Asked by the Customer on 02-07-2015 18:08:03
Question posted in the Property Law category relating to Gauteng
Question posted in the Property Law category relating to Gauteng
hi i have file for divorce after 19 years of marriage. we have 3 children 9,12 ans 13. there has been abuse from the mother and the court appointed pschologist has suggested termination of contact. Does the mother have the right lawfully to get another assessment after a year as i have been told that.
we are married in anc with the accrual system. the wife has moved out of the marital home which is registered in both our names but i have paid the house in full as well as the rates and taxes and paid for all the renovations.the house was bought for R500000 and is now valued at R4mill. i own a townhouse in my name bought before we got married but transfer only took place after the marriage and i did not specify it in the anc contract. i have a RA worth R750000 and half a townhouse worth R600000 which i own with my sister also bought during the marriage. i own a business worth about R500000 and have a facility which i owe R1300000. i had R47000 cash before marriage which i specified in the anc contract. i also owned a little flat worth but did not specify the value in the contract but have sold it.
i need to know how the accrual will be worked out and what the judge would order me to do with the house(considering the kids stay with me) the wife worked for 6 years when we got married even though she has bad eyesight(legally blind) she stopped work when we had our 1st child and refused to go back to work. she is now wanting half the house and the town house as well as my business and maintenance of R30000 a month as she claims she cant work cos of her eyesight. i cant sell the house as my children need a roof over their heads and i cant afford R5000 a month maintenance let alone R30000 a month. i want to give her a lump sum and call it quits but she refuses to settle. if my divorce goes to trial, what would be my worst scenario? i know she would be entitled to half the accrual as per contract but am concerned about the house and the amount of maintenance she is expecting. thx c
we are married in anc with the accrual system. the wife has moved out of the marital home which is registered in both our names but i have paid the house in full as well as the rates and taxes and paid for all the renovations.the house was bought for R500000 and is now valued at R4mill. i own a townhouse in my name bought before we got married but transfer only took place after the marriage and i did not specify it in the anc contract. i have a RA worth R750000 and half a townhouse worth R600000 which i own with my sister also bought during the marriage. i own a business worth about R500000 and have a facility which i owe R1300000. i had R47000 cash before marriage which i specified in the anc contract. i also owned a little flat worth but did not specify the value in the contract but have sold it.
i need to know how the accrual will be worked out and what the judge would order me to do with the house(considering the kids stay with me) the wife worked for 6 years when we got married even though she has bad eyesight(legally blind) she stopped work when we had our 1st child and refused to go back to work. she is now wanting half the house and the town house as well as my business and maintenance of R30000 a month as she claims she cant work cos of her eyesight. i cant sell the house as my children need a roof over their heads and i cant afford R5000 a month maintenance let alone R30000 a month. i want to give her a lump sum and call it quits but she refuses to settle. if my divorce goes to trial, what would be my worst scenario? i know she would be entitled to half the accrual as per contract but am concerned about the house and the amount of maintenance she is expecting. thx c
Further information relating to Question:
the townhouse is worth R1mill
would my accrual be half the 4mill of the house being 2mill, the 1mill town house. the RA of 750000 and the business of 500000 and half the townhouse i own with my sister being 300000 less the facility of 1300000 and the cash i had before we were married valued about 200000 now leaving my estate totalling 4550000 less 1500000 leaving 3050000. her accrual will be 2mill for her half of the house. the difference is 1050000 giving her a claim of half being 535000. does that sound correct? then there is the house issue and the maintenance. if i pay half the accrual according to the anc contract, can the judge force me to sell the house and what happens if i cannot afford to buy her half of the house?
Message from the Attorney
Posted by Att. Patrick on 02-07-2015 22:17:06
Hi there and thank you for your question,
If the assessment was performed by a court appointed pschologist, then that will be the report that is submitted to the court. Otherwise what is the point of having a court appoint a pschologist to do the report if she can just get another one? She may however very well try to challenge the report by having her own pschologist perform an assessment and file a report, and she also may challenge the report by trying to "attack" the credentials of the court appointed pschologist. If the court appointed that pschologist, then that pschologist must submit his/her report.
