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Concealment of Funds

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    Worried that the other party is concealing funds? There are many orders you can take out against him/her!

    The court in Tel-Aviv has recently demanded a husband to waive banking confidentiality and to provide the court with his statements from banks in Switzerland and the U.S., at his wife’s request. The court’s decision was given after it was proved that the husband is a wealthy man and that the standard of living which he and his wife had was much higher than his proposal to pay alimony.


    This divorce case used an economic order, one of many orders which are in the court’s authority to issue, aimed to help the person requesting to prevent possible damage caused to him/her by a unilateral action of the spouse, for example, exiting the country permanently, smuggling assets etc.


    In legal disputes within family law, economic orders have a huge impact on the final outcome of the case. There are known orders – a temporary confiscation order, stay of exit order, various injunctions etc. – but there are orders less familiar to the public that their use could be very effective.


    The court’s authority to order such orders in almost unlimited. For example, one can get an order for disclosure of financial information designated to the banks, tax authorities and to demand copies of balance-sheets and accounting documents, details regarding shareholding and details of transactions.


    The court can also appoint an expert authorized to investigate to prove the value of the property of one of the parties. Appointing an investigator to check all the husband’s assets could help the wife, if her husband is a man of property. Such an order may be given even if the couple is still married and before reaching the time of the actual balance of assets. The investigator would check in to her husband’s assets and will submit a report to the court.


    In cases where a husband has, for example, companies and businesses, an order can be given to appoint a temporary administrator to the company who will replace the husband at least until the end of the legal proceedings, in order to prevent the husband from depleting the company’s assets, reducing its value or increasing its debts, in order to detract from the rights of his wife in the company, at the time of the dissolution of marriage.

    Besides the “Regular” package of orders there are two very significant orders which are less known:

    An “Anton Piller” Order” and “Mareva Injunction”. An “Anton Piller” allows seizure of assets/documents and removal of them while the plaintiff or his representatives enter the defendant’s premises (residential, office, etc.), the idea behind the order is to prevent the other party from destroying evidence. However, the courts are in no hurry to issue an “Anton Piller” due to the sensitivity and adherence of the basic rights of the individual. “Mareva injunction” can also provide great help in the case – this injunction is directed personally to the defendant and prevents him/her from selling or giving his/her assets to others. The order can also be applied to assets located abroad.


    The temporary injunctions enable the prevention of the party served with it to flee the country or destroy documents and they are ordered by the Family Court or the Rabbinical Court. These orders are temporary but came become permanent, according to circumstances. That being said, the courts will respond harshly if the information given, in order to obtain the order, is false and the purpose of the order is to take revenge/harm the other party so caution should be used when requesting an order which might considerably harm the rights of the other party.


    This article is not intended as legal advice and should not be relied on it as such.

    What is a natural guardian?

    Natural guardians are the parents of the minor. So is stipulated in article 14 of the law of capacity. This means that the parents are responsible for the education of their children, their bringing up and ensuring their economic existence, this as well as bestowing their children with tools for the future. By the way, the children have the duty of behaving respectfully towards their parents. Article 16 of the law of capacity stipulates that the children have to obey their parents and, obviously, respect them. It is true that the parents are the natural guardians of the children but there are some actions that require the authorization of the court and the parents’ authorization is not enough, when it comes to minors.


    How do you appoint a guardian in practice?

    The appointment of a guardian is done by means of a request to appoint a guardian. Such a request may be submitted by relatives of the Custodian and a representative of the State. The authorized court to which an application for the appointment of a guardian should be submitted is the Family Court. The application for the appointment of a guardian should include a written application in which the main reasons for the application for the appointment of a guardian should be included. In addition, at the time of submission of the application, a fee of 550 NIS (as of now) should be paid. The application must also include an affidavit duly authenticated by an attorney. It is very helpful to use the advice of a family lawyer, when filling out the application for the appointment of a guardian. If, however, the request is submitted without the assistance of a family lawyer, the required affidavit in court can be verified at a cost of 50 NIS (as of now).


    In the framework of the application for the appointment of a guardian, the reasons for which the appointment is requested should be detailed at length. In addition, it is necessary to describe precisely the relationship between the applicant and the sheltered person. If the request is for the appointment of a guardian for medical reasons, it is recommended to attach a medical opinion or a psychiatric opinion to the application in order to substantiate the claim relating to the medical condition of the sheltered person. In the framework of an application for the appointment of a guardian which is submitted by a relative on behalf of the sheltered person, a letter of consent must also be attached to the application, which proves confirmation of the applicant of the appointment.


