Asked by the Customer on 02-02-2015 10:01:07
Question posted in the Family Law category relating to KwaZulu-Natal
Question posted in the Family Law category relating to KwaZulu-Natal
Good Day. My husband and I have been married for 11 years and in the last 4 years have been having marital issues. We have discussed these and tried to resolve them on numerous occasions but never seem to be able to fix anything. A year ago, I met someone and had an affair which my husband found out about in December. We decided despite all of that to try and make our marriage work, but I realised that unfortunately it was too late and I had developed real feelings for this other guy. I tried not talking to him or being in contact with him while my husband and I tried to fix the marriage but it was impossible. My husband found out and now we have both decided that the best way forward is to file for divorce and both just move on with our lives. Right now, there is just to much hurt and damage from both sides over th last 4 years to try and fix so hopefully ending things and trying to remain friends will be the better option. both of us feel, that we would rather be friends than hate each other and who knows what the future holds - if we are meant to be together we will find our way back together in the future.
The only assets we own are each of our cars, and we have no children so the divorce itself should be failry uncontested, unless he wants to try and get maintenance and things out of it.
I didn't think he would do anything like that, however his family have always been anti me and I think will now try and push him to do whatever he can to get back at me. The problem being that he is of course, hurt and angry over the while situation of the affair so he might actually listen to them.
I am concerned that he could try and sue me or sue the other guy for alientation of affection or anything else. I don't know what the legal standing on that is in this situation.
I know he has consulted with a lawyer through his family and they seem to think they have grounds to come at me with everything they have and sue me and sue the other guy and do who knows what else, and I am not sure what they are planning so am hoping to get advice to try and find out what the worst case scenario is that I can expect - what can he or can't he fight me for, what can he or can't he do to the other guy... what is and isn't possible as far as the law goes in this case.
He knows that I am persuing a relationship with the other guy and that of course just makes him angrier and more hurt.
I have told him that he can keep all the furniture and things in the house, I won't take anything with me despite being married ANC with no accrual and having paid for a fair amount of the furniture. He can keep it.
I just want a clean end to things as much as possible so that we can both stop hurting each other now and move on, I thought that was what he wanted as well, until his family got involved, now I am not so sure
The only assets we own are each of our cars, and we have no children so the divorce itself should be failry uncontested, unless he wants to try and get maintenance and things out of it.
I didn't think he would do anything like that, however his family have always been anti me and I think will now try and push him to do whatever he can to get back at me. The problem being that he is of course, hurt and angry over the while situation of the affair so he might actually listen to them.
I am concerned that he could try and sue me or sue the other guy for alientation of affection or anything else. I don't know what the legal standing on that is in this situation.
I know he has consulted with a lawyer through his family and they seem to think they have grounds to come at me with everything they have and sue me and sue the other guy and do who knows what else, and I am not sure what they are planning so am hoping to get advice to try and find out what the worst case scenario is that I can expect - what can he or can't he fight me for, what can he or can't he do to the other guy... what is and isn't possible as far as the law goes in this case.
He knows that I am persuing a relationship with the other guy and that of course just makes him angrier and more hurt.
I have told him that he can keep all the furniture and things in the house, I won't take anything with me despite being married ANC with no accrual and having paid for a fair amount of the furniture. He can keep it.
I just want a clean end to things as much as possible so that we can both stop hurting each other now and move on, I thought that was what he wanted as well, until his family got involved, now I am not so sure
Message from the Attorney
Posted by Att. Patrick on 02-02-2015 11:27:57
Hi there and thank you for your question,
Firstly, I'm sorry to hear about your situation. It is never easy to deal with as you are dealing (as you say) with people's feelings.
The BEST and cheapest way for you two to get divorced is by agreement. You must reach agreement on the terms of the divorce now. i.e. you keep your car, he keeps his. Furniture gets shared, or whatever. Money in the bank etc. Then, go down to your Magistrates' Court (make sure that it is a Regional Court, or a Family Court - and not a District Court == which is often in the same building!) and ask to be directed to the clerk of the Court who deals with divorces. Explain that you want an uncontested divorce, and that you've agreed to the terms. He/she will assist you in drafting a summons, explain how the sheriff needs to serve it, then appear in court to be divorced.
You can also use one of these websites to do the same process, with some help: http://www.easydivorces.co.za/ or http://www.divorceonline.co.za/ or http://www.edivorce.co.za/
In relation to the maintenance claim - this will need to be dealt with at the same time as the divorce. So try sort out your divorce quickly otherwise he might push this issue at a later point in time.