If you are married ANC with the accrual, that means that you need to calculate the increased value in each of your separate estates from the date that you were married until the date that you get divorced, and then the person whose estate has increased the most gives the other person 50% of the difference in the growth.
e.g. Man's estate value at marriage is R5m. Wife's estate value at marriage is R1m. Man's estate value as at divorce is R20m. Wife's estate value at divorce is R4m. The man's estate has increased by R15m, and the wife's estate by R3m. The man must therefore give the wife half of the increase, that being R15m less R3m = R12m divided by 2 = R6m.
If you own 1/2 a townhouse with your sister, then you would include 1/2 of the value of it in your accrual calculation.
You need to add up all of your assets and subtract all of your liabilities. A house worth R4m which has a bond over it for R3m (for example) is only worth R1m in the accrual calculation. Your wife can't get 1/2 of all of the assets but no liabilities.
You unfortauntely won't be able to get away with giving your wife a lump sum and calling it quits. She has a legal right to maintenance, and if she can prove that she can't work then you'll be maintaining her until she dies. The same for your kids.
The amount of maintenance will depend on what you can actually afford, versus what she actually needs. This will all need to be proved in court!
The courts are now ordering "rehabilitative maintenance", which means that it must be paid for xxx years so as to enable the ex to "get back into the workplace". This is the norm where the ex used to work - as in your wife's case. Unless she can prove that her eye sight means she can't work. Once your wife gets back into the workplace, and once you've paid the "rehabilitative maintenance" for the period ordered (which might be 2 - 4 years) then you can call it quits!
Your calculation does sound correct based on what you've said above.
In reality, the house would most probably need to be sold and a smaller house purchased for each of you, especially since you probably don't want to give her your business, and you probably don't want to cash in your RA, and you don't want to give her your townhouse that you share with your sister...
If you pay your half of the accrual to your wife, the judge can't force you to sell your house. The judge can only order you to "pay your wife 1/2 of the accrual".
Don't pay the accrual until the date of the divorce. I've seen people work out the accrual now, pay their wife, the wife spends it all, and then when the matter comes to trial in 1 years time the accrual needs to be worked out again, and the wife gets paid a second time! The accrual is calculated at date of divorce!
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
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If the assessment was performed by a court appointed pschologist, then that will be the report that is submitted to the court. Otherwise what is the point of having a court appoint a pschologist to do the report if she can just get another one? She may however very well try to challenge the report by having her own pschologist perform an assessment and file a report, and she also may challenge the report by trying to "attack" the credentials of the court appointed pschologist. If the court appointed that pschologist, then that pschologist must submit his/her report.
If you are married ANC with the accrual, that means that you need to calculate the increased value in each of your separate estates from the date that you were married until the date that you get divorced, and then the person whose estate has increased the most gives the other person 50% of the difference in the growth.
e.g. Man's estate value at marriage is R5m. Wife's estate value at marriage is R1m. Man's estate value as at divorce is R20m. Wife's estate value at divorce is R4m. The man's estate has increased by R15m, and the wife's estate by R3m. The man must therefore give the wife half of the increase, that being R15m less R3m = R12m divided by 2 = R6m.
If you own 1/2 a townhouse with your sister, then you would include 1/2 of the value of it in your accrual calculation.
You need to add up all of your assets and subtract all of your liabilities. A house worth R4m which has a bond over it for R3m (for example) is only worth R1m in the accrual calculation. Your wife can't get 1/2 of all of the assets but no liabilities.
You unfortauntely won't be able to get away with giving your wife a lump sum and calling it quits. She has a legal right to maintenance, and if she can prove that she can't work then you'll be maintaining her until she dies. The same for your kids.
The amount of maintenance will depend on what you can actually afford, versus what she actually needs. This will all need to be proved in court!
The courts are now ordering "rehabilitative maintenance", which means that it must be paid for xxx years so as to enable the ex to "get back into the workplace". This is the norm where the ex used to work - as in your wife's case. Unless she can prove that her eye sight means she can't work. Once your wife gets back into the workplace, and once you've paid the "rehabilitative maintenance" for the period ordered (which might be 2 - 4 years) then you can call it quits!
Your calculation does sound correct based on what you've said above.
In reality, the house would most probably need to be sold and a smaller house purchased for each of you, especially since you probably don't want to give her your business, and you probably don't want to cash in your RA, and you don't want to give her your townhouse that you share with your sister...
