High Court rules against woman seeking husband's share after selling Stellenbosch home amid divorce

The Cape Town High Court dismissed a woman's application to access her estranged husband's share following a sale on their matrimonial home.

The estranged couple, married for nearly a decade, have been embroiled in legal battles since the divorce proceedings commenced in August 2024.

They got married in November 2015 at Bogota, Republic of Colombia, and share a nine-year-old son born in 2016.

The husband suffered a stroke when he was 23, and it severely impacted his day-to-day functioning and left him medically unfit to work a normal job.

As a result, his parents, who own a fruit export business in Colombia, financially supported him for over 20 years and later extended the financial support to his wife and child.

The wife received a monthly allowance of R90,000 which she used for her personal expenses as well as supporting their child.

The mother-in-law assisted the couple to buy their matrimonial home in Stellenbosch. However, in June 2023, the relationship began to deteriorate, which led the husband to leave their home in May 2024.

Following the separation, they decided to sell their home and agreed to share the proceeds of the sale equally.

In August 2024, whilst the matrimonial home was on the market for sale, the husband instituted divorce proceedings, which have not been finalised.

He offered to pay R5,000 towards child maintenance and made no offer towards his wife.

The house was eventually sold, and Cluver Markotter was appointed as the transferring attorneys and money was paid into their account.

The wife filed an application to have her husband's portion as she sought spousal maintenance and an increased amount for child maintenance.

She said she feared that her husband might deplete the funds, which would hinder her ability to claim maintenance or patrimonial support. She stated that her income was inadequate to cover their child's expenses, particularly given his attendance at a costly private school.

She further added that the husband had intentions to leave South Africa and not return, as he had no other property or assets in the country, no South African bank account, and no right to reside in South Africa.

In his reply, the court heard that the husband's family business in Colombia was undergoing liquidation due to severe economic difficulties caused by the COVID-19 pandemic.

After leaving the marital home, his parents covered the cost of his new rental accommodation. They also continued to provide his wife with a monthly allowance, though this amount was reduced to R10,000–R15,000.

He continued to pay for his son's school fees from funds he received from his family and said he had no intentions to abandon his obligations as a parent.

He said his wife earns a monthly R36,000 but was not to be willing to contribute towards the maintenance of their child.

In addition, he said his family bought a Mercedes Benz which was registered in the wife's name, and she sold it for R218,000 and kept all the money to herself.

He explained that he did not voluntarily leave the matrimonial home, he said he was barred from entry by his wife and her father threatened with a firearm. He was subsequently compelled to find alternative accommodation.

Looking at the matter, acting judge Njokweni said from the wife's recent affidavit, it showed that the husband had already left South Africa for his home country. It was said despite marrying a Columbian, the wife had not assisted him to obtain a visa allowing him to stay in South Africa hence he was forced to leave.

"This too is not a circumstance that would allow the applicant (wife) to hold on to the proceeds of the sale pending a divorce. Not all divorces instituted in South African courts are exclusively between parties who both live in South Africa," said judge Njokweni.

The judge also found that the wife was abusing the court process by using the anti-dissipation interdict to go back on a mutual agreement she had with her husband in selling the home and dividng the proceeds equally.

Additionally, the wife was accused of harming the husband by selling the Mercedes Benz and keeping all the proceeds, rather than sharing them as mandated in a joint estate.

The judge criticised the application, stating that it was not focused on the minor child's best interests. Instead, the wife used it as a means to spite and coerce the husband into relinquishing his 50% share of the sale proceeds.

"Accordingly, I could not and did not find exceptional circumstances that would justify relaxing the intention requirement for the type of relief sought in this application."

The application was dismissed.

sinenhlanhla.masilela@iol.co.za

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