Fraud: 'Til the courts do us part

Divorce proceedings aren't pleasant anyway, but when one of the parties is guilty of sharp practice, it's even worse. Look to their motives for proof, advises Stuart Burns

Some time ago I had a revealing conversation with a divorce lawyer who explained why wives so frequently insist on going to court. 'It isn't that they expect to get a better deal,' she said. 'It's because they want a chance to stand up in public and tell the world what swines their husbands are.'

Anyone who has gone through a divorce will know that it is a uniquely harrowing experience, compared with which an Inland Revenue tax investigation is a real pleasure. Attempting to divide assets between two competing parties is never easy. Trying to do so in an emotionally fraught climate is next to impossible.

The hyper charged nature of the affair is perhaps one reason why husbands (and it usually is husbands), who would never dream of sharp practice in business, don't hesitate to get up to every trick in a divorce hearing. Interestingly, although some of these ruses amount to fraud, it is highly unusual for charges to follow, even when the deception is laid bare before the court. Perhaps judges tend to feel that everyone has already suffered enough.


I saw a good example of this - not of fraud but of sharp practice - when I was part of the wife's team in a recent case. Her husband was a high profile individual, the founder and major shareholder of a successful company with a board of 12. He was, as well, a dominant personality in the industry, and his energies and skills had allowed him to build the business from a standing start to a position of market leadership.

No one disputed the fact that the company was worth a large sum, on paper at least. But the Family Division of the High Court is less interested in assets' theoretical value than in the amount that can actually be extracted - the liquidity,in other words. Needless to say, the husband-was advised by experienced professionals who urged him to take steps to preserve his assets by, in effect, reducing their liquidity.

In the US there is less room for manoeuvre in these matters: assets are usually divided equally between husband and wife, unless there are exceptional mitigating circumstances. In the UK, this is still a matter of evolving case law. One or two recent cases have indicated that a wife is entitled to substantially more by way of income and property settlement than that simply based on the Duxbury model. A Duxbury calculation arrives at a capital sum which, over a wife's lifetime, will reduce to zero while providing her with an income suitable for her needs, taking into account the lifestyle she has become accustomed to.

But I digress. To return to my story, the husband, shortly before we went to court, had restructured his company by putting a share-for-share exchange in place. This involved creating a new holding company above the existing group. Shares or share options were allocated to other directors who previously had none. His own shares were reclassified so that they did not carry the same rights as his former holding.

Of course there were tax implications to this. At the time, retirement relief was in place, and a goodly proportion of the deemed disposal would have been sheltered. But putting that aside, we were dealing with a dilution of his shareholding, suggesting to the outside world that he had a greatly reduced interest in the business. Moreover, as he had given the shares to his fellow directors at no cost, he had, seemingly, disposed of them without realising cash sums that would have left his assets open to attack.

How could we respond? Our approach was to argue that this was a non-commercial manoeuvre carried out purely to disadvantage his wife. As the shares were given away, not sold, we seemed to be on fairly solid ground. However, his team countered by declaring that his actions were unrelated to the divorce, and were aimed at providing the junior directors with incentives. He had no need for additional money, his lawyers insisted, and was far more interested in seeing the company flourish in the future than in adding to his personal wealth.

Thoughts and deeds

The debate seemed finely balanced. But one key fact tipped the scales in our favour. A close examination of the company minutes revealed that the restructuring took place only after the divorce proceedings began. There was nothing in the record to indicate that the change had even been contemplated before that date.

As a result, the court ruled that his wealth should be assessed on the previous basis. Of course, the new structure was a fait accompli. But he was still drawing a very substantial remuneration, although the cash was paid in salary, rather than salary and dividends. Accordingly, his liquidity remained similar, and the court reached its decision on that basis.

The moral of the story - and it applies to proceedings generally as well as divorce hearings - is that a forensic accounting investigation should examine the reasons behind transactions rather than simply the transactions themselves. Very often, an apparently straightforward process will have underlying motives that cast a very different light on it.

Stuart Burns heads Fisher Forensic, a specialist forensic practice within H W Fisher & Company

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