If you pay your half of the accrual to your wife, the judge can't force you to sell your house. The judge can only order you to "pay your wife 1/2 of the accrual".
Don't pay the accrual until the date of the divorce. I've seen people work out the accrual now, pay their wife, the wife spends it all, and then when the matter comes to trial in 1 years time the accrual needs to be worked out again, and the wife gets paid a second time! The accrual is calculated at date of divorce!
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
Thank you for you answer.
so if i pay the ex half the accrual(assuming R500000) , can the children and i still stay in the house even though it is registered in half her name(which she did not pay towards) and can the judge force me to sell it to give her her half? can she refuse to transfer her half into my name at divorce and could the judge not say she must and i transfer the 1 townhouse i own for 1mill into her name? i really want to know if i will be forced to sell the house by the judge after i pay out the accrual
c
so if i pay the ex half the accrual(assuming R500000) , can the children and i still stay in the house even though it is registered in half her name(which she did not pay towards) and can the judge force me to sell it to give her her half? can she refuse to transfer her half into my name at divorce and could the judge not say she must and i transfer the 1 townhouse i own for 1mill into her name? i really want to know if i will be forced to sell the house by the judge after i pay out the accrual
c
Message from the Customer
sorry, i see that you already said that the judge cant force me to sell the house if i pay the accrual. but after that, what claim does she have on the house?
Message from the Attorney
Posted by Att. Patrick on 03-07-2015 09:14:14
Well, you would then surely need to purchase her half of the house from her, especially since her half is taken into account in the accrual calculation. So you would need to buy her out, and if the house is valued at R4m, you would need to pay her R2m for her half. That's on top of the R500k accrual.
As said above, the judge won't force you to sell stuff so that you can pay her. But if you don't pay her the amount that the court orders, she could attach the house and have the sheriff sell it.
Q: Can she refuse to transfer her half into my name at divorce? Yes. But then you would continue to be co-owners of the house, even after divorce. The judge won't get too involved in the details.
Her claim on the house would be for the use and enjoyment of her 50% share in the house. If you continue to live there, you would need to probably pay her rental. Well, 50% of the market rental.
As said above, the judge won't force you to sell stuff so that you can pay her. But if you don't pay her the amount that the court orders, she could attach the house and have the sheriff sell it.
Q: Can she refuse to transfer her half into my name at divorce? Yes. But then you would continue to be co-owners of the house, even after divorce. The judge won't get too involved in the details.
Her claim on the house would be for the use and enjoyment of her 50% share in the house. If you continue to live there, you would need to probably pay her rental. Well, 50% of the market rental.
Message from the Customer
ok, if her half of the house is say 2mill, can i deduct half of the amount of the bond i paid as well as half the rates and taxes and half the alterations i make to the house. if that totaled 2mill, can i claim the 1mill from her or deduct it from her share of the value of the house. ie her share of house is 2mill and i deduct 1mill from that for the payments she should have made?
Message from the Customer
and does she just get away without paying child maintenance or will the judge take that into consideration when deciding what spousal maintenance i must pay?
Message from the Customer
and if i do pay her her half of the accrual, and she wants her share of the house can she still get a sheriff to attach it and sell it?
Message from the Attorney
Posted by Att. Patrick on 03-07-2015 15:23:27
Hi there,
You can't look to expenses that you've incurred over the years to calculate your accrual. You've got to look at the value that your estate has increased by. So, no you can't deduct the rates and taxes, but yes you can deduct the bond. If the house is worth R4m, but you have a bond over it for R1.4m, then the actual asset is only worth R2.6m. You can't deduct the cost of the alterations, because you're simply changing one asset (cash) for another (increased property value).
If you are looking after the children, then you can claim maintenance from her. Why should you bear the costs yourself... she must pay her portion of their maintenance costs.
The judge will treat spousal maintenance separately from maintenance earmarked for your children. Typically (where the children reside with the mother) the Judge will take that into account so as to decrease the overall maintenance. e.g. paying rent for the wife will benefit the kids as well.
No, as I said she will be a half owner in the house. That means that she can sell 1/2 of the house to a third party, or she can sell 1/2 of the house to you. She can't simply attach it. But who would want to buy 1/2 a house?
Typically therefore, the house would be dealt with in the divorce order. One party must take it and buy the other out.
