Man seeks divorce after 15-year separation, tells court he's 'shackled to dead marriage'

TIRED of being 'shackled to a dead marriage' for nearly 15 years, a husband has asked the Johannesburg High Court to grant him a divorce while estate division issues continue to be resolved.

Their divorce has been dragging on due to disagreements over dividing their joint estate

The husband turned to the Gauteng High Court, Johannesburg, to ask for an immediate divorce order.

He argued that the issues about dividing the estate could be resolved later.

However, Judge Stuart Wilson did not agree. He stated that in a divorce action, separating the prayer for the dissolution of a marriage in community of property from the question of the division of the joint estate WAS  neither conceptually possible nor practically advantageous.

He commented that a marriage in community of property is not merely a union of souls; it is a mingling of estates.

At the point of marriage, each spouse’s assets become part of one larger estate, with each owning an undivided half-share in almost everything that once belonged exclusively to the other.

The judge noted that a marriage in community of property is a particularly intimate union, which may only be dissolved with difficulty, depending on the value and complexity of the joint estate.

The parties were married in community of property in 1989 and lived together for 22 years before separating in 2011. The husband only sued for divorce in 2022.

The wife admitted that the marriage had irretrievably broken down, largely due to her husband’s “various extra-marital affairs”.

She claimed R150,000 a month in maintenance and sought the appointment of a receiver and liquidator to divide the joint estate, claims which the husband opposed.

The wife alleged that the husband did not disclose all the assets to which she is entitled, causing the divorce to stall. The husband has lived with his current domestic partner since 2011, and they have two children.

He stated that it is now time to marry his partner and argued that both he and his wife agreed to the divorce, with no reason for it not to be granted unopposed, postponing maintenance and estate division for later.

Judge Wilson remarked that convenience is the overriding consideration in any application to separate issues arising in a trial action. Counsel for the husband, meanwhile, referred the court to cases where parties divorced and resolved other issues later.

However, Judge Wilson pointed out that those cases involved marriages out of community of property, meaning a decree of divorce could be granted without impacting either party’s estate.

In cases where the matrimonial property regime was subject to an accrual claim, that claim was separable from the claim for divorce.

Marriages in community of property are different, as there is only one estate involved. Once married, each party owns an undivided share in that estate by operation of law.

Judge Wilson made it clear that under this marriage regime, the fusion of the parties’ estates is conceptually inseparable from the marriage itself. As things stand, each party owns half of one undivided estate, and their claim is neither personal nor exclusively monetary in nature.

The husband expressed concern that the wife is dragging her feet in the divorce proceedings, foreseeing lengthy litigation over the division of the joint estate. While there may be sympathy for his position, Judge Wilson stated that it is not possible to separate the issues under the marriage regime of community of property.

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