The High Court in Johannesburg has refused an application to finalise a divorce while postponing disputes over the division of a joint estate, holding that the legal nature of a marriage in community of property makes such a separation impossible.
In a judgment delivered on 26 January, Judge Stuart Wilson dismissed an application by a husband who sought a decree of divorce while leaving issues relating to maintenance and the division of the joint estate for later determination.
The parties married in community of property in 1989 and separated in 2011. Although both accepted that the marriage had irretrievably broken down, the divorce proceedings stalled amid disputes over the contents and value of the joint estate, including whether certain trusts associated with the husband should be included.
The husband applied for a separation of issues, arguing that the dissolution of the marriage could be dealt with independently because it was uncontested. His counsel submitted that the courts have previously allowed divorces to proceed while postponing financial disputes, and there was no reason the same approach could not be followed here.
At the heart of the judgment, however, was whether the issues the husband sought to separate were legally capable of separation.
Judge Wilson said convenience is the overriding consideration in applications to separate issues, but only once it has been shown that the issues are conceptually distinct. If they are not, the inquiry ends there.
In addressing that threshold question, the judge asked whether a marriage in community of property is, “legally speaking, conceptually separate from the union of estates it embodies”.
Counsel for the husband argued it was, relying on a number of cases in which the courts have separated the granting of a decree of divorce from disputes about maintenance or the division of assets. Those cases, she submitted, demonstrated that a marriage could be dissolved even if financial issues remained unresolved.
The Court found those authorities did not assist the husband because they dealt with marriages out of community of property.
In such marriages, Judge Wilson explained, the spouses’ estates remain separate throughout the marriage. A decree of divorce can therefore be granted “without any direct impact on either party’s estate”, because each spouse simply retains the assets they own at the time of divorce. Even where accrual applies, the claim that arises is “no more than a personal right to payment of half the difference” between the growth of the respective estates.
A marriage in community of property, the Court held, is fundamentally different. “A marriage in community of property is not merely a union of souls; it is 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”.
That ownership arises “because, and only because, the parties are married in community of property”. For that reason, Judge Wilson said, “there is accordingly no meaningful sense in which the joint matrimonial estate can survive a decree of divorce”.
The judge rejected the argument that a decree of divorce could simply establish a reference date – or “strike date” – by which the value of the joint estate could later be calculated. That approach, he said, confused community of property with accrual.
In accrual cases, the outstanding issue is a personal monetary claim. In a marriage in community of property, however, “the problem is not merely the valuation of the estate, but the division of the parties’ joint ownership of it”. Each spouse’s claim is “to ownership of half of nearly everything the other has”.
Judge Wilson accepted that a court may appoint a receiver and liquidator to divide a joint estate, but emphasised this was not what the husband sought. He wanted a divorce “without anything at all being said about the dissolution of the joint estate”. That, the judge said, was “inconceivable”.
Because the fusion of the parties’ estates is inseparable from the marriage itself, the Court concluded that the dissolution of the marriage could not be separated from the division of the joint estate. On that basis alone, the application failed.
The Court then considered whether the separation sought would, in any event, be convenient. Judge Wilson found it would not, pointing to unresolved disputes about trust assets, uncertainty in the case law concerning interim maintenance after divorce, and the risk of prejudice to the less well-resourced spouse.
Although acknowledging the frustration that can accompany prolonged divorce litigation, the Court held that delay did not justify separating issues that were not legally distinct. Procedural mechanisms existed to move the matter forward, and these had not yet been exhausted.
The application was dismissed with costs.