You can't look to expenses that you've incurred over the years to calculate your accrual. You've got to look at the value that your estate has increased by. So, no you can't deduct the rates and taxes, but yes you can deduct the bond. If the house is worth R4m, but you have a bond over it for R1.4m, then the actual asset is only worth R2.6m. You can't deduct the cost of the alterations, because you're simply changing one asset (cash) for another (increased property value).
If you are looking after the children, then you can claim maintenance from her. Why should you bear the costs yourself... she must pay her portion of their maintenance costs.
The judge will treat spousal maintenance separately from maintenance earmarked for your children. Typically (where the children reside with the mother) the Judge will take that into account so as to decrease the overall maintenance. e.g. paying rent for the wife will benefit the kids as well.
No, as I said she will be a half owner in the house. That means that she can sell 1/2 of the house to a third party, or she can sell 1/2 of the house to you. She can't simply attach it. But who would want to buy 1/2 a house?
Typically therefore, the house would be dealt with in the divorce order. One party must take it and buy the other out.
Message from the Customer
thank you, i was just confused as you mentioned earlier that if i don't pay her what the judge orders then she could attach the house and have the sheriff sell it. i have heard that because she owns an asset(half the house) that she did not pay for, i can put in a claim for unjust enrichment.
that means she claims half the accrual and half her share of the house and spousal maintenance and i pay half the accrual and claim from her half of what i paid for to enrich her estate (the half that she should have paid for) and then claim child maintenance from her or ask to reduce the spousal maintenance accordingly. also if i pay half the accrual as ordered and don't have all the cash to pay her out of the house(whatever the judge orders), can i give her the town house and request to pay the balance off over a number of years? can the judge not ask her to forfeit some of the house as the children will be staying there considering she paid nothing towards it?
that means she claims half the accrual and half her share of the house and spousal maintenance and i pay half the accrual and claim from her half of what i paid for to enrich her estate (the half that she should have paid for) and then claim child maintenance from her or ask to reduce the spousal maintenance accordingly. also if i pay half the accrual as ordered and don't have all the cash to pay her out of the house(whatever the judge orders), can i give her the town house and request to pay the balance off over a number of years? can the judge not ask her to forfeit some of the house as the children will be staying there considering she paid nothing towards it?
Message from the Attorney
Posted by Att. Patrick on 05-07-2015 23:36:05
Hi again,
I think that you're getting too worked up and confused about the house, and the fact that it is registered in your joint names.
e.g. Your commencement value is R0. Your wife's commencement value is R0. You buy a house and register it in your name. You work hard and pay it off. When you get divorced the house is worth R4m. Your accrual is therefore R4m, and your wife's accrual R0. She would then have a claim against you for R2m, this being half of the difference in the accrual. Nett result, you owe her R2m.
e.g2. Your commencement value is R0. Your wife's commencement value is R0. You buy a house and register it in your joint names. You work hard and pay it off. When you get divorced the house is worth R4m. Each of you own 1/2 of it. Your accrual is therefore R2m, and your wife's accrual R2. (This is the increase in the value of her estate, even though she didn't contriubte a cent towards paying off the house) She would then have a claim against you for R0m. Nett result, you owe her R0m, and she owns 1/2 of the house, her share valued at R2m.
What's the difference between the above two examples. Nothing! Either way your wife is going to have a claim against you. This is why it's never an issue of whose name the asset is registered in. The value of the estate would still increase!
Unjust enrichment is therefore not a good option.
Her already having a half share in the house means that the accrual would be less. At the end of the day she would still walk away with the same nett amount.
You could claim "reverse" child maintenance from her.
She is a half owner in the house, so you need to come to an agreement with her. She may accept the town house plus R1m cash over 5 years to give up her half share of the house... and she may not. I don't know.
Can the judge not ask her to forfeit some of the house as the children will be staying there considering she paid nothing towards it? No. unfortunately not.
Please can you accept the answers above, as I've already gone way over time with answering this question. Perhaps if you have another question you can start a new topic.
Thanks!
I think that you're getting too worked up and confused about the house, and the fact that it is registered in your joint names.
e.g. Your commencement value is R0. Your wife's commencement value is R0. You buy a house and register it in your name. You work hard and pay it off. When you get divorced the house is worth R4m. Your accrual is therefore R4m, and your wife's accrual R0. She would then have a claim against