complex divorce needs every expert, and experts do not always need to be appointed at the same time.
A proportionate sequence may be to identify the genuinely disputed financial questions first; appoint a forensic accountant early where disclosure or transaction history is contested; appoint the business or property valuer once the underlying records are sufficiently reliable; obtain actuarial or tax input when the technical issue is defined and the advice can still influence settlement; and involve corporate counsel before a proposed share transfer, restructuring or change of control is documented.
The sequence will vary from matter to matter. Proportionality remains important: the cost of the expert work should bear a sensible relationship to the value in dispute and the complexity of the issue being answered.
Before instructing any specialist, the legal team should identify the exact question the expert must answer, whether the issue is genuinely disputed, what records the expert will need, whether those records are available, whether a jointly instructed expert could resolve the issue more efficiently, how the opinion will be used and whether the proposed scope overlaps with another expert’s work.
A tightly defined instruction usually produces a more useful report than an open-ended mandate.
A complex settlement is only as reliable as the financial picture on which it is built.
Sound legal strategy cannot correct a business valuation that double counts debt, a shareholder loan that has not been reconciled, a retirement interest that has been misunderstood or a settlement structure with avoidable tax consequences.
The purpose of the expert team is therefore not to make the divorce more complicated. It is to answer the technical questions that must be resolved before the legal decisions can be made properly.
In a high-net-worth divorce involving businesses, substantial property, complex retirement arrangements, share incentives or other technical financial issues, early identification of the right specialists can improve both the quality of the evidence and the settlement process.
At Martin Vermaak Attorneys, the legal strategy should identify the issue first and the expert second. Where specialist input is justified, the mandate should be defined around the legal question, the work of different experts should be coordinated, and unnecessary duplication should be avoided.
The objective is a reliable financial picture that can support negotiation, settlement or litigation without adding expertise simply for the sake of complexity.
No. A forensic accountant is most useful where material financial records, transactions or disclosure genuinely require investigation, reconstruction or reconciliation.
When a private-company interest is material and its value cannot reliably be agreed from existing evidence. Ideally, the relevant financial records should be sufficiently complete before the valuation begins.
The attorney can identify the legal issue and test the evidence, but a genuine specialist valuation question should ordinarily be answered by an appropriately qualified valuer.
No. Many ordinary retirement interests can be dealt with using information supplied by the relevant fund or administrator. Actuarial input is more appropriate where the arrangement or calculation is genuinely complex.
Before settlement terms are fixed where the proposed transaction may create material tax consequences. Tax advice obtained only after signature may be too late to restructure the agreement efficiently.
Because a proposed transfer of shares, shareholder loans or control may be affected by shareholder agreements, lender rights, pre-emption provisions or other company-law requirements that cannot be resolved by the spouses alone.
The family-law attorney should ordinarily coordinate the process so that each expert answers a defined technical question and the resulting evidence can be integrated into one coherent legal and financial strategy.
The expert team in a South African high-net-worth divorce should be built around the technical questions that genuinely need answers, not around a standard list of professionals. A focused forensic accountant, valuer, actuary, tax adviser or corporate specialist can materially improve the quality of the evidence when the issue falls within that expert’s field.
The family-law attorney remains responsible for identifying the legal issues, defining the mandate and integrating specialist work into the broader divorce strategy. Used proportionately and at the right time, the right experts can help ensure that a complex settlement is based on reliable information and can be implemented in practice.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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