TRANSFER OF PROPERTY
EFFECT OF SEQUESTRATION – MARRIED IN COMMUNITY OF PROPERTY
It often occurs in practice that immovable property is registered in the names of spouses married in community of property to one another, who have subsequent to the registration of the immovable property got divorced, and thereafter one of the spouses was declared insolvent. The question begging an answer is who is entitled to deal with such immovable property; the person entitled to such property in terms of the divorce agreement; or the trustee appointed in the insolvent estate of the former spouse?
In the judgment of Corporate Liquidators (Pty) Ltd v M A Wiggill 2007 (2) SA 520 T the facts of the case were briefly the following:
Mr. and Mrs. Wiggill were married in community of property and were divorced on 27 March 1998. The settlement agreement provided that certain of the immovable property be divided between Mr. and Mrs. Wiggill, so as to enable each to receive a defined portion of the property.
Subsequent to the divorce Mr. Wiggill remarried Mrs. E H Wiggill in community of property.
On 20 March 2002 the estate of Mr. Wiggill and his new spouse Mrs. E H Wiggill was finally sequestrated.
When Mrs. Wiggill approached the trustees in the insolvent estate of Mr. Wiggill and Mrs. E H Wiggill to give effect to the divorce agreement and pass transfer of the defined portion of the land into her name, they refused and contended that the immovable property awarded to Mrs. Wiggill fell into the insolvent estate.
The application of Mrs. Wiggill was successful, however, the trustees were afforded the right of appeal to a full bench of the TPA.
On appeal it was held that on divorce of a marriage in community of property, the result would be that the bound common ownership of the spouses which existed by virtue of the marriage in community of property is converted into free co-ownership. Although each of the former spouses still remain owners of an undivided half share in the property, such shares are not bound to one another in terms of the joint estate.
With acknowledgement to Allen West, Deeds Office Training, Pretoria.
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