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 incorporate such an agreement into the decree of Divorce explicitly dealing with the division of the estate. 

 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.

Some of the functions of the receiver or liquidator would include the following:-

·         Demand that both parties to provide a true and proper account of all their assets;

·         To value all assets of the spouses both movable and immovable- (with the exception   of their personal belongings);

·         To establish the true liabilities in the estate of the spouses;

·         To interrogate the parties as may be necessary;

·         Have access to any premises for purposes of valuating assets.

The appointment of the receiver or liquidator can even be done after the parties have divorced. The liquidator will then be allowed to investigate the assets of the disputing parties and divide their assets.

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-spouse. 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 cost effective to come to an agreement then the alternative of appointing a liquidator.

For direct answers to your specific personal questions, please contact us directly.

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Author – Jessica Gooding

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