    The rule is that every request to appoint a guardian for the body and property is submitted to the Attorney General. The latter is responsible for the public interest and is actually the “counter-party” to the request. If there is no prevention or suspicion of improper motives, then there will be no objection on the part of the Attorney General to the appointment. An application for the appointment of a guardian submitted to the court is discussed as soon as possible and usually requires the position of the other party, that is, the position of the Attorney General. After that, the court can rule for the issuing of an order. However, the court has the power to summon witnesses in order to gain a more in-depth impression of the nature of the request and its validity. Incidentally, in accordance with article 35 of the capacity law, the court is required to appoint a guardian, the person who will supposedly assume the position in the best manner to the court’s impression. Usually the default is a relative who is appointed as a guardian.


    What circumstances does the court take in to consideration when appointing a guardian?

    There is no doubt that the appointment of a guardian for a certain person is liable to violate the most basic rights of that person, since in one moment his main legal rights are expropriated or delayed. In one moment he/she is no longer a “his own master”. The words of the scholar Iris Marcus, in her book “Legal Capacity and Guardianship”, in Chapter 33 (April 2016 – Otzar Ha-Mishpat), are very appropriate: “This violation cannot be lightly done, from our system’s recognition of human dignity and liberties. So, the situations in which the legal capacity of a person will be restricted is such that where the person’s judgment is impaired so that the society sees a need to protect itself from that person – from his/her actions and from his/her faults caused by defective judgment of reality – and from others who are might abuse his/her poor and faulty judgment. Hence, there is no wonder that a custodial appointment is done cautiously and only in cases that really justify it. Today, the tendency is to avoid appointing a guardian and using another factor called “decision-support”, as I will explain below.


    In order for the court to order the appointment of a guardian it must examine the conditions set out in section 33A of the law of capacity. Among other things, the court must check if Not appointing a guardian might harm the sheltered person.  In addition, the court must check if the sheltered person did not give a prolonged power of attorney, i.e. a power of attorney granting a third person the right to take care of the minor’s needs (this is done with first degree family members). The option of entrusting a power of attorney was added as part of an amendment to the law of capacity.


    The most important condition in the Court’s considerations of whether to appoint a guardian is that the court must examine whether the cause can be achieved in a different manner. If the court feels that there is room to appoint a guardian, then this will be done. However, the court must specify exactly the powers of the guardian and for what reason he/she is appointed. In addition, the court must specify in the letter of appointment the period of time in which the guardian is appointed. It should be noted that a guardian can always apply to the court for instructions, in any matter that may be questioned regarding his authority to act for the benefit of the privileged person.


    When a guardian is appointed to a person who is incompetent, the appointment is canceled automatically when (and if) a person ceases to be incompetent. On the other hand, any appointment of a guardian is limited in time, at the discretion of the court. The latter, of course, has the power to extend the term of appointment of the guardian.

    What are the conditions for the appointment of a guardian?

    Any person can be appointed as a guardian, as is stated in section 34A of the law of capacity. A corporation can be appointed as a guardian too and the Administrator-General (a government office). Note that there are associations (corporations) operating under the supervision of the Administrator-General, who are appointed by the court in the event that there is no other suitable person who can serve as a guardian. These associations employ specific people who serve as guardians for the elderly or other sheltered persons. Although any person can be appointed as a guardian, the court will appoint the person who is most suitable for this in accordance with the circumstances of the matter.


    What is a decision supporter?

    As mentioned above, the goal is to violate as few human rights as possible, which brings to the wish to avoid appointing a guardian, as much as possible. Therefore, there is also the possibility of appointing a “decision supporter” – that is, a person whose task is to assist another person to make informed and correct decisions without appointing the decision-supporter as guardian, with all that it entails, including the violation of the sheltered person’s autonomy.


    Among other things, the role of the decision-supporter is to assist the sheltered person in ordinary daily activities, but without being a guardian. Incidentally, the possibility of appointing a decision supporter was facilitated not long ago, in a landmark ruling of the Family Court, where it was determined that the Custodian would be appointed to decisions’-supporter which will help her, rather than a guardian.


    To sum:

    He rules of legal capacity are our legal base as citizens of the country and more – our legal base as human beings, entitled to rights and obligations. There is no doubt that the capacity law deals with crucial issues – appointing guardians, taking care of sheltered people etc. this area is very significant and important and the court has a crucial role with in it. Therefore, it is very important to get legal advice from an experienced family lawyer.

    Consult with a team of veteran and experienced lawyers in the field!

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