Important Aspects of Voluntary Sequestration
Voluntary sequestration provides you with the opportunity to get rid of up to 80% of your debt within a short period. It entails an application to court to have your financial estate surrendered and to be declared bankrupt.
The estate is surrendered to the benefit of the creditors. The court only accepts the voluntary surrendering of your estate if you can prove that your liabilities exceed your assets and that you are unable to pay debts when due.
The reason for applying for voluntary sequestration is generally to escape financial distress. However, the court must still be satisfied that the surrendering will be to the benefit of the creditors.
To qualify for voluntary sequestration, your estate must be insolvent, and you must have sufficient assets to ensure the sale thereof can cover the costs of the sequestration and provide for minimum benefit to the creditors. Your application must also meet all the preliminary formalities for voluntary sequestration.
When Are You Insolvent?
When your liabilities exceed your assets, you are insolvent. The statement of affairs shows the extent of the debt and your inability to pay the debt. Note that the court may still require an independent valuation of your assets. You must also not have sufficient funds to pay your debts in full, even if you sell all your assets to pay for the debts.
Once you have given notice of your intention to apply for the surrendering of your estate, you cannot withdraw it without consent from the Master. The Master will allow for the withdrawal of the application, if the Master is satisfied that you truly intended to surrender your estate and that you have a valid reason for withdrawing the application.
A notice of the withdrawal of the intention to apply to be declared bankrupt must be published in the Government Gazette and the newspaper where the notice of intention to surrender your estate was published. It must be accompanied by the consent given by the Master for the withdrawal of the application.
The notice of surrender can lapse if the court does not accept the voluntary sequestration application and when the application is properly withdrawn with consent of the Master. It also lapses if you fail to make your application for estate surrendering within 14 days from publishing the notice of intention to surrender your estate in the Government Gazette. Where the notice to surrender lapses, your assets, if already under control of the curator, are then restored as soon as the Master has confirmed that the costs incurred by the appointed curator have been paid.
Rejection of The Voluntary Sequestration Application
The court can, at its discretion, reject the application for the surrendering of your estate even if all the requirements have been met, including the preliminary formalities. Factors that may contribute to the rejection of the application include gross mismanagement of funds and making more debt after judgments have been awarded against you, and if the creditors are willing to give you time to pay the debts and show willingness to accept monthly instalments to the effect.
If the court feels that you may have hidden motives for surrendering your estate as a means to avoid payment or when you fail to fully disclose your financial situation, then the application can also be rejected. The court may reject the application where the supporting documents lack sufficient information, and there is a risk that the costs of the curator and the sequestration would not be covered if the surrendering of the estate is accepted.
You must be able to prove that the creditors will benefit from the process. This is to avoid a situation of abuse whereby the debtor simply resorts to estate surrendering to escape the obligation to pay debts.
Effects of the Sequestration
All garnishee orders on your salary are cancelled. The sale of your assets provides the proceeds from which the costs are covered, legal fees paid, and the benefits paid to the creditors. If all the creditors have received their minimum benefits, the curator is paid, and legal fees are covered, then you are debt free. If there is a shortfall, then you must pay it, but can do so over an agreed period without added interest.
With many factors affecting the success of a voluntary sequestration, it is essential to make use of the services of experienced insolvency attorneys to ensure full compliance with the requirements of the Insolvency Act. Get in touch with our attorneys to help determine whether you qualify for surrendering your estate and to help you with the application process.
Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant as at the date of publishing.