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What counts as dissipation, what relief is available, and how the protection differs depending on your matrimonial property regime
A spouse who fears the other is wasting, hiding, or disposing of assets to avoid a fair divorce settlement is not without a remedy — but the relief available, and what must be proved, depends on the matrimonial property regime, and bare suspicion is never enough.
For spouses married in community of property, sections 15 and 20 of the Matrimonial Property Act 88 of 1984 govern consent requirements and protective court orders.
For spouses married with accrual, section 8(1) provides a separate, specific mechanism allowing immediate division where the right to share in the accrual is being seriously prejudiced.
This article explains both mechanisms, what South African courts have required to grant protective relief, and why an application based on rumour or suspicion alone is likely to fail.
This article provides general information about South African law. It does not constitute legal advice and does not predict the outcome of an individual matter.
| Question | General position |
Can a court stop a spouse from disposing of assets before a divorce? | Yes, in appropriate circumstances — but the applicant must satisfy specific legal requirements, not just express concern. |
Is the test the same for every marriage? | No. Community of property marriages are protected under sections 15 and 20 of the Matrimonial Property Act. Accrual marriages are protected separately under section 8(1). |
What must be shown for an anti-dissipation order? | That the respondent is wasting or secreting assets with the intention of defeating the applicant’s claim — not merely that assets are being spent or sold. |
Is hearsay evidence enough? | No. South African courts have dismissed anti-dissipation applications based on unverified, secondhand information. |
What if assets have already been dissipated? | The court may, in appropriate circumstances, take the value of the dissipated assets into account when dividing the estate, rather than simply refusing relief. |
Does a spouse need the other’s consent to deal with joint estate assets? | For significant assets in a community of property marriage, yes — section 15 requires consent for specified transactions, subject to limited exceptions. |
Divorce can bring out the worst in an already difficult situation. Where one spouse believes they are entitled to a fair share of the estate, and the other feels differently, there is sometimes a temptation to reduce what is actually available to divide — by spending recklessly, selling assets below value, donating them to third parties, or simply hiding them.
South African law does not leave a spouse without recourse in that situation. But the available protection, and what must be proved to obtain it, depends on which matrimonial property regime applies.
Section 15 of the Matrimonial Property Act restricts what either spouse can do with significant joint estate assets without the other’s consent.
A spouse generally may not, without the other’s consent, alienate, pledge, cede, or donate assets such as immovable property, shares, investments, insurance policies, jewellery, or valuables held mainly as investments.
The same restriction applies to withdrawing money from an account held in the other spouse’s name, entering certain credit agreements, or binding themselves as surety.
Consent may be given in advance or, in most cases, by ratification within a reasonable time afterward — except where the transaction requires registration in the Deeds Registry, in which case consent must be given beforehand.
In some circumstances, consent must be given separately for each transaction and attested by two witnesses.
A donation or disposal made without consent is not automatically invalid between the spouses themselves, but section 15(9) specifically qualifies its effect on a third party: where a spouse enters into a transaction contrary to the consent requirements in section 15(2) or (3), section 15(9)(a) protects an innocent third party in certain circumstances. If that third party did not know, and could not reasonably have known, that the required consent was lacking, the transaction is deemed to have been entered into with the required consent.
Separately, section 15(9)(b) provides an adjustment remedy between the spouses. If the spouse who entered into the transaction knew, or ought reasonably to have known, that the required consent would probably not be obtained, and the joint estate suffered a loss as a result, an adjustment must be effected in favour of the other spouse when the joint estate is divided.
Where a spouse deals with a third party in a way that breaches these requirements, and the joint estate suffers a loss as a result, the court may adjust the division of the estate in the other spouse’s favour — provided the third party knew, or reasonably should have known, that proper consent had not been obtained.
Section 20 provides a further remedy.
Where a spouse’s interest in the joint estate is being, or will probably be, seriously prejudiced by the other spouse’s conduct, the court may order the immediate division of the joint estate — in equal shares, or on such other basis as it considers just — provided the other spouse will not be unfairly prejudiced by that order.