In relation to the alientation of affection claim - this is a reality, but it will be an expensive route for your husband to follow! Perhaps you should speak to your husband and explain that if he wants to go this route it will just cost everyone tens of thousands of Rands, and most probably won't get anyone anywhere!
Just because you were the "guilty" party who had an affair, does NOT mean (in South Africa at least) that you need to PAY your husband anything in the divorce. You always see in the movies that it is the guilty party who must pay, or the guilty party who loses everything, but that it NOT the case in South African law. If you are married out of community of property then you just go your separate ways. If you are married in community of property you share the joint estate.
My advice to you is to lay off your other relationship for a month or two to let your divorce go through. If this other man loves you, he will understand and wait for you!
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Firstly, I'm sorry to hear about your situation. It is never easy to deal with as you are dealing (as you say) with people's feelings.
The BEST and cheapest way for you two to get divorced is by agreement. You must reach agreement on the terms of the divorce now. i.e. you keep your car, he keeps his. Furniture gets shared, or whatever. Money in the bank etc. Then, go down to your Magistrates' Court (make sure that it is a Regional Court, or a Family Court - and not a District Court == which is often in the same building!) and ask to be directed to the clerk of the Court who deals with divorces. Explain that you want an uncontested divorce, and that you've agreed to the terms. He/she will assist you in drafting a summons, explain how the sheriff needs to serve it, then appear in court to be divorced.
You can also use one of these websites to do the same process, with some help: http://www.easydivorces.co.za/ or http://www.divorceonline.co.za/ or http://www.edivorce.co.za/
In relation to the maintenance claim - this will need to be dealt with at the same time as the divorce. So try sort out your divorce quickly otherwise he might push this issue at a later point in time.
In relation to the alientation of affection claim - this is a reality, but it will be an expensive route for your husband to follow! Perhaps you should speak to your husband and explain that if he wants to go this route it will just cost everyone tens of thousands of Rands, and most probably won't get anyone anywhere!
Just because you were the "guilty" party who had an affair, does NOT mean (in South Africa at least) that you need to PAY your husband anything in the divorce. You always see in the movies that it is the guilty party who must pay, or the guilty party who loses everything, but that it NOT the case in South African law. If you are married out of community of property then you just go your separate ways. If you are married in community of property you share the joint estate.
My advice to you is to lay off your other relationship for a month or two to let your divorce go through. If this other man loves you, he will understand and wait for you!
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Hi Patrick
Thank you so much for your reply
WIth regards to the Alienation of affection claim - is this still in existence as some of the reading I have done shows that it was taken out of court and high court last year September by a Judge in Cape Town and passed by the high court - it seems like a 3rd party can no longer be sued for alienation of affection.
In this case, is there anything else my husband could try and sue me for or do to me in this divorce etc that I should be aware of. I mean if he goes to a lawyer and says he wants to do whatever to get back at me - what could be done from his side?
The same if he wants to get back at this other guy and try to destroy his life where possible - what is it that he could do or sue for etc from a legal point of view?
Thank you so much for your reply
WIth regards to the Alienation of affection claim - is this still in existence as some of the reading I have done shows that it was taken out of court and high court last year September by a Judge in Cape Town and passed by the high court - it seems like a 3rd party can no longer be sued for alienation of affection.
In this case, is there anything else my husband could try and sue me for or do to me in this divorce etc that I should be aware of. I mean if he goes to a lawyer and says he wants to do whatever to get back at me - what could be done from his side?
The same if he wants to get back at this other guy and try to destroy his life where possible - what is it that he could do or sue for etc from a legal point of view?
Message from the Attorney
Posted by Att. Patrick on 02-02-2015 15:33:37
Hi there,
In this case, is there anything else my husband could try and sue me for or do to me in this divorce etc that I should be aware of. I mean if he goes to a lawyer and says he wants to do whatever to get back at me - what could be done from his side?
The fact that you are married ANC without an accrual means that whatever is yours is yours, and whatever is his is his. He could fight and argue about who bought what; about who contributed towards what expenses; etc; etc ... but at the end of the day the court should draw a line and say yours is yours.
He could sue you for interim maintenance - which would apply for the period between applying for divorce and the proceedings being finalised.
He could sue you for maintenance - but he would need to prove this. Also, the courts are not willing to give life-long maintenance anymore. They give rehabilitative maintenance which means that you could be ordered to support your husband for a year or 2 until he gets back on his feet and earns himself. He can't just NOT try earn.
The same if he wants to get back at this other guy and try to destroy his life where possible - what is it that he could do or sue for etc from a legal point of view?
Essentially the courts have been tightening up on alienation of affection claims for a while now. Things have been getting tighter. But you are indeed right regarding the claims now.
