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Family and Divorce law in South Africa - A Comprehensive Guide
  • Home
  • Divorce
    • The Reasons for Divorce
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    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
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        • Understanding Post-1984 Marriages
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      • Anti-Dissipation Interdicts Divorce
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      • Changing your matrimonial regime.
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    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
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    • International Divorces in South Africa
    • Expat South African Divorce
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    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
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    • Section 28 of the Children's Act
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      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
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    • The non-custodian parent and contact
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Anti-Dissipation Interdicts in Divorce Proceedings.

The Pivotal Role of Anti-Dissipation Interdicts in Divorce Proceedings.

Anti-Dissipation Interdicts are court orders that prohibit a person from disposing of or concealing assets during divorce proceedings. They are unique legal measures tailored to address specific concerns within a divorce context. Unlike Mareva injunctions, which prevent a defendant from removing assets from a jurisdiction or disposing of them, anti-dissipation interdicts are specifically designed to preserve marital assets during a divorce.

Case Examples of Anti-Dissipation Interdicts
​
Let's look at some examples to understand how anti-dissipation interdicts work in real-life situations.

Example 1: Freezing Property Transfers

In a divorce case, one spouse may attempt to sell or transfer ownership of marital property to a third party or into a trust to avoid equitable division. In such instances, the other spouse can request an anti-dissipation interdict. The court can then grant an order to freeze the property, preventing any transfer until the divorce proceedings are completed, ensuring the assets remain available for equitable distribution.

Example 2: Protecting Business Assets

In scenarios where one spouse owns a significant share in a family business and starts diverting business income to new separate accounts or transferring business assets out of reach, the other spouse can seek an anti-dissipation interdict. This order protects the business assets from being diminished or hidden, ensuring they are properly evaluated and included in the divorce proceedings.

Legal Framework and Principles Governing Anti-Dissipation Interdicts

The remedy provided by an anti-dissipation interdict is not designed to substitute the claim for losses but to enforce the execution of a judgment, ensuring that assets remain available. This principle was highlighted in the case of Carmel Trading Company Ltd v Commissioner for the South African Revenue Services and Others, emphasizing the interdict's role in preventing the execution of a hollow judgment.

Process and Requirements for Obtaining an Anti-Dissipation Interdict

Securing an anti-dissipation interdict requires demonstrating a prima facie right over the assets in question, a well-grounded apprehension of irreparable harm, balance of convenience favoring the granting of the interdict, and the absence of alternative remedies. These requirements closely mirror those for general interim interdicts but are tailored to address the specific context of asset protection in divorce scenarios.

Legal Precedents

Several landmark cases provide clarity and guidance on the application of anti-dissipation interdicts. These cases underscore the principle that an anti-dissipation interdict is not a claim in itself but a means to ensure enforcement of a potential judgment, thus preserving the integrity of the judicial process.

Impact on Divorce Settlements

Anti-dissipation interdicts have a profound impact on divorce settlements, promoting fairness, transparency, and equity in the distribution of marital assets. They ensure that assets cannot be concealed or disposed of, thereby safeguarding the equitable division of marital property.

Ensuring Equitable Asset Distribution

One of the primary impacts of anti-dissipation interdicts is the preservation of marital assets, ensuring that both parties receive a fair share upon divorce.

Deterring Unfair Financial Practices

The mere possibility of an anti-dissipation interdict deters unfair financial practices, leading to more amicable settlements and reducing the need for protracted legal battles.

Legal and Financial Implications

The implementation of anti-dissipation interdicts carries legal and financial implications. For the party seeking the interdict, there is the immediate benefit of protecting their potential share of the assets. However, it also imposes certain responsibilities, such as the need to provide sufficient evidence of the risk of asset dissipation. For the party subject to the interdict, it places constraints on their ability to manage their assets freely, which can have both short-term and long-term financial impacts.

Questions and Answers on Anti-Dissipation Interdicts in Divorce

1. What is an Anti-Dissipation Interdict in the context of divorce? An Anti-Dissipation Interdict is a legal order issued by a court to prevent one spouse from deliberately wasting, hiding, or depleting marital assets during divorce proceedings to ensure that assets remain available for equitable distribution.

2. When can a party request an Anti-Dissipation Interdict during a divorce? A party can request an Anti-Dissipation Interdict when there is credible evidence that the other party is intentionally disposing of, transferring, or concealing marital assets to avoid their fair division upon divorce.

3. How does one prove the need for an Anti-Dissipation Interdict? To prove the need for an Anti-Dissipation Interdict, the requesting party must provide substantial evidence that the other party is acting, or plans to act, in a manner that would significantly reduce the marital estate unjustly.

4. Are Anti-Dissipation Interdicts common in divorce cases? While not common in every divorce case, Anti-Dissipation Interdicts are increasingly utilized in situations where one party has a legitimate concern over the preservation of marital assets.

5. Can Anti-Dissipation Interdicts affect personal property and real estate? Yes, Anti-Dissipation Interdicts can apply to both personal property and real estate, including bank accounts, investments, and physical assets, to prevent their dissipation.

6. What consequences face a spouse who violates an Anti-Dissipation Interdict? Violating an Anti-Dissipation Interdict can lead to legal penalties, including contempt of court charges, fines, or an adjustment in the division of assets to compensate for the dissipated assets.

7. How long does an Anti-Dissipation Interdict last? An Anti-Dissipation Interdict typically lasts until the divorce is finalized and the marital assets are distributed, though the court can specify a different duration based on the case's specifics.

8. Can an Anti-Dissipation Interdict be challenged or appealed? Yes, an Anti-Dissipation Interdict can be challenged or appealed, particularly if new evidence comes to light or if the interdict is deemed to have been granted on insufficient grounds.

9. What's the difference between an Anti-Dissipation Interdict and a Mareva injunction? While both orders aim to prevent asset dissipation, a Mareva injunction is a broader legal tool used in various civil litigation contexts, whereas an Anti-Dissipation Interdict specifically addresses concerns in divorce proceedings.

10. Can an Anti-Dissipation Interdict be issued after a divorce is finalized? No, an Anti-Dissipation Interdict is a preventive measure issued during divorce proceedings. After the divorce is finalized, disputes over asset dissipation would need to be addressed through different legal means or actions.

Conclusion

Anti-Dissipation Interdicts in divorce proceedings serve as a vital tool for protecting assets and ensuring fair settlements. They prevent the unjust dissipation of assets, providing a measure of security and fairness in the challenging process of divorce. As divorce law continues to evolve, the role of anti-dissipation interdicts in ensuring fair settlements remains a vital consideration for legal practitioners and divorcing couples alike.

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​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


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  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities