Receivers and liquidators to divide joint estate
When parties are married in community of property there is usually a fifty/fifty division of the assets (this isn't always the case; recently I acted for the man in a trial in the Cape Regional Court, him and his wife were married in community of property but the end result was his wife only being awarded 15% of his pension and no equity in the house, with the court allowing forfeiture due to her gross misconduct and failure to contribute).
Disagreement on how to divide the joint estate
What happens when a court awards an equal division of the assets and the parties are unable to decide on how the assets are to be divided? The court has the general power to then nominate someone to collect, realise and divide the estate. Such a person is called a liquidator, receiver or curator.
Court discretion to appoint liquidator
In Robson v Theron 1978(1) SA 841(A) the court found that a court has the discretion in making a division of the joint estate, having regard to the particular circumstances and what is most advantageous to the co-owners and what they prefer. A court is however not obliged to appoint a liquidator upon dissolution of a partnership. A court has a discretion to appoint a liquidator.
Size matters
The courts also look at the size of the estate in deciding whether a liquidator should be appointed. In Schoeman v Rokely Farming Co (Pty)Ltd the court found that there was no practical purpose for the appointment of a liquidator. There were no difficulty with regard to capital contributions and the partnership was of a very restricted nature.
Application for the appointment of a liquidator
When the parties to a divorce cannot agree on a division of the assets, the spouse bringing the application for the appointment of a receiver or liquidator is exercising his or her right to apply for this. There has to be a good reason shown by the court as to why the appointment should not be allowed.
Marriage as a commercial partnership
Marriages are seen by the courts sometimes to be similar to commercial partnerships. I had a case where the parties, married in community of property, owned four houses together. Two were bonded and the other two paid off. They couldn't agree as to whether the houses should be sold or whether one party would buy the share of the other party. They furthermore couldn't agree on the value of the house. The only solution in this case, as agreed between the parties, was for a receiver to be appointed. The courts often apply to divorces the principles applicable to the appointment of receivers and liquidators to divide assets of commercial partnerships.
Agreement is first prize
Section 7(1) of the Divorce Act encourages parties to divide the joint estate by agreement. A court granting the divorce may with a written agreement between the parties make an order with regard to division of the assets. Parties should be encouraged to settle a divorce amicably. One of the ways of getting all the facts down; is by using a spreadsheet to apply accrual principles to the value of the joint estate.
Liquidator paid from proceeds of joint estate
The appointed receiver or liquidator however pays himself from the proceeds of the joint estate, and such an appointment is a burden to the joint estate, because, through the appointment, the value of the joint estate is reduced. However when it is necessary, it is necessary and the appointment of a receiver and liquidator should be seen as a right to a party when circumstances allow for the appointment.
Family, Estate & notarial legal services
Ending an ANC with Accrual marriage
Free Antenuptial contract with accrual spreadsheet template for the division of the joint estate.
- Division of the joint estate for ANC with accrual divorce.
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- The duty to disclose your financials when divorcing:
- Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act) .
- Divorce full disclosure clause
- Example of ANC with accrual marriage contract.
- Property
- Donation of property agreement not followed through.
- When property is erroneously in your spouse's name.
- Conveyancers conduct the transfer of property ownership from one spouse to another (or to a third party, if relevant).
- Divorce settlement clauses
- Enforceability of antenuptial contract overseas
- Amending an antenuptial contract
- Postnuptial contract - for when you're already married and realise you should have entered into an antenuptial contract, or you want to amend an existing agreement.
- Marriage
ANC with Accrual discussion forum
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