The Factual Matrix: A Long-Separated Couple and the Quest for a “Clean” Divorce
The applicant, TSY, and the respondent, LEY, married in community of property on 27 July 1989. The marriage endured for 22 years before the parties separated in 2011, producing two children who had both reached adulthood by the time these proceedings were instituted. Despite the lengthy separation, TSY only instituted divorce proceedings in February 2022, some eleven years after the parties had ceased cohabiting.
In her plea, LEY admitted that the marriage had irretrievably broken down, attributing the breakdown largely to what she described as TSY’s various extra-marital affairs. LEY’s counter-claim sought maintenance in the substantial sum of R150 000 per month, which was to be index-linked and adjusted annually. She also sought the appointment of a receiver and liquidator to divide the joint estate. TSY, in his plea to the counter-claim, denied that LEY was entitled to any maintenance and opposed the appointment of a receiver and liquidator.
After pleadings closed and discovery was made, LEY’s attorney complained on 24 August 2024 that TSY’s discovery was incomplete. The allegation was that TSY had failed to discover documents relating to various trusts under his control or of which he is a beneficiary. The suggestion underlying this complaint was that some or all of these trusts form part of the joint estate. TSY denied that any of the trusts form part of the joint estate and further denied that their value and nature are relevant to the issues in the divorce action. He steadfastly refused to disclose the documents LEY demanded. LEY, for her part, has not yet taken steps to compel the production of these documents.
The parties explored the possibility of settling the divorce action but were unable to reach an agreement. Since October 2024, the divorce action has been at a complete standstill. It is against this backdrop that the present application was brought.
Since 2011, TSY has lived with his current domestic partner, AS, with whom he has two children. TSY says he wishes to marry AS. To facilitate this, TSY applied to the court for a separation of issues in the divorce action. His proposal was that the dissolution of his marriage to LEY be separated from the proprietary consequences of the divorce. Since both parties agreed that a decree of divorce should be granted, TSY submitted that there was no reason why such a decree could not be granted on an unopposed basis, with LEY’s claims for maintenance and the division of the joint estate being postponed for later determination. TSY expressed his desire not to be “shackled to a dead marriage”, a phrase borrowed from the judgment in NK v KM 2019 (3) SA 571 (GJ). He feared that LEY was dragging her feet in the divorce proceedings and foresaw many painful months or years of litigation over the division of the joint estate.
Conceptual Inseparability: Why Marriages in Community of Property Are Different
Wilson J commenced his analysis by observing that a marriage in community of property is not merely a union of souls but a mingling of estates. At the point of marriage, each spouse’s assets become part of one larger estate, with each spouse owning an undivided half-share in almost everything that once belonged exclusively to the other spouse. The court referred to the well-established authorities of Estate Sayle v Commissioner for Inland Revenue 1945 AD 388 and De Wet NO v Jurgens 1973 (1) SA 38 (A) in support of this proposition. Accordingly, a marriage in community of property is a particularly intimate union which, depending on the value and complexity of the joint estate, may only be dissolved with some difficulty.
The central question before the court was whether the dissolution of a marriage in community of property is conceptually separable from the division of the joint estate. Ms Woodward, who appeared for TSY, submitted that it is. She relied on several cases in which the prayer for a decree of divorce had been separated from prayers for maintenance and the division of assets, with the effect that the divorce proceeded on an unopposed basis and the parties’ monetary and proprietary claims stood over for later determination.
Wilson J identified a fatal flaw in this submission. Each of the cases upon which Ms Woodward relied dealt with the dissolution of marriages out of community of property. In other words, the marriage in each case did not involve the mingling of the spouses’ estates. It followed that a decree of divorce could be granted without any direct impact on either party’s estate. Each party took out of the marriage the assets they owned at the point of divorce. In cases where the matrimonial property regime was subject to an accrual claim, that claim was conceptually separable from the claim for divorce, since it embodied no more than a personal right to payment of half the difference between the net increase in the value of each spouse’s estate during the marriage.
Marriages in community of property are different precisely because there are not two estates involved but one. Moreover, once married, each party owns an undivided share in that estate by operation of law. That ownership right arises because, and only because, the parties are married in community of property. There is accordingly no meaningful sense in which the joint matrimonial estate can survive a decree of divorce. Since each party owns an undivided half-share in the estate, it is necessary to determine how the estate is to be divided before the parties can be divorced. The fusion of the parties’ estates is conceptually inseparable from the marriage itself.
The court acknowledged that it is possible to place the joint estate in the hands of a liquidator and to say that the estate will be divided in the manner that the liquidator determines, subject to whatever guidance the law or a court may provide. However, what TSY wanted was a divorce without anything at all being said about the dissolution of the joint estate. Wilson J found that to be inconceivable. A marriage in community of property entails the formation of one joint estate. Likewise, the dissolution of such a marriage entails the division of that estate.
Ms Woodward took her cue from the decision in TD v LD [2024] ZAGPJHC 751, submitting that this problem was more apparent than real. She argued that the only effect of a decree of divorce would be to provide what was referred to in the TD case as a “strike date”, by reference to which the value of the joint estate could be calculated and then later divided. In other words, the decree of divorce would freeze each party’s claim against the other for a portion of the value of the joint estate as at the date of divorce.
Wilson J rejected this submission. The TD case dealt with a marriage out of community of property where the main outstanding issue between the parties was the value of the accrual. The claim for the value of the accrual could be determined later, since it was no more than a personal right to payment of a sum of money, rather than a claim for the division of a joint estate. In that matter, the parties’ estates had been kept separate notwithstanding their marriage. Accordingly, there was no co-ownership of assets, at least not by virtue of the marriage. The present case was different. Each party owned half of one undivided estate. Their claim was neither personal nor exclusively monetary in nature. It was to ownership of half of nearly everything the other has. The concept of a “strike date” was inapplicable, since the problem was not merely the valuation of the estate, but the division of the parties’ joint ownership of it.
In her post-hearing submissions, Ms Woodward relied upon Gillespie v Gillespie (case no. 6133/05, 1 December 2005). Wilson J held that this case did not assist TSY. In that matter, Van Oosten J, in dealing with the dissolution of a marriage in community of property, separated prayers for a decree of divorce and division of the joint estate, on the one hand, from prayers for rehabilitative maintenance, on the other. The plaintiff was granted leave to apply for a decree of divorce and the appointment of a liquidator and receiver to divide the joint estate, while postponing the defendant’s maintenance claims. As the court pointed out, that was not the separation TSY sought. TSY wished to separate his prayer for the decree of divorce from the question of what happens to the joint estate on divorce. He expressly opposed the appointment of a receiver and liquidator. The Gillespie case was accordingly not authority for the proposition that the question of the dissolution of a marriage in community of property can be separated from the question of the division of the joint estate.
The court concluded that the issue of the dissolution of the marriage was not meaningfully separable from the issue of the division of the joint estate.
The Convenience Test and Practical Implications for Both Parties
Convenience is the overriding consideration in any application to separate the issues arising in a trial action. To be capable of convenient separation, the issues to be separated must be conceptually distinct. They must also generally be capable of determination without hearing evidence that will later have to be repeated in relation to other triable issues. It is also desirable that a repetition of witnesses is avoided, especially if credibility findings will have to be made in relation to particular witnesses who may have to testify more than once in respect of different issues.
Once a court is satisfied that the issues sought to be isolated for separate determination are conceptually distinct from those arising in the rest of the action, and that there will be little or no overlapping evidence required to hear them, the question is whether there is some advantage to be had in ordering a separation which is not outweighed by any obvious or foreseeable disadvantage. If the advantages outweigh the disadvantages, the court will generally order the separation. Wilson J referred to the authority of S v Malinde 1990 (1) SA 57 (A).
Wilson J noted, with the assistance of counsel, that he had not been able to find a case in which the dissolution of a marriage in community of property has been separated from the division of the joint estate. Nor had he found a case in which it has expressly been held that such a separation is impossible. In his view, this was at least partly because it has been tacitly accepted that it makes no sense to order such a separation. It was also because there are few if any conceivable circumstances in which such a separation would be convenient in the required sense.
The court found that the present case provided a good example of the inconvenience to both parties that such an order would cause. While it was possible to muster a degree of sympathy for TSY’s position that he did not wish to remain married to LEY, the court could not see how separating the decree of divorce from the division of the joint estate would assist TSY with what he believed was his predicament.
Assuming that it were possible to divorce the parties without dividing the joint estate, the question of exactly what form that division should take would continue to haunt TSY. There could be no question, in the absence of the appointment of a receiver and liquidator, of LEY’s ownership of half of TSY’s assets simply coming to an end on divorce, at least not without some sense of which assets presently in the joint estate the parties would be allowed to retain, or of the monetary value to which their co-ownership rights should be liquidated.
If TSY chose to marry AS before that question was settled, he would take an encumbered estate into his new marriage. It was hard to foresee what effect that encumbrance might have on the new marriage or on any joint estate or accrual that new marriage might involve, but Wilson J was sure that nothing good would come of it. The problems for all concerned were likely to multiply as time went on.
The likely inconvenience to LEY was even greater. LEY had yet to apply for interim maintenance pending the resolution of the divorce action. She might never do so. But she was increasingly likely to do so the longer the divorce action took to resolve. Ms Woodward urged the court to find that it is competent to preserve LEY’s right to apply for interim maintenance even after the decree of divorce is granted. However, there was no unanimity on that point in the applicable case law. The court contrasted the decisions in the NK case, Gunston v Gunston 1976 (1) SA 179 (W), Beckley v Beckley (case number 01098/2015, 6 May 2015) and Beinstein v Beinstein 1965 (4) SA 449 (T), all of which decided that a claim for interim maintenance cannot survive the dissolution of a marriage, with the decisions in the Gillespie case and the TD case, which said otherwise. Wilson J held that it could not be “convenient” in the relevant sense to cast LEY’s rights into such doubt, especially where there was no concomitant upside for either party in doing so.
There was, in addition, the question whether LEY would ultimately succeed in proving that TSY’s various trusts should form part of the joint estate. TSY quite reasonably complained that LEY had taken no steps to join the trusts or compel discovery of documents relating to them. However, the court did not think it would be appropriate to prejudice LEY’s right to seek that relief by allowing the divorce to go ahead before the assets in the joint estate had been identified and valued, or before a receiver and liquidator had been appointed to do so. It seemed clear on the papers that TSY was the better-resourced of the two parties, and was able to litigate more extensively than LEY. His only real incentive to disclose his true worth was to obtain a decree of divorce. If a decree of divorce was granted before the contents and value of the joint estate were known, there was no reason to believe that TSY would not simply deploy his litigious firepower to exhaust LEY’s capacity to ensure adequate post-divorce disclosure.
TSY worried that LEY would simply exhaust him by delaying the resolution of the divorce action indefinitely. But Wilson J found that to be an unrealistic concern. There were numerous procedural mechanisms available to hurry the divorce action along. LEY’s attendance at a pre-trial conference might be compelled. The divorce action might be set down. LEY’s defence and counter-claim might be struck out unless she complied with the various obligations placed on a party in making a case ready for trial. Ms Woodward freely conceded that none of this had been attempted, and the court saw no reason to grant the conceptually and practically dubious relief TSY sought before it has.
For all these reasons, there were no true advantages to the separation of issues TSY sought, and a great many foreseeable disadvantages. Accordingly, the application was dismissed with costs, including the costs of counsel, which might be taxed on the “B” scale.
Questions and Answers
What is the fundamental legal nature of a marriage in community of property?
A marriage in community of property is not merely a union of souls but a mingling of estates. At the point of marriage, each spouse’s assets become part of one larger estate, with each spouse owning an undivided half-share in almost everything that once belonged exclusively to the other spouse. This makes it a particularly intimate union which, depending on the value and complexity of the joint estate, may only be dissolved with some difficulty.
How does ownership arise in respect of the joint estate?
Once married in community of property, each party owns an undivided share in the joint estate by operation of law. That ownership right arises because, and only because, the parties are married in community of property. Each spouse owns an undivided half-share in the estate.
What is the overriding consideration when a court considers an application to separate issues in a trial action?
Convenience is the overriding consideration in any application to separate the issues arising in a trial action. To be capable of convenient separation, the issues to be separated must be conceptually distinct. They must also generally be capable of determination without hearing evidence that will later have to be repeated in relation to other triable issues.
What test must be satisfied before a court will order a separation of issues?
Once a court is satisfied that the issues sought to be isolated for separate determination are conceptually distinct from those arising in the rest of the action, and that there will be little or no overlapping evidence required to hear them, the question is whether there is some advantage to be had in ordering a separation which is not outweighed by any obvious or foreseeable disadvantage. If the advantages outweigh the disadvantages, the court will generally order the separation.
Why are marriages in community of property different from marriages out of community of property for purposes of separating issues?
Marriages in community of property are different precisely because there are not two estates involved but one. In a marriage out of community of property, a decree of divorce can be granted without any direct impact on either party’s estate because each party takes out of the marriage the assets they owned at the point of divorce. The estates remain separate throughout the marriage.
What is an accrual claim and how does it differ from a claim for division of a joint estate?
An accrual claim embodies no more than a personal right to payment of half the difference between the net increase in the value of each spouse’s estate during the marriage. It is conceptually separable from the claim for divorce. In contrast, a claim for division of a joint estate is neither personal nor exclusively monetary in nature. It is a claim to ownership of half of nearly everything the other party has, involving co-ownership of assets by virtue of the marriage itself.
Can the joint matrimonial estate survive a decree of divorce in a marriage in community of property?
There is no meaningful sense in which the joint matrimonial estate can survive a decree of divorce. Since each party owns an undivided half-share in the estate, it is necessary to determine how the estate is to be divided before the parties can be divorced. The fusion of the parties’ estates is conceptually inseparable from the marriage itself.
What was the significance of the “strike date” argument advanced by the applicant?
The applicant argued that the only effect of a decree of divorce would be to provide a “strike date” by reference to which the value of the joint estate could be calculated and then later divided. The decree of divorce would freeze each party’s claim against the other for a portion of the value of the joint estate as at the date of divorce. However, the court rejected this argument as the concept of a strike date is inapplicable where the problem is not merely the valuation of the estate, but the division of the parties’ joint ownership of it.
Why did the court reject the reliance on the TD case?
The TD case dealt with a marriage out of community of property where the main outstanding issue was the value of the accrual. The parties’ estates had been kept separate notwithstanding their marriage, and there was no co-ownership of assets by virtue of the marriage. The claim for the value of the accrual was no more than a personal right to payment of a sum of money. This was fundamentally different from the present case where each party owned half of one undivided estate.
What was the significance of the Gillespie case and why did it not assist the applicant?
In the Gillespie case, the court separated prayers for a decree of divorce and division of the joint estate from prayers for rehabilitative maintenance. The plaintiff was granted leave to apply for a decree of divorce and the appointment of a liquidator and receiver to divide the joint estate, while postponing the defendant’s maintenance claims. This was not the separation the applicant sought, as he wished to separate his prayer for the decree of divorce from the question of what happens to the joint estate on divorce and expressly opposed the appointment of a receiver and liquidator.
What practical problem would arise if a divorce were granted without division of the joint estate?
In the absence of the appointment of a receiver and liquidator, the respondent’s ownership of half of the applicant’s assets could not simply come to an end on divorce, at least not without some sense of which assets presently in the joint estate the parties would be allowed to retain, or of the monetary value to which their co-ownership rights should be liquidated. If the applicant married his new partner before that question was settled, he would take an encumbered estate into his new marriage, and the problems for all concerned would likely multiply as time went on.
Is there unanimity in the case law on whether a claim for interim maintenance can survive the dissolution of a marriage?
There is no unanimity on that point in the applicable case law. The NK case, the Gunston case, the Beckley case and the Beinstein case all decided that a claim for interim maintenance cannot survive the dissolution of a marriage. However, the Gillespie case and the TD case said otherwise.
What procedural mechanisms are available to expedite a divorce action where one party is alleged to be delaying proceedings?
There are numerous procedural mechanisms available to hurry a divorce action along. A party’s attendance at a pre-trial conference may be compelled. The divorce action may be set down. A party’s defence and counter-claim may be struck out unless they comply with the various obligations placed on a party in making a case ready for trial.
Why did the court refuse to prejudice the respondent’s right to pursue claims regarding trusts forming part of the joint estate?
The court held that it would not be appropriate to prejudice the respondent’s right to seek that relief by allowing the divorce to go ahead before the assets in the joint estate had been identified and valued, or before a receiver and liquidator had been appointed to do so. It was clear that the applicant was the better-resourced party and able to litigate more extensively. His only real incentive to disclose his true worth was to obtain a decree of divorce. If divorce was granted before the contents and value of the joint estate were known, there was no reason to believe that he would not deploy his litigious firepower to exhaust the respondent’s capacity to ensure adequate post-divorce disclosure.
What was the ultimate finding of the court regarding the separation of issues in this case?
The court found that there were no true advantages to the separation of issues the applicant sought, and a great many foreseeable disadvantages. The issue of the dissolution of the marriage was not meaningfully separable from the issue of the division of the joint estate. The application was accordingly dismissed with costs.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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