A threatened asset sale during divorce deserves attention, but it does not automatically entitle the other spouse to freeze the proceeds. An anti-dissipation application ordinarily requires evidence that assets are being, or are likely to be, dealt with to frustrate a claim. Suspicion and the existence of an accrual claim alone are not a substitute for that evidence.
Hugh Raichlin Attorneys assists clients with divorce and property disputes in Johannesburg. The first assessment should identify the underlying claim, the asset, the proposed transaction, the evidence available and the time remaining before anything happens.
Why the purpose of a transaction matters
Selling a property to pay genuine debts is not necessarily the same as moving value out of reach to defeat a spouse’s claim. The explanation, surrounding conduct and supporting records matter. A court needs a legal and factual basis for interfering with a person’s assets.
The original newsletter discussed an accrual dispute in which the Supreme Court of Appeal set aside an anti-dissipation order because the required intention had not been established. The useful lesson is the evidential distinction - not that every sale is protected or that preservation relief is never available in divorce.
Turn a concern into an organised evidence record
- Identify the asset precisely: property description, account, shareholding or other interest.
- Record what is proposed, by whom and when it is expected to happen.
- State the legal claim you believe the transaction threatens, including existing divorce orders or agreements.
- Separate what you know from what you suspect and retain the documents supporting each fact.
- Explain why the proposed conduct may frustrate the claim, rather than merely change the form of an asset.
Useful material may include correspondence, a sale notification, a deed or company record, existing pleadings and a chronology of material transfers. Only use information obtained lawfully. Do not take passwords, impersonate the other spouse, empty accounts or hide assets in response.
Preservation is not the same as final ownership
A preservation measure protects the position pending a decision. It does not necessarily establish that the applicant owns the asset or will succeed in the ultimate claim. The underlying matrimonial-property regime, trust structure or third-party rights still need proper analysis.
There may also be other remedies or procedural steps suited to the circumstances, including disclosure, enforcing an existing order or relief under the relevant matrimonial-property provisions. An anti-dissipation interdict should not be treated as the default answer to every financial concern.
When time is short
Tell the attorney the actual transfer date or other deadline and provide the supporting notification. Urgency must be explained; simply calling a matter urgent does not supply the evidence or satisfy the procedural requirements. A formal application can involve cost, notice and risks that should be discussed before proceeding.
HRA does not provide a guaranteed same-day service. Where a deadline is imminent, call to establish availability rather than relying solely on a website form or an AI-assisted WhatsApp exchange.
Questions clients ask
Does an accrual claim make every asset partly mine?
Not automatically. The accrual calculation and the legal character of the particular asset must be distinguished from a claim to direct ownership.
Can the conveyancer simply hold the sale proceeds because I ask?
A concern should be raised promptly, but the conveyancer’s obligations depend on the mandate, the law and any court order. Your objection alone is not equivalent to a binding preservation order.
Does an unsuccessful application end the divorce claim?
Not necessarily. Preservation relief and the underlying financial claim are separate questions. The outcome of one application must be read for what it actually decides.
Get advice before assets or deadlines move
Prepare a short chronology, the existing court papers and the best documents identifying the threatened transaction. HRA can assess the available options and explain the distinction between proving the substantive divorce claim and protecting the position while that claim is determined.
Read about accrual claims in divorce
General information only. Preservation applications and any exceptional circumstances require advice on the actual evidence.