South Africa : Judge Denies Husband’s Push for Immediate Divorce
The South Gauteng High Court in Johannesburg has dismissed a husband’s application for an immediate divorce before finalising the division of his and his wife’s joint estate, ruling that a marriage in community of property cannot be dissolved independently of its financial consequences.
The applicant, identified as TSY, approached the court seeking to separate the issues in his long-standing divorce case against his wife, LEY. The couple, who married in 1989 under a community of property regime, separated in 2011 but remain legally bound as disputes over maintenance and asset division have delayed proceedings since 2024.
In her counterclaim, LEY demanded monthly maintenance of R150,000, to be adjusted annually, and requested the appointment of a receiver and liquidator to manage the distribution of their shared assets. TSY opposed both requests, insisting that LEY was not entitled to maintenance and that the divorce decree should be granted immediately, with all financial disputes addressed later.
He argued that he wished to remarry and move forward with his life, having lived with a new partner since 2011 and fathered two children with her. However, Judge Stuart David James Wilson rejected his plea, stating that the dissolution of a marriage in community of property is inherently intertwined with the division of the joint estate.
“In such marriages, each spouse owns an undivided half-share of the joint estate by operation of law. There is no meaningful sense in which that estate can survive a decree of divorce,” Judge Wilson said.
The court found that earlier cases cited by TSY were not comparable, as those involved marriages out of community of property or under accrual systems—where financial claims can be handled separately. In this case, LEY’s claim involved ownership rights, not just monetary compensation.
Judge Wilson further ruled that granting a divorce before resolving the estate division would not only be conceptually flawed but could also prejudice LEY. He noted ongoing disputes about trusts allegedly controlled by TSY, which may form part of the joint assets, and warned that an early divorce could weaken LEY’s ability to claim financial relief or reveal hidden assets.
While acknowledging the husband’s frustration with delays, the judge highlighted existing legal measures to expedite proceedings, such as pre-trial conferences and striking out non-compliant filings.
Ultimately, the court held that neither fairness nor convenience justified TSY’s request. “The fusion of the parties’ estates is inseparable from the marriage itself,” Judge Wilson concluded, dismissing the application and keeping the divorce proceedings ongoing until the division of assets is resolved.