“I got divorced during July 2017 after my ex-husband and I were married in community of property for the past 15 years. According to the Decree of Divorce issued by the Court, the Court ordered the division of the joint estate, as no agreement could be made between my ex-husband and me. The order is not clear as to who will take which assets from the joint estate. How does the division of the joint estate take place and what process must be followed?”
The common misconception made by parties in a divorce action based on a marriage in community of property is that the Court will decide on how the division of the property will take place, i.e. which party will remain owner of the immovable property or in most cases the movable property including the pots and pans.
This is however not the case as according to Section 7 (1) and 7(2) of the Divorce Act, Act 70 of 1979, which states that the Court granting a decree of divorce may, either in accordance with a written agreement entered into by the parties, or mero moto, in the absence of such an agreement, make an order with regard to the division of the assets of the parties.
When an written agreement is made between the parties prior to the divorce order being granted the Court will incorporated such an agreement into the decree of Divorce explicitly dealing with the division of the estate.
In normal circumstances and if a spouse does not claim for forfeiture of the joint estate and a forfeiture order is subsequently granted, the joint estate will be equally divided between the parties unless the parties agrees in writing on how the estate will be divided.
Forfeiture order must be applied for by the party requesting same as such the pleadings must clearly convey the said application and if not the Court will not grant a forfeiture order. In deciding whether to grant a forfeiture order the Court will take into consideration, the duration of the marriage, the circumstances which gave rise to the breakdown of the marriage and any substantial misconduct on the part of either of the parties and the fact that an undue benefit may accrue to the one party in relation to the other if an order of forfeiture is not granted.
A Forfeiture order is based on the common law principal, being that no one ought to benefit financially from a marriage that he or she had destroyed.
To enable the Court to perform or comply with the order of division of the joint estate, the Court has the power to appoint a receiver or liquidator to realise (which means valuate and sell the assets) and divide the assets of the joint estate on its behalf.
A further question that then arises is who pays for the appointment and subsequent division of the estate by the receiver or liquidator?
The simple answer is you and your ex-husband. The receiver or liquidator’s fees will be covered by the joint estate. Thus if the parties still cannot after consultation with the receiver or liquidator agree in writing how to divide the joint estate, the receiver or liquidator will sell every asset in the joint estate, after which the receiver or liquidator will settle all the liabilities of the joint estate, which includes his/her fees and then divide the proceeds of the sale equally between the parties.
If this happens the parties might come to realise the hard truth that it will be more costs effective to come to an agreement then the alternative of appointing a liquidator.
Our advice is to before issuing a divorce summons against your spouse to consult with a divorce attorney to establish the risks involved and to formulate a just and fair agreement between the parties as to how to divide the joint estate.
Divorce Act, Act no: 70 of 1979
Schäfer’s Family Law Service, Service Issue 66