Safeguarding Marital Assets: The Crucial Role of Anti-Dissipation Interdicts in Divorce Proceedings.

An anti-dissipation interdict is an order that prevents a person from disposing of or concealing assets during divorce proceedings. Unlike Mareva injunctions, which prevent a defendant from removing assets from a jurisdiction or disposing of them, anti-dissipation interdicts have unique features tailored to address the specific concerns within a divorce context.

Example 1: Property Transfer Freeze In a divorce case where one spouse attempts to sell or transfer ownership of marital property to a third party or into a trust to avoid equitable division, an anti-dissipation interdict can be requested. The court grants an order to freeze the property, preventing any transfer until the completion of the divorce proceedings, ensuring the assets remain available for equitable distribution.

Example 2: Business Asset Protection When one spouse, who owns a significant share in a family business, starts to divert business income to new, separate accounts, or begins transferring business assets out of reach, the other spouse can seek an anti-dissipation interdict. This order would protect the business assets from being diminished or hidden, ensuring they are properly evaluated and included in the divorce proceedings.

Section 15(9)(b) of the Matrimonial Property Act serves as a crucial reference point for discussions around the dissipation of matrimonial assets in marriages in community of property. In essence, this section stipulates that a spouse is prohibited from disposing of, pledging, transferring, or gifting valuable assets such as immovable property, shares, stocks, insurance policies, investments, mortgage bonds, fixed deposits, jewellery, coins, stamps, paintings, or other investment-held assets without the other spouse’s consent.

Furthermore, the Act restricts a spouse from withdrawing funds from accounts in the other spouse’s name, engaging in credit agreements as defined by the National Credit Act, 2005, or acting as a surety without the other’s agreement. It also extends to the prohibition against alienating, encumbering, or in any way burdening household furniture or effects that are part of the joint estate, as well as receiving money owed to the other spouse or the joint estate, without consent.

The necessary consent, except when needed for deed registration, can also be ratified reasonably post-action. In specific instances, consent for these actions must be obtained individually for each act and witnessed by two competent witnesses.

Donations made without the other spouse’s consent may be permissible under certain conditions, provided they do not unreasonably prejudice the other spouse’s interest in the joint estate. The court will consider various factors, including the donation or alienation’s value, purpose, the spouses’ financial and social standing, their standard of living, and other relevant considerations.

If a spouse engages in transactions that contravene these provisions without the third party being aware or able to reasonably know of such contravention, and if the joint estate incurs a loss as a result, the affected spouse can request the court to adjust the division of the joint estate in their favor. This adjustment would take into account the value of the dissipated property as if it were still part of the joint estate.

Section 20 further empowers a court, upon a spouse’s application, to order the immediate division of the joint estate in equal shares or as deemed just, if it is established that one spouse’s conduct or proposed conduct is likely to seriously prejudice the other spouse’s interest in the joint estate, without adversely affecting other parties. The court may also substitute the community of property with another matrimonial property regime under certain conditions, ensuring justice and fairness between the spouses. This provision is particularly relevant for marriages in community of property, offering protection and recourse against the mismanagement or dissipation of matrimonial assets.

The remedy provided by an anti-dissipation interdict is not designed to substitute the claim for losses but to enforce the execution of a judgment, ensuring that assets remain available. This principle was highlighted in the case of Carmel Trading Company Ltd v Commissioner for the South African Revenue Services and Others (447/07) [2007] ZASCA 160; [2008] 2 All SA 125 (SCA); 2008 (2) SA 433 (SCA), emphasising its role in preventing the execution of a hollow judgment.

Consider a scenario where one spouse, anticipating a divorce, begins transferring assets to relatives or selling them at undervalue. The other spouse, aware of these actions, may apply for an anti-dissipation interdict to freeze the assets. This process involves demonstrating a prima facie case that the respondent is arranging his affairs to frustrate the settlement, as exemplified in Msunduzi Municipality v Natal Joint Municipal Pension Fund 2007 (1) SA 142 (N), see also Webster v Mitchell 1948 (1) SA 1186 (W) 1189, Gool v Minister of Justice 1955 (2) SA 682 (C) at 688 D – E and Setlogelo v Setlogelo 1914 AD 21.

When navigating the complexities of divorce, particularly regarding financial settlements, anti-dissipation interdicts emerge as a pivotal legal tool to prevent the unjust concealment or dissipation of assets. Understanding the requirements and legal precedents governing these interdicts is crucial for parties seeking to protect their financial interests effectively.

Requirements for Obtaining an Anti-Dissipation Interdict

The foundation for securing an anti-dissipation interdict is built on several key requirements, closely mirroring those for general interim interdicts but tailored to address the specific context of asset protection in divorce scenarios. These requirements are as follows:

Prima Facie Right: The applicant must demonstrate a prima facie right over the assets in question. This does not mean the right needs to be conclusively proven at this stage but should be established to a degree that outweighs mere conjecture. In divorce proceedings, this often translates to showing a legal or equitable interest in the assets being protected.

Well-grounded Apprehension of Irreparable Harm: There must be a tangible fear that, without the interdict, the applicant will suffer irreparable harm. In the context of divorce, this harm typically relates to the potential loss of financial assets critical for ensuring a fair settlement.

Balance of Convenience: The court must be satisfied that the balance of convenience favours the granting of the interdict. This involves weighing the potential harm to the applicant if the interdict is not granted against the inconvenience or harm that may be caused to the respondent by its imposition.

Absence of Alternative Remedies: The applicant must show that there is no other satisfactory remedy available. Given the nature of asset dissipation, often the only effective remedy is to freeze assets to prevent their disappearance or diminution in value.

When determining whether an Applicant has satisfied these requirements, courts are guided by the approach articulated by Holmes J in Olympic Passenger Services v Ramlagan1957 (2) SA 382 (D):

It thus appears that where the applicant’s right is clear, and the other requisites are present, no difficulty presents itself about granting an interdict. At the other end of the scale, where his prospects of ultimate success are nil, obviously the court will refuse an interdict. Between these two extremes falls the intermediate cases in which, on the papers as a whole, the applicant’s prospects of ultimate success may range all the way from strong to weak. The expression ‘prima facie established though open to some doubt’ seems to me a brilliantly apt classification of these cases. In such cases, upon the proof of a well-grounded apprehension of irreparable harm, and there being no ordinary alternative remedy, the court may grant an interdict.

“It has a discretion, to be exercised judicially upon a consideration of all the facts. Usually this will resolve itself into a nice consideration of all the prospects of success and the balance of convenience. The stronger the prospects of success, the less need for such a balance to favour the applicant: the weaker the prospects of success, the greater the need for the balance of convenience to favour him. “I need hardly add that by balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be granted.”

Legal Precedents

The jurisprudence surrounding anti-dissipation interdicts is rich, with several landmark cases providing clarity and guidance on their application. Key among these are:

  • Carmel Trading Company Ltd v Commissioner for the South African Revenue Services and Others (447/07) [2007] ZASCA 160; [2008] 2 All SA 125 (SCA); 2008 (2) SA 433 (SCA): This case underscored the principle that an anti-dissipation interdict is not a claim in itself but a means to ensure enforcement of a potential judgment, thus preserving the integrity of the judicial process by preventing a judgment from being rendered nugatory.
  • Msunduzi Municipality v Natal Joint Municipal Pension Fund 2007 (1) SA 142 (N): Here, the court elaborated on the necessity of demonstrating a prima facie case of asset dissipation, highlighting the significance of showing deliberate actions by the respondent to frustrate equitable settlement.
  • Knox D’Arcy Limited v Jamieson [1996] ZASCA 58; 1996 (4) SA 348 (A): In this ruling, the Supreme Court of Appeal discussed the standards of proof and the approach to disputed facts, affirming the importance of prima facie evidence in the context of interim interdicts, including those aimed at preventing asset dissipation. Here the court stated: “anti-dissipation” suffers from the defect that in most cases, and certainly in the present case, the interdict is not sought to prevent the respondent from dissipating his assets, but rather from preserving them so well that the applicant cannot get his hands on them. Since the purpose of the interdict is to prevent a person (the intended defendant) who can be shown to have assets and who is about to defeat the plaintiff’s claim, or to render it hollow, by secreting or dissipating assets before judgment can be obtained or executed, and thereby successfully defeating the ends of justice by doing so, the applicant who bears the onus to establish the necessary requirements for the grant of the interdict, need show a particular state of mind on the part of the respondent, i e, that he is getting rid of the funds, or is likely to do so, with the intention of defeating the claims of creditors. But it is not essential to establish an intention on the part of the respondent to frustrate an anticipated judgement if the conduct of the respondent is likely to have that effect”.
  • SR v DR and Another (2980/2007) [2022] ZAGPJHC 172: The applicant’s case was based on an anti-dissipation interdict, which would require her to show that the first respondent was likely to spirit away the proceeds from the sale of his property. Adams J found that the applicant had established that she had a prima facie case that she was entitled to the proceeds of the sale of the first respondent’s property. She would have suffered irreparable harm since the said property was the first respondent’s only asset.
  • Messina v South African Railways and Harbours 1929 AD 195 the following was stated: “In an application for an interim interdict pending action, the court has large discretion in granting or withholding an interdict. Where there is mere possibility, not a practical certainty, of interference or injury, as in the present case, the court will be reluctant to grant an interdict, especially if the party seeking the interdict will have other means of redress and will not suffer irreparable damage.  The court is entitled to and must regard the possible consequences, both to the Applicant and to the respondent, which will ensue if an interdict is grant or withheld.”
  • In the case of RS v MS 2014(2) SA 511 GSJ, the court stated the following: “But, even if these jurisdictional requirements are present, then an applicant must still show a well-grounded apprehension of irreparable loss, should the interdict pendent lite not be granted. It is perhaps apposite to point out that, as of the draconian nature, invasiveness and conceivable in equitable consequences of such anti-dissipation relief, the courts have been reluctant to grant it, except in clearest of cases.”
  • In AB v JB [2016] ZASCA 93; 2016 (5) SA 211 (SCA), the court clarified that a spouse’s accrual claim arises only upon the dissolution of the marriage, either by divorce or death. During the marriage, both spouses have the right to share in the accrual of each other’s estates, but the actual value of this claim is only determined at the end of the marriage. The Supreme Court of Appeal emphasized that while the right to accrue benefits exists during the marriage, its quantification and enforceability are contingent upon the marriage’s dissolution, underlining the prospective nature of the accrual system.
  • In ND v MD [2020] ZAGPJHC 228; [2021] 1 All SA 909 (GJ), the Gauteng Division of the High Court addressed the issue of asset dissipation in anticipation of divorce and its impact on the accrual claim. Gilbert AJ highlighted the challenge posed by a spouse attempting to reduce their estate’s value to affect the accrual claim negatively. The court recognized the potential for this behavior to undermine the equitable distribution envisaged by the accrual system, demonstrating the legal system’s responsiveness to safeguarding against such manipulations.
  • In Langebrink v Langebrink 2017 JDR 1059 (GJ) and Gernetzky v Gernetzky [2007] JDR 0247 (E), both courts found that the contingent nature of the accrual claim does not preclude its protection through an interim interdict. These cases established that even though the accrual claim’s value is contingent and undetermined until the marriage’s dissolution, there exists a prima facie right to prevent the dissipation of assets that could potentially satisfy the accrual claim. This preemptive protection underscores the courts’ willingness to intervene to preserve the integrity of the accrual system and ensure that the eventual division of the estate is conducted fairly and in accordance with the law.
  • In the case of N.C.M v V.T.M (2017) ZAECGHC 75, the court elucidated the conditions under which an applicant can successfully secure an anti-dissipation order. Specifically, the applicant must demonstrate that the respondent is either disposing of assets or likely to dispose of assets with the intention of undermining the claims of creditors. An anti-dissipation order serves as a form of interdict, restricting an individual from disposing of their own property, even when no existing claim over such property has been established by another party. In this instance, Mrs M was unable to prove that Mr M was dissipating or likely to dissipate his pension fund benefits with the objective of defeating her claims in the context of their divorce proceedings. The judgement further clarified that an anti-dissipation order remains enforceable only as long as the member spouse retains membership in the Fund. Consequently, should the membership of the spouse in the Fund terminate without a valid and enforceable divorce decree, the Fund is obligated to disburse the benefits to the member.
  • In MWS v NSS and Another [2020] ZANWHC 36; 2021 (6) SA 201 (NWM): the High Court (North West Division, Mahikeng) examined a dispute involving the Government Employees Pension Fund (GEPF) during ongoing divorce proceedings. The member spouse, after 30 years of teaching, had accrued a substantial pension benefit, which became accessible upon her resignation. Amidst the divorce, the non-member spouse sought a court order to prevent the fund from disbursing the benefit, fearing dissipation of the asset. He argued that the member spouse’s actions, particularly her claim for forfeiture of benefits and lack of financial transparency, indicated a likelihood of asset dissipation. The member spouse countered these allegations by detailing her financial situation, highlighting her resignation due to ill health exacerbated by the marital stress caused by the non-member spouse. She articulated her need for the pension benefit to cover living expenses and medical treatment. The court, in its deliberation, applied a stringent criterion for granting an anti-dissipation order, as established in Knox D’arcy Ltd v Jamieson and Others 1996(4) SA 348 (SCA). This standard necessitates evidence of bad faith or a specific intention by the asset’s owner to dissipate it, thereby undermining the other party’s claim. The judgement referenced the principles applied in NCM v VTM by Bloem J, who required “credible evidence” of the respondent’s intent to waste or secret assets to defeat the claimant’s divorce proceedings claim. Upon applying this rigorous test, the court found no evidence of the required intent to dissipate the pension benefit to thwart the non-member spouse’s claim. Moreover, the court considered the detrimental impact freezing the benefit would have on the member spouse, who needed the funds for self-support, medical expenses, and settling joint estate debts. Given these circumstances, the court concluded that freezing the benefit would not be appropriate and declined to grant the anti-dissipation order.

These judgments collectively articulate the intricacies of the accrual system, demonstrating the courts’ role in balancing the equitable interests of spouses within the framework of matrimonial property law. They underscore the principle that while the accrual claim matures at the marriage’s dissolution, measures exist to protect this contingent right against actions that would unfairly prejudice a spouse’s entitlement.

The strategic application of anti-dissipation interdicts in divorce proceedings requires a nuanced understanding of both the legal requirements and the relevant case law. These interdicts serve as a critical safeguard, ensuring that assets remain intact and available for fair division upon the resolution of divorce disputes. By meticulously adhering to the established requirements and drawing upon the wisdom of legal precedents, parties can effectively navigate the challenges of asset protection in divorce, thereby securing a foundation for equitable financial settlements.

The introduction of anti-dissipation interdicts into the divorce process marks a significant development in the protection of marital assets, fundamentally altering the landscape of financial settlements. These legal measures ensure that assets cannot be concealed, squandered, or otherwise disposed of, thereby safeguarding the equitable division of marital property. The impact of these interdicts on divorce settlements is profound, extending across various dimensions of the divorce process.

Ensuring Equitable Asset Distribution

One of the primary impacts of anti-dissipation interdicts is the preservation of marital assets, ensuring that both parties receive a fair share upon divorce. By preventing one party from diminishing the marital estate, these interdicts uphold the principle of equitable distribution, a cornerstone of divorce law. This is particularly crucial in cases where there is a significant power imbalance between the parties or where one party has greater control over the financial resources.

Deterring Unfair Financial Practices

The mere possibility of an anti-dissipation interdict serves as a deterrent against unfair financial practices, such as transferring assets to third parties or converting them into untraceable forms. Knowing that such actions can be swiftly countered by legal measures, parties are more likely to engage in transparent and fair negotiations, leading to more amicable settlements and reducing the need for protracted legal battles.

Providing a Level Playing Field

In many divorce cases, one party may have limited knowledge or access to the couple’s financial affairs. Anti-dissipation interdicts level the playing field by ensuring that all assets are accounted for and subject to scrutiny during the settlement process. This transparency is essential for informed decision-making and fair negotiations, allowing both parties to make claims based on a complete understanding of the marital estate.

Influencing Negotiation Dynamics

The presence of an anti-dissipation interdict can significantly influence the dynamics of divorce negotiations. With assets effectively ‘frozen’, both parties may be more inclined to reach a settlement promptly, knowing that the prolonged concealment or dissipation of assets is not a viable strategy. This can lead to quicker resolutions, reduced legal costs, and less emotional strain for both parties.

Legal and Financial Implications

The implementation of anti-dissipation interdicts also carries legal and financial implications. For the party seeking the interdict, there is the immediate benefit of protecting their potential share of the assets. However, it also imposes certain responsibilities, such as the need to provide sufficient evidence of the risk of asset dissipation. For the party subject to the interdict, it places constraints on their ability to manage their assets freely, which can have both short-term and long-term financial impacts.

Anti-dissipation interdicts have a profound impact on divorce settlements, promoting fairness, transparency, and equity in the distribution of marital assets. By deterring the concealment and dissipation of assets, these legal measures protect the interests of both parties, contributing to more equitable and amicable resolutions. As divorce law continues to evolve, the role of anti-dissipation interdicts in ensuring fair settlements remains a vital consideration for legal practitioners and divorcing couples alike.

The use of anti-dissipation interdicts in divorce cases serves as a vital tool for protecting assets and ensuring fair settlements. Through legal precedents and the careful application of these orders, courts can prevent the unjust dissipation of assets, providing a measure of security and fairness in the challenging process of divorce.

Written by Bertus Preller, a Family Law and Divorce Law attorney and FAMAC accredited Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.