You’re going through a tough time with your divorce, and it can get even more complicated when your soon-to-be ex moves on before things are final. A big issue that comes up is when one person starts giving away money or things they accumulated during the marriage to their new partner.
Here’s the deal: the law says they can’t do that. If you were married in community of property, it means everything you both owned during the marriage has to be split equally, 50/50, when the marriage ends. This includes things like property, money in savings accounts, or anything else that was bought or accumulated while you were married.
The Divorce Act is clear on this. When a court looks at how to divide your assets, it considers a lot of things. This includes any contributions you made to the other person’s estate, any gifts given during the marriage (even if they were part of an antenuptial contract), and anything else that affects your financial situation as a couple. Generally, unless one person specifically agrees to relinquish their share, the 50/50 split is the standard.
A common problem in divorces is that when one person starts a new relationship while the divorce is still ongoing, it can really slow things down. The other person often feels hurt or angry, and it becomes much harder to agree on anything, making the divorce proceedings drag on for years.
If you find yourself in this situation, where your husband or wife is giving away marital assets to their new partner, you do have options. You can apply for an interdict. This is a legal order from the court that would stop your soon-to-be ex from giving away any more money or assets that belong to the marriage until the divorce is finalised. It can even force them to get back anything they’ve already given away.
Ultimately, a court will only grant a divorce if you both agree there’s a good reason the marriage can’t continue, or if you’ve been living separate lives for over a year, or if one of you simply can’t imagine being with the other anymore.
Section 7(5)(a)-(d) of the Divorce Act states that the court shall, apart from any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other, also take into account:
- existing means and obligations that a husband has to marriage;
- any donation made by one party to the other during the subsistence of the marriage or owing and enforceable in terms of the antenuptial contract;
- any order which the court grants under section 9 of this Act or under any law which affects the patrimonial positions of the parties; and
- any other factor which should, in the opinion of the court, be taken into account.
This means that each person must get 50% of all possessions that were bought, such as property or money that is kept in a savings account, unless such party waives such right.
The issue a lot of people face whilst going through divorce proceedings is that their soon-to-be-divorced husband or wife ends up moving on while the divorce proceedings are still ongoing. This results in most divorce proceedings dragging on for years as the opposite party is aggravated in this regard, and no consensus can be reached as a result of the conflict between the parties.
The recourse the aggrieved wife may seek is to complete an Interdict application to prevent their soon-to-be-divorced husband from the distribution of any monies or assets that subsist in the marriage until it is finalised. The interdict will serve a restitutionary function in compelling the husband to retrieve all possessions given to his new partner/ girlfriend.
A court will only grant a decree of divorce if there is consensus between the parties of reasonable cause for the irretrievability of the marriage; if the parties have started living separate lives for over a year; and if one party finds it irreconcilable to be with the other party.
Going through a divorce can be incredibly stressful. If you’re concerned about your marital assets, seeking legal advice is always a good idea. If you require any assistance, please feel free to contact our offices for assistance.
Shervona Tia Marshall
Associate
shervona@bbplaw.attorney
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