Court clears ex-wife from R10.9m debt created by ex-husband in his company during marriage

Published Feb 2, 2023


The South Gauteng High Court in Johannesburg ruled that an ex-wife should not be held liable for debts incurred by her ex-husband and his partners while operating their business.

The two were married in community of property and the husband had a business as a director while the ex-wife was a teacher.

Creditors of the company obtained default judgment and issued warrants of execution against the ex-husband and his co-directors. They were held personally liable for debt of more than R10.9 million and another bill which was over R59 000 after their company collapsed.

The ex-husband then sought leave to appeal from the Supreme Court of Appeal but the application was also dismissed with costs.

He also failed to make the necessary payments as he was ordered.

The creditors later launched an application for the sequestration of former couple’s joint estates as they were married in community of property.

However, they learnt that the couple had divorced and had no joint estate. The creditors then amended their documents to reflect that the application is in respect of their separate estates.

In their court papers, the creditors argued that since the couple were married in community of property at the time when the debts were incurred, it matters not that they had since been divorced.

In her arguments, the ex-wife said her divorce was finalised on August 2, 2019 and she was only served with the application for sequestration of the joint estate on March 20, 2020.

She added that while the couple were still married, her ex-husband bought and sold properties without her consent. He also bought a house and a car for his sister with the proceeds of the joint estate which eventually led to their divorce.

She said even if it is found that there is a legal basis that her estate be sequestrated, there is no merit in the creditors’ founding papers that imputes the conduct of her ex-husband to her.

She argued that she cannot be punished for the negligent conduct of her ex-husband in conducting his business affairs which she had nothing to do with because she is a teacher.

Judge ML Senyatsi agreed with the ex-wife’s arguments, saying there is no legal basis why the ex-wife’s separate estate should be affected by the sequestration of the ex-husband.

“I hold this view because at the time of the application for sequestration the parties were already divorced. It matters not if the estate of the parties was not divided after divorce,” he said.

Judge Senyatsi ordered the estate of the ex-husband to be placed under final sequestration.