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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2018-08-24

Divorce: Appointing A Liquidator To Assess Value Of Estates

Apart from the burning issue during a divorce which normally revolves around the children, such as which parent the children get to live with and how much maintenance is to be paid, the other hotly contested issue during most divorces is around the issue of what assets of the divorcing couple own and how it is top be distributed, upon divorce.

Couples who are married in community of property are considered to having a joint estate. This means that all their assets, regardless of which spouse acquired it, or even in whose name it is in, forms part of the joint estate of both of them.

If they were married by ante-nuptial contract with the accrual system, then on dissolution of the marriage, the parties would need to establish the value of the assets of both of them in order to work out whose estate has grown more.

The spouse whose estate has grown the least would have a claim of accrual against the other spouse (whose estate has grown much bigger). In terms of the Divorce Act 70 of 1979, couples that are married in community of property are encouraged to divide their joint estate by agreement.

The settlement agreement will be made an order of the court when the decree of divorce is granted. Where a divorce goes to full-blown trial, the presiding judge would normally make a ruling around the division of the assets.

Sometimes the only remaining unresolved matter in a defended divorce is around determining the value of the assets of the parties and thereafter how to divide those assets between the couple. If the parties elect not to take pursue that issue to trial but still need outside intervention to deal with that impasse, either of them can approach the court for permission to have a receiver or liquidator to be appointed. This appointment can even be done after the parties have divorced.

The liquidator will then investigate the assets of the disputing parties and divide their assets. The court itself does have the power to order the division of an accrual estate. If the court is satisfied that a spouse's right to share in the accrual would be seriously prejudiced because of the conduct of the other spouse, it can order the immediate division of the accrual of assets.

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