'Love is grand. Divorce is a hundred grand.' (Anon)
In the boiler room that is the divorce court, it’s common to hear accusations and counter-accusations of one spouse disposing of or concealing marital assets to hide them from the other spouse.
The good news is that our law provides effective ways to protect yourself in such a situation – but the onus is on you to prove your case. The outcome of a recent fight in the Supreme Court of Appeal (SCA) provides an excellent example.
'You can’t do that!'
Married out of community of property (with accrual), a Northwold couple divorced after their 27-year marriage failed. The question of splitting the assets per the accrual agreement was held over for later determination.
Two years after the divorce the ex-husband sold his immovable property without telling his ex-wife. She was having none of that and applied to the High Court for an 'anti-dissipation interdict' on the basis that her ex-husband 'would dissipate his assets with the objective of frustrating her claim'. The High Court ordered the conveyancing attorneys to retain the proceeds of the sale in an interest-bearing account until the accrual aspect had been finalised.
The ex-husband, unemployed at the age of 64 and needing to settle his debts with the R1,6m proceeds of the property sale, lodged an appeal to the SCA.
The SCA dismissed the wife’s interdict, holding that it was for the ex-wife to prove that her ex-husband was 'intentionally secreting or dissipating assets, or [was] likely to do so with the intention of defeating [her] claim'.
The SCA found that she had not produced any evidence that her ex-husband had sold his house with the intention of frustrating her claim. He had explained his need for funds to pay his debts and there were no allegations that he had acted in bad faith.
Nor did the Court accept the ex-wife’s argument that, this being a dispute over matrimonial rather than commercial issues, there were 'exceptional circumstances' which would exempt her from having to prove an intention to defeat her claim. 'To qualify as exceptional', said the Court, 'the circumstances must be out of the ordinary and of an unusual nature, something which is excepted in the sense that the general rule does not apply to it; something uncommon, rare or different.' It was not enough to say that she had been married under the accrual system and therefore had an accrual claim against his assets.
The Court accordingly set aside the anti-dissipation order. The ex-husband gets to keep the proceeds of the property sale (which will now be taken into account in the final accrual calculations).
It all comes down to intention
The ex-wife failed in her claim for lack of any proof that her ex-husband had sold his property with 'an intention to render [her] claim hollow'. If you want to achieve a different outcome (in the absence of exceptional circumstances), you’ll have to gather proof that your spouse or ex-spouse is intentionally hiding or dissipating assets, or is likely to do so, with the intention of frustrating your claim.
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