Property and Divorce: Understanding Your Rights When a Marriage Ends
Going through a divorce can be incredibly tough, especially when there are valuable assets involved like the family home. It's crucial to understand your legal rights, particularly when one partner might try to move money around to avoid paying what they owe.
A recent case in the Western Cape High Court highlighted just how complicated this can get when a divorced couple disagreed over the money from their jointly-owned home.
The Case: Sold Home, Frozen Funds?
In this specific case, a South African woman (let's call her "the Wife") went to court to try and stop her soon-to-be ex-husband (let's call him "the Husband"), who is from Colombia, from spending his half of the money they got from selling their family home in Stellenbosch.
The couple got married in Colombia in 2015 and had a son in 2016. Their marriage unfortunately broke down in 2023. They mutually agreed to sell their home while their divorce was still being processed, and the money from the sale is currently being held by a third party (like a lawyer's trust account).
The Wife argued that if the Husband spent his share of the money, she wouldn't be able to claim what she believed she was owed for spousal and child support. She claimed that the Husband had no other assets in South Africa, was supported by his parents' fruit export business in Colombia, didn't have the legal right to live in South Africa permanently, and planned to move back to Colombia for good. This, she said, would make it very hard to get any future court order for payments enforced. So, she wanted the sale money to stay in the trust until their divorce was finalized.
What is an "Anti-Dissipation Interdict"?
Under South African law, an "anti-dissipation interdict" is a legal term for a court order that stops someone from getting rid of their assets if they intend to avoid paying a debt they owe (like maintenance). To get such an order, the Wife needed to prove a few things:
- A valid claim: That she had a legitimate underlying claim for money.
- Fear of losing assets: That she had a real fear that the Husband was about to get rid of the money.
- Intent to avoid obligations: That he was doing this specifically to avoid his maintenance responsibilities.
- No other way: That she had no other reasonable legal way to ensure she would get paid.
The Court's Decision: No Proof of Hiding Money
After looking at all the evidence, the court firmly rejected the Wife's request to freeze the Husband's funds. The judge found no clear proof that the Husband actually intended to hide or spend his money to avoid his obligations. In fact, the court noticed that the Wife herself had sold a joint asset (a Mercedes Benz car) and kept all the money from that sale.
Even worse, the court saw the Wife's application as a sneaky attempt to go back on a written agreement they had previously made to share the money from the house sale. The court was quite critical of the Wife's intentions, describing her application as a "mala fide" (bad faith) abuse of the legal process, designed to force the Husband to give up his share of the money.
Planning for Your Divorce? Protect Your Interests!
This case highlights that while courts aim to protect vulnerable parties in a divorce, they also expect honesty and adherence to agreements.
If you're considering a divorce and are worried about how your shared property and finances will be handled, it's essential to get professional legal advice from reputable law firms such as STBB Attorneys early. Their experienced divorce attorneys can help you understand your rights and make sure your interests are protected.