A Limpopo woman successfully persuaded the high court that she had the right to claim a share from a property given to her husband before their marriage.
The couple, who were married in community of property, argued their divorce settlement in the Limpopo High Court in Polokwane.
The couple met in 1998 and married in 2003. At the time, the husband was running a business with his father. Before the father’s passing in 1999, he had bought a stand for him.
In 2016, the husband sold the property and asked his wife to sign documents related to the sale. He then invested the proceeds under his name at FNB for a fixed period of five years.
The wife only discovered during their divorce that the husband had already withdrawn the proceeds from the sale of the property and had not informed her.
The value of her undivided share in the joint estate was diminished by over R2.2 million.
Aggrieved by the husband’s actions, she asked the court to make an order for an adjustment in her favour upon the division of the joint estate.
In his defence, the husband admitted that he withdrew over R3.8 million after the date of divorce. However, he used the funds to support his struggling business.
He argued that the withdrawal and utilisation of the funds does not concern the wife as it was a gift from his father to him.
He further added that the wife suffered no loss as the investment was not part of the joint estate.
He admitted that his father did not leave a will, no executor was appointed, and no formal process was followed. He said the donation of the property was done orally and it was part of their culture.
Acting Judge Marianne Bresler was not convinced by the husband's submissions, as there was no evidence supporting his claim that the donation was given on the condition that it would not form part of the joint estate.
Judge Bresler said due to the invalidity of the alleged donation agreement, it can be concluded that the donation formed part of the joint estate and the proceeds of the sale thereof, can’t be excluded.
“The plaintiff (wife) must therefore succeed in her claim for adjustment of her portion of the undivided joint estate,” said the judge.
The judge ruled that the wife is entitled to an adjustment of over R2.2 million in her share of the joint estate.
The husband was also ordered to pay the wife R12,000 rehabilitative maintenance for 18 months.
sinenhlanhla.masilela@iol.co.za
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