Section 20 provides a further remedy. Where a spouse’s interest in the joint estate is being, or will probably be, seriously prejudiced by the other spouse’s conduct, the court may order the immediate division of the joint estate — in equal shares, or on such other basis as it considers just — provided the court is also satisfied that other persons will not be prejudiced by the order.
Section 15 and section 20 apply specifically to marriages in community of property. They do not apply to spouses married out of community of property with accrual, whose estates remain legally separate during the marriage.
For those spouses, the relevant protection is section 8(1) of the Matrimonial Property Act, which allows a court to order the immediate division of the accrual — effectively bringing forward the date the claim is calculated — where a spouse’s right to share in it is being, or will probably be, seriously prejudiced by the other’s conduct.
That mechanism, and the important distinction between what must be shown for final relief under section 8(1) itself versus interim protection pending a full hearing, is discussed in detail in our companion guide.
For the accrual-specific mechanism, including how South African courts have approached urgent applications to protect an accrual claim, see MVA’s guide: Can You Protect an Accrual Claim Before Divorce?
The legal test depends on the remedy sought, and the two should not be conflated. Section 20 focuses on whether a spouse’s interest in the joint estate is being, or will probably be, seriously prejudiced by the other spouse’s conduct — it does not require proof of an intention to defeat the claim.
A true anti-dissipation interdict, sought outside that specific statutory mechanism, is different: South African courts have required the applicant to satisfy the court that the respondent is wasting or secreting assets with the specific intention of defeating the applicant’s claim — not merely that the respondent is spending money, selling property, or otherwise dealing with their own assets in the ordinary course.
This principle was developed in the context of protecting creditors’ claims generally, and has been applied by South African courts in the matrimonial context as well, but it is a separate, more demanding test from section 20’s serious-prejudice standard.
Importantly, neither remedy gives the applicant a preferential claim to the specific assets protected — both simply preserve the position pending a final determination of the underlying claim.
Courts have been willing to dismiss anti-dissipation applications where the evidence does not meet this standard.
Where an anti-dissipation application depends on hearsay, untested allegations or suspicion rather than admissible evidence of threatened dissipation, the application may fail.
The evidential foundation should identify the conduct relied upon and, where intention forms part of the applicable test, facts from which that intention can properly be inferred.
The lesson is a practical one: a spouse concerned about dissipation needs concrete, admissible evidence of the other spouse’s conduct and intentions — not secondhand accounts of what someone else claims to have heard.
An interdict restrains a spouse from disposing of or dissipating specified assets, and is typically sought where dissipation is anticipated or already underway.
An adjustment on division may be available where assets have already been dissipated and an interdict can no longer help. If the statutory requirements are met, the court may take the value of the dissipated assets into account when dividing the estate, effectively restoring the prejudiced spouse’s position.
Immediate division — under section 20 for community of property, or section 8(1) for accrual — brings forward the date the estate or accrual claim is calculated, rather than waiting for the divorce to be finalised.
Which of these is appropriate depends on the facts, the matrimonial regime, and how far the dissipation has already progressed.
A spouse concerned about dissipation should focus on gathering evidence that speaks directly to the legal test, rather than general suspicion.
Relevant material may include bank and investment records showing unusual transactions, evidence of assets sold below market value, records of transfers or donations to third parties, and any direct evidence — rather than secondhand reports — of the other spouse’s stated intentions.
The strength of an application depends on the quality of this evidence, not the seriousness of the underlying grievance.
Martin Vermaak Attorneys Inc. advises on South African matrimonial property disputes, including urgent applications to prevent the dissipation of assets, whether under sections 15 and 20 of the Matrimonial Property Act for marriages in community of property, or section 8(1) for marriages with accrual.
Where dissipation is suspected, early advice can materially affect what evidence is available and what protective relief is realistically achievable.
For related guidance, see MVA’s articles on Marriages with Accrual in South Africa.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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