Durban - A scorned wife was entitled to investigate the bank accounts of her husband’s new lover if she believed he was hiding money from her there.
That was the upshot of a recent judgment by Pietermaritzburg High Court Judge Piet Koen in a matter involving the granting of a subpoena which entitled a suspicious wife to pry into the bank account of the “new woman” in her husband’s life.
The names of the parties cannot be used because it relates to a pending divorce between the couple who have been married for 48 years.
The wife obtained the subpoena (to produce evidence) against a South African bank where the woman, who now apparently lives in Australia, has an account.
In turn, the woman brought an application to have the subpoena set aside, saying it “sought to procure evidence which is irrelevant to any issue in the divorce proceedings and is an abuse of the court process.
“I am not a party to the litigation and I submit the documents are personal and confidential ... it is a fishing expedition. She is trying to put undue personal pressure on me (and her estranged husband), to secure an advantageous (divorce) settlement,” she said.
In his judgment, Judge Koen said a similar subpoena had been issued and served on another financial institution and records were produced to show that the woman’s account had an opening balance of more than R5.5 million in January last year which increased by R16 million to more than R21 million in one year.
The wife, he said, was “highly suspicious that the sudden increase may include funds belonging to her husband, to which she may have a valid claim and which are being placed beyond her reach and possibly the jurisdiction of the (divorce) court."
The judge said a subpoena was a powerful tool in the hands of a litigant “in pursuit of the truth” and the grounds for interfering with that right were restrictive.
The wife in her divorce action was claiming maintenance of R30 000 a month and a redistribution order involving assets to the value of between R8 million and R13 million.
“Their marriage is one of some 48 years' standing and she has prospects of success. The quantum is based on a schedule of assets made available by the husband, which is in dispute. In these circumstances the precise value, composition and extent of his estate is relevant ... and her lawyers are in the process of issuing subpoenas to procure the husband’s bank records.”
He said the wife also pointed to the fact that it was only in this application that the woman had admitted to being in a relationship with her husband and, while she claimed it had only begun after the breakdown of their marriage, “it is clear from email communications that it was ongoing before then”.
While the woman stated that she had never received any money from him, there was objective evidence that he had paid money to a clinic where she had treatment, and to move her household goods to Australia.
In response to a challenge by the wife regarding the R16 million, the woman disclosed an inheritance and income from the sale of her professional practice and a car.
However, the judge said, there was still R6 million unaccounted for.
“Given the background and possibility that an investigation of the records may reveal financial dealings based on their long-standing romantic relationship, it is not beyond the bounds of reasonable possibility that they could be relevant and assist in uncovering the truth.
“I am not convinced that the subpoena is an abuse of the process of court. Experience teaches that it is not uncommon that funds are sometimes hidden in accounts of romantic partners of litigants to a court action.
“That might not have happened in this matter, but it is something the wife is entitled to investigate,” the judge said.
The Mercury