On 25 September 2014, legal history was made when the Supreme Court of Appeal (SCA) ruled that one could no longer claim compensation for damages as a result of adultery. Adultery has now been abolished. In the case of RH v DE, a man “D” sued his wife’s lover “R”, for alienating his wife’s affection and being in an adulterous relationship with her. The High Court earlier found in favour of the ex husband and ordered the lover R to pay R75 000,00 as compensation. “R” however denied that he was responsible for the breakup and took the case on appeal to the SCA.
The SCA requested both counsels to address them on the issues of whether adultery should remain part of the law, giving considerations to our prevailing societal morals, the Constitution and the concept of marriage as an institution. In delivering his judgment, Judge Brand, together with 4 other judges who also concurred, ruled, “the time for the abolition of adultery has come”.
The Judge ruled that Section 39(2) of the Constitution imposes the duty on the courts to develop the common law so as to promote the spirit, purport and objectives of the Bill of Rights. It held that the courts should adapt the common law so that it reflects “the changing social, moral and economic fabric of society”. “Adultery has lost its social substratum”. He said it was doubtful whether these adultery claims had any deterrent effects on society as a whole and held that if a marriage is good one, it’s unlikely that it could be broken up by third party. Judge Brand said that many other countries have abolished adultery and that the time has come for our law to take into account the changing “mores” of our society. The SCA also found that it was not in the best interests of young children of the marriage to be subjected to harmful publicity and emotional trauma that unfolds in adultery actions. The court found that the ex- husband was motivated by considerations of anger at his wife for the breakup of their marriage. “So, instead of being moved by a need for solace and closure, the action was driven by a negative and destructive craving for revenge”.
The balance of my advice above stands. Try to lessen thr emotional heartache that your husband is suffering, and I'm sure that you will be able to push a speedy divorce through the courts.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
In this case, is there anything else my husband could try and sue me for or do to me in this divorce etc that I should be aware of. I mean if he goes to a lawyer and says he wants to do whatever to get back at me - what could be done from his side?
The fact that you are married ANC without an accrual means that whatever is yours is yours, and whatever is his is his. He could fight and argue about who bought what; about who contributed towards what expenses; etc; etc ... but at the end of the day the court should draw a line and say yours is yours.
He could sue you for interim maintenance - which would apply for the period between applying for divorce and the proceedings being finalised.
He could sue you for maintenance - but he would need to prove this. Also, the courts are not willing to give life-long maintenance anymore. They give rehabilitative maintenance which means that you could be ordered to support your husband for a year or 2 until he gets back on his feet and earns himself. He can't just NOT try earn.
The same if he wants to get back at this other guy and try to destroy his life where possible - what is it that he could do or sue for etc from a legal point of view?
Essentially the courts have been tightening up on alienation of affection claims for a while now. Things have been getting tighter. But you are indeed right regarding the claims now.
On 25 September 2014, legal history was made when the Supreme Court of Appeal (SCA) ruled that one could no longer claim compensation for damages as a result of adultery. Adultery has now been abolished. In the case of RH v DE, a man “D” sued his wife’s lover “R”, for alienating his wife’s affection and being in an adulterous relationship with her. The High Court earlier found in favour of the ex husband and ordered the lover R to pay R75 000,00 as compensation. “R” however denied that he was responsible for the breakup and took the case on appeal to the SCA.
The SCA requested both counsels to address them on the issues of whether adultery should remain part of the law, giving considerations to our prevailing societal morals, the Constitution and the concept of marriage as an institution. In delivering his judgment, Judge Brand, together with 4 other judges who also concurred, ruled, “the time for the abolition of adultery has come”.
The Judge ruled that Section 39(2) of the Constitution imposes the duty on the courts to develop the common law so as to promote the spirit, purport and objectives of the Bill of Rights. It held that the courts should adapt the common law so that it reflects “the changing social, moral and economic fabric of society”. “Adultery has lost its social substratum”. He said it was doubtful whether these adultery claims had any deterrent effects on society as a whole and held that if a marriage is good one, it’s unlikely that it could be broken up by third party. Judge Brand said that many other countries have abolished adultery and that the time has come for our law to take into account the changing “mores” of our society. The SCA also found that it was not in the best interests of young children of the marriage to be subjected to harmful publicity and emotional trauma that unfolds in adultery actions. The court found that the ex- husband was motivated by considerations of anger at his wife for the breakup of their marriage. “So, instead of being moved by a need for solace and closure, the action was driven by a negative and destructive craving for revenge”.
The balance of my advice above stands. Try to lessen thr emotional heartache that your husband is suffering, and I'm sure that you will be able to push a speedy divorce through the courts.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
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