- The High Court set aside a previous ruling and let the husband sell the couple’s joint property without the wife’s consent, stating her refusal was unreasonable.
- The court explained that the common law remedy of actio communi dividundo does not apply to property held in a community of property. The right legal path is through the Matrimonial Property Act.
- Any leftover sale proceeds, after covering debts and costs, will be held in trust until the joint estate is divided during the divorce.
The Western Cape High Court has overturned a decision that stopped the husband from selling the family home in Rusthof, Strand, after deciding that the wife’s refusal was no longer reasonable.
The court determined that the issue fell under section 16(1) of the Matrimonial Property Act, which allows a court to permit the sale of property when one spouse unreasonably withholds consent.
The couple, married in community of property, fell behind on their mortgage in 2021, which led to legal actions and the property being declared executable. The wife left the home with their daughter while the husband began divorce proceedings. The property had an outstanding mortgage and accumulating legal fees, causing ABSA Bank to pursue recovery through a sale in execution.
After the property did not sell for a good price at auction, the husband received a private offer of R990 000. He requested his wife’s written consent, as mandated by the Matrimonial Property Act, but she refused. She cited her desire to look for alternative payment options with the bank and to keep a home for their daughter. However, she did not provide any proof that she could settle the arrears or find other housing.
The husband argued her refusal was unreasonable and harmful to the joint estate. He explained that a private sale would eliminate the debt, prevent a financial loss, and help both sides.
The court’s reasoning on legal principles
Acting Judge A Bhoopchand, with Judge M Sher and Judge N Mangcu-Lockwood agreeing, explained the difference between free and constrained co-ownership. “When people are married in community of property, they do not hold property as co-owners in the usual sense. They share a joint estate, which is managed jointly or by one spouse with consent,” the judge said. The court stressed that the common law actio communi dividundo does not apply in these situations.
The court found that section 16(1) of the Matrimonial Property Act allows a spouse to ask the court for permission to sell property without the other’s consent if refusing consent is unreasonable. The judge noted, “All the husband needed to show was that the wife’s denial of consent was unreasonable and that there was a good reason to overlook it.”
Flaws in the lower court's approach
The court concluded that the lower court made mistakes by giving too much weight to the wife’s unproven claims and by putting the burden of proof on the husband. “The wife did not address the husband’s claims point by point. Instead, she focused on her viewpoint without referring to the founding affidavit. She denied that her husband had asked or obtained her consent for the proposed private sale of the property. However, the correspondence linked to the founding affidavit and her response showed her denial was incorrect,” Judge Bhoopchand pointed out.
The judge also noted that the wife did not provide evidence of her income or ability to repay the loan. Her arguments about reactivating the loan agreement were also legally flawed, as this would have required the husband’s written consent.
Order and consequences
The appellate court allowed the husband to sell the property without the wife’s consent, ordering her to sign all necessary documents and giving the Sheriff the power to do so if she did not cooperate. The court ruled that the costs of the application and appeal would come from the sale proceeds, and any remaining funds would be held in trust until the joint estate is divided in the divorce.
The court concluded, “The case presented by the husband was overwhelmingly persuasive, leading the Court to determine that an order should be made allowing the private sale of the property without the wife’s consent. Therefore, the appeal is upheld.”
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