For STBB’s divorce attorneys, handling complex divorce matters with care and expertise is paramount – a requirement highlighted by a recent Western Cape High Court matter involving an attempt to interdict a Colombian national from using his proceeds from the sale of an upmarket matrimonial home, pending the finalisation of divorce proceedings.
In T.S v J.V.C.P, a South African woman (‘the Applicant’) applied for an interim anti-dissipation interdict to prevent her soon-to-be ex-husband (‘the First Respondent’) from disposing of his 50% share of the proceeds from the sale of their jointly owned matrimonial home in an upmarket Stellenbosch residential estate. Wed in Colombia in 2015, and after welcoming a son in 2016, the couple’s marriage disintegrated in 2023 and the property was sold pursuant to a mutual agreement between the parties amid pending divorce proceedings. Currently, the funds are held in trust by a third party.
The Applicant argued that absent the interdict, she would be unable to enforce her counterclaims in divorce proceedings, namely claims for spousal and child maintenance. In support of this contention, she alleged that the First Respondent has no assets in South Africa, is supported by his parents, who run a fruit export business in Colombia, lacks the legal right to reside in the country, and intends to relocate to Colombia permanently. As such, executing any future judgment will prove difficult. Accordingly, the Applicant sought to retain the sale proceeds in trust pending the finalisation of the divorce.
Under South African law, an anti-dissipation interdict precludes a party from moving assets, with the intention of defeating a creditor’s claim. To succeed, the Applicant was required to demonstrate a prima facie right (that is a valid underlying claim), a well-grounded apprehension that the First Respondent would imminently dissipate the proceeds, that the disposal was aimed at abdicating his maintenance obligations, and the Applicant had no adequate alternative remedy.
Evaluating the evidence, the court firmly rejected the Applicant’s bid for an interdict. It found no objective proof that her soon-to-be ex-spouse intended to hide or dissipate assets to defeat her claim. Further, the Applicant failed to demonstrate a prima facie right, any real apprehension of harm, or that the balance of convenience favoured her. Contrastingly, the evidence indicated that the Applicant had herself sold a joint asset – a Mercedes Benz vehicle – and kept the proceeds. Worse still, the court viewed the application as a devious attempt to avoid a prior written agreement to share the proceeds from the sale of the matrimonial home. Critical of the Applicant’s motive, the court characterised the application as a mala fide abuse of process, aimed at coercing the First Respondent to relinquish his share of the proceeds.
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