The Star E-dition

Rushed divorce leads to regrets

ZELDA VENTER zelda.venter@inl.co.za

A WOMAN was in such a hurry to divorce her husband of 23 years and join her new lover, she wanted nothing except to get out of her marriage.

However, she now has second thoughts about being left with nothing.

Nearly three years after signing a settlement agreement during her divorce stating she wanted nothing from her now former husband, she has now demanded to share in his R10 million estate.

She asked the Eastern Cape High Court, which dealt with her divorce, to overturn the settlement, stating she wanted no money or assets from her husband.

The parties were married out of community of property with the inclusion of the accrual system during 1996. They were divorced in 2019, and entered into a settlement agreement which was made an order of court.

That agreement included a non-variation clause, confirming, among others, the agreement contained all the terms and conditions of the agreement between the parties, and neither party would have any further claims against the other.

It was also agreed the husband would retain the farm, and would be solely responsible for the payment of the outstanding bond on the property.

The court was told the reason for the divorce was that the wife had an affair, and she wanted to join the new love of her life as soon as possible.

In light of their divorce, which was uncontested and because neither party wanted any assets from the other, they decided to make things easy and both consulted the same attorney to streamline the process.

The wife now, after the divorce, claimed she was under the impression she was not entitled to any part of her husband’s estate, which she estimated to be worth approximately R10m at the time.

This was based on her erroneous belief they had been married out of community of property, she said.

According to the wife, the attorney failed to correct her error and did not explain the accrual system. Thus, she now said, he prevented her from claiming what she was entitled to.

The wife now told the court the settlement agreement was signed as a result of this “mistake”.

The husband said his wife wanted an amicable divorce settlement without any need to litigate.

“She repeatedly advised me that she wanted ‘nothing’ out of the marriage as she wished to get divorced as soon as possible and to move…”

The husband said this was the basis of the instructions to their shared attorney. According to him, the attorney did advise the wife she was entitled to a portion of the assets which they had accumulated together during the marriage, but she wanted nothing.

It was said the wife did not want to be saddled with the mortgage bond debt regarding the farm, and was simply in a rush to join her new lover.

The husband said it was a conscious decision by her not to claim anything, as she wanted a speedy divorce, thus she must live with her decision.

Judge A Govindjee said the jurisdiction of the high court did not include the right to tamper with the principle of finality of judgments, other than in specific circumstances. This was because of the importance of litigation being brought to finality.

In turning down her application, the judge found the wife knew exactly what she was getting herself into at the time.

He said although she was entitled to obtain a far better financial outcome had she enforced her claim for accrual prior to the divorce, the settlement agreement reached and made an order of court could not be unravelled for the reasons forwarded by her.

The judge added this judgment should also serve as a salutary reminder to legal practitioners of the possible dire consequences for their clients in cases where they choose to represent both parties in proceedings where money or rights are involved.

“While these joint consultations may commence in a spirit of goodwill, or in an attempt to expedite matters and save costs, once the shoe pinches, it is inevitable that the legal practitioner, and by extension the profession, lands in the crosshairs,” the judge said.

METRO

en-za

2022-05-26T07:00:00.0000000Z

2022-05-26T07:00:00.0000000Z

https://thestar.pressreader.com/article/281685438465623

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