Pretoria - A worried wife turned to court for an urgent order interdicting her estranged husband from selling their multimillion rand former matrimonial home.
The husband opposed the application before the Gauteng High Court, Johannesburg. He said the Midrand property belonged to his closed corporation and not to him. Thus, he argued, he could do with it whatever he wanted to.
But the court did not agree with his argument.
It said it was clear that he and his closed corporation were one entity – his alter ego.
The court interdicted the husband and the closed corporation from selling the property.
Acting Judge JL Khan said that if the property had been sold by now, the proceeds had to be paid into a trust account, pending the final divorce.
The wife said she had first got wind of her husband selling their matrimonial home when she saw it advertised on an online property site.
She said while they were married out of community of property, with the application of the accrual system, half of what they had accumulated during their marriage was hers.
She said that while her estate was far smaller than his, she stood to lose out if the property was sold from under her nose.
The parties were married to each other in 2017. Shortly before that, the parties entered into an antenuptial contract, under which the commencement values of their respective estates were set out.
Last year, the wife instituted divorce action against the husband, alleging physical and emotional abuse.
She said they had lived together in the property until November 2019, when she and their child vacated the property.
The divorce between the parties is acrimonious and has not been finalised. The wife has charged the husband criminally and both parties have sought protection orders against each other.
In March this year, she became aware that the husband had advertised the property for sale on Property 24. Counsel for the husband confirmed at the hearing of the matter that the property had not been sold yet.
The wife argued that the husband, in alienating the property before the accrual claim, prejudiced her claim as it depleted the assets before the determinative date of the accrual claim, thereby reducing, if not extinguishing, the difference in accrual between the two estates.
She said the property was a major asset in the marriage and that she had contributed her finances and project management skills in building the house on the property.
The property cost around R12 million to build and was on sale for R11.6m.
The wife submitted that the property was being sold below cost to quickly dispose of it and to dissipate the proceeds of the sale, to her prejudice.
The husband has not set out his financial position or the reason for the sale of the property.
The judge said it was not known whether he would be in a position to pay his wife the difference in the accrual should the property be sold and the proceeds be used by him.
The monetary value of the wife’s estate is recorded at R2.8m and that of the husband R5.3m. The property forms an additional part of their estate.
The husband denied that the wife had any right to the property and said it belonged to his closed corporation, which was selling it.
The wife said that when she saw the advertisement for the sale of the property, she asked her husband for an undertaking that he would not sell it, pending the divorce. He, however, refused.
The judge said it was common cause that the property served as the marital home of the parties until such time as the wife moved out. Even though the property was registered in the name of the closed corporation, there was no indication before court that it was ever used as a business.
In any event, the judge said, the husband was the sole shareholder and sole director of the closed corporation.
The judge said it appeared to the court that at the time when the antenuptial contract was signed, the husband considered the property to be his property and not that belonging to the closed corporation.
“It is only now that the relationship between the parties has soured that the First Respondent (husband) is relying on the legal fiction to exclude the property from the accrual of the parties,” the judge said.
He said the facts pointed in favour of the wife who would be prejudiced if the property was sold and the proceeds squandered.
Pretoria News