N.M v M.M and Another (2023/008561) [2024] ZAGPJHC 674 (24 July 2024)

N.M v M.M and Another (2023/008561) [2024] ZAGPJHC 674 (24 July 2024)

The court found that the applicant is entitled to terminate joint ownership of the immovable property under the actio communi dividundo, as both parties agree in principle to termination and there is no legitimate reason to defer this until after divorce. The respondent's concerns regarding accrual and maintenance were found to be without factual basis, as neither party claims maintenance against the other in the divorce proceedings and the respondent will receive his 50% share of the equity regardless of the method of division. The applicant's continued residence in the property with the minor children was deemed just and equitable. The respondent's opposition was found to lack merit and...

Citation
[2024] ZAGPJHC 674
Parties
Applicant: N[...] N[…] M[...]; Respondent: M[...] M[…] N[…] M[...] C[...]; Respondent: ABSA BANK LIMITED
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 July 2024
Case Number
2023/008561
Procedural Posture
Urgent Application / Opposed Motion for Termination of Joint Ownership Under Actio Communi Dividundo
Outcome
Application granted: joint ownership terminated and applicant authorised to purchase respondent's share subject to valuation and bond substitution.
Judges
C Todd
Legal Topics
Actio Communi Dividundo, Division of Joint Property, Accrual System, Maintenance of Children, Termination of Joint Ownership
Family and Children Land and Property Actio Communi Dividundo Division of Joint Property Accrual System Maintenance of Children Termination of Joint Ownership

Case Brief

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Parties

N[...] N[…] M[...]

Applicant

M[...] M[…] N[…] M[...] C[...]

Respondent

ABSA BANK LIMITED

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Termination of Joint Ownership Under Actio Communi Dividundo

Legal Issues

  1. 1 Whether the applicant is entitled to terminate joint ownership of the immovable property prior to finalisation of divorce proceedings.
  2. 2 Whether the applicant may purchase the first respondent's 50% share in the property and become sole owner.
  3. 3 Whether the sale or transfer of the property will prejudice the first respondent's accrual or maintenance claims.

Ratio Decidendi

The court found that the applicant is entitled to terminate joint ownership of the immovable property under the actio communi dividundo, as both parties agree in principle to termination and there is no legitimate reason to defer this until after divorce. The respondent's concerns regarding accrual and maintenance were found to be without factual basis, as neither party claims maintenance against the other in the divorce proceedings and the respondent will receive his 50% share of the equity regardless of the method of division. The applicant's continued residence in the property with the minor children was deemed just and equitable. The respondent's opposition was found to lack merit and...

Court Disposition

Application granted: joint ownership terminated and applicant authorised to purchase respondent's share subject to valuation and bond substitution.

Orders

  • The joint ownership in the immovable property is terminated as set out in the order.
  • Each party must appoint a reputable real estate agent within five days to obtain a valuation; the average of the two valuations will be accepted as the fair market price.