The South Gauteng High Court in Johannesburg has refused an application by a husband seeking an immediate divorce without first resolving the division of a substantial joint estate, holding that a marriage in community of property cannot be dissolved independently of its proprietary consequences.

The applicant, identified in court papers as TSY, approached the court asking for a separation of issues in his long-running divorce from his wife, LEY.

The couple married in 1989 in community of property and share a single joint estate. Although they separated in 2011 and both agree that the marriage has irretrievably broken down, disputes over maintenance and the division of assets have stalled the proceedings since 2024.

LEY counter-claimed for maintenance to the tune of R150,000 every month, which was to be index-linked and adjusted accordingly each year. She also sought the appointment of a receiver and liquidator to divide the joint estate. TSY denied that LEY was entitled to any maintenance and opposed the appointment of a receiver and liquidator.

TSY argued that the court should grant an unopposed decree of divorce immediately and postpone disputes over maintenance and the division of the joint estate to a later stage. He told the court that he has lived with a new partner since 2011, has two children with her, and wishes to remarry without being “shackled to a dead marriage”.

However, Judge Stuart David James Wilson rejected the request, finding that the dissolution of a marriage in community of property is conceptually inseparable from the division of the joint estate. Unlike marriages out of community of property, Wilson said, there are not two estates to disentangle but a single undivided estate jointly owned by both spouses.

“In a marriage in community of property, each party owns an undivided half-share in the joint estate by operation of law,” the judge held. “There is no meaningful sense in which that estate can survive a decree of divorce.”

The court distinguished earlier cases relied on by TSY, noting that they involved marriages out of community of property or accrual systems, where financial claims could be postponed because they amounted to personal monetary claims rather than co-ownership of assets. In contrast, LEY’s claim was to ownership of half of nearly all the assets in the joint estate.

Judge Wilson also rejected the argument that a divorce could simply establish a “strike date” for valuing the estate, finding that such an approach does not address the fundamental issue of dividing joint ownership.

Beyond conceptual concerns, the court found that separating the divorce from the proprietary issues would be inconvenient and potentially prejudicial—particularly to LEY. The judge noted that there is legal uncertainty about whether a spouse can still claim interim maintenance after a divorce decree has been granted and warned that granting a divorce first could undermine LEY’s ability to secure financial relief.

The court further expressed concern about unresolved disputes over trusts allegedly controlled by TSY, which LEY claims may form part of the joint estate. Granting a divorce before those assets are identified and valued, the court said, could weaken LEY’s position and incentivise non-disclosure.

While acknowledging TSY’s frustration with delays, the judge emphasised that procedural mechanisms exist to compel progress in the divorce action, including pre-trial conferences and striking out non-compliant pleadings.

Ultimately, the court concluded that neither convenience nor fairness justified the separation sought by TSY.

“The fusion of the parties’ estates is inseparable from the marriage itself,” judge Wilson held, dismissing the application and leaving the divorce proceedings to continue with the division of the joint estate unresolved.

sinenhlanhla.masilela@iol.co.za

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