Gauteng High Court, Johannesburg Judge Adrian Friedman has redefined how married couples must disclose assets during divorce proceedings.
Judge Friedman further addressed the complexities surrounding Section 7 of the Matrimonial Property Act of 1984 amidst ongoing divorce proceedings between two prominent figures.
On 28 January 2025, the judge delivered a judgment that may set precedent in determining how financial disclosures should be managed in cases involving the accrual system of matrimonial property. The accrual system, introduced to provide a fair distribution of assets acquired during marriage, allows each spouse to maintain separate estates while ensuring equitable sharing of wealth accumulated during the marriage. The contested aspect revolves around when it is "necessary" for a spouse to divulge full particulars of their estate upon request during divorce proceedings, a point that has historically been fraught with ambiguity even against the backdrop of evolving divorce laws.
Judge Friedman noted, "Despite the longevity of this provision, there is no clear answer to the question of the scope of the discretion vested in courts… to decline to order compliance." Traditionally, in marriages concluded out of community of property that employ the accrual system, each spouse's estate remains separate, but the law stipulates that upon dissolution, through death or divorce, each party can make claims based on the difference in accrual. The obligation to disclose, as outlined in Section 7, arises when it is deemed necessary to assess these claims.
During proceedings, the applicant sought to enforce this section by compelling the respondent to provide comprehensive financial particulars, asserting that the request was inherently timely as divorce proceedings were active. The respondent argued that it was premature to furnish such details while critical preliminary disputes were still pending resolution, prompting considerations about the timing and appropriateness of disclosure.
The court concluded that while there is a legislative expectation for disclosure under Section 7, judges hold a discretion in determining when such compliance is appropriate. Judge Friedman stated, "As long as a judge considered that it was objectively necessary for a spouse to comply with Section 7… the jurisdictional requirement of the provision would be triggered."
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