November 8, 2016

Divorced without a settlement agreement and can’t agree on division of the joint estate?

Sabina Chivasa

The most common cause of conflicts during a marriage and leading up to divorce revolve around financial matters. For those couples that couldn’t be bothered or didn’t want to put a damper on the prospect of ‘everlasting marital bliss’ by entering into a prenuptial agreement before the marriage, things can get quite nasty – especially in cases where one or both of the spouses have accumulated considerable wealth.

In situations where the couple was married in community of property, the court, when granting a decree of divorce, will leave the distribution of the joint estate to the individuals in the absence of a settlement agreement. This can lead to further frustration, futile back and forths, and endless pettiness from both parties as, usually, in such circumstances, neither party is willing to compromise and ‘play ball’. This delays finality and closure to what is undoubtedly an already stressful and life changing event. However, for those who find themselves in this situation, do not despair! The law does provide some relief.

The divorcees may not be able to agree on the splitting up of assets and money but they can usually agree on the appointment of an impartial person to divide their joint estate. In situations where they cannot even agree on this aspect and are unable to appoint a liquidator themselves, either of the parties can approach the courts with an application for the appointment of a liquidator to whom the ultimate responsibility of the division of the joint estate will fall.

In the precedent setting case of Revill v Revill, the Honourable Judge said the following in light of the argument raised by the husband’s counsel that there is no authority to appoint a liquidator/receiver unless there is dispute between the parties merely on the grounds that the party applying suspects that he or she may not get a fair division unless a receiver is appointed:

“In my opinion that is not the true position. The true position is that no man can be a judge in his own cause. In other words, neither party can take upon himself or herself the right to divide the joint estate. In fact, no party in any form of community is entitled to divide the common property and the other party be forced to accept that position. Once either of the parties has no faith in the bona fides of the other party, he is entitled to demand the appointment of a receiver.”

The Honourable Judge went further to site the judgment handed down in the case of Gillingham v Gillingham:

“What the CHIEF JUSTICE says is: if the parties are agreed upon the division and they agree that the husband shall do it, then, of course, the husband will make the division, but if they are not agreed that the husband shall make the division then somebody upon whom the parties are agreed must undertake that division and failing such agreement the division must be made by a person appointed by the Court. This is so because no man can be a judge in his own cause, no man can force his decision in regard to the division upon another.”

The two extracts sited above make the position of the courts clear on this point. Where a division is to be made, it must be made by an impartial person appointed by the Court when the parties cannot agree between themselves as to the division or the person who is to make such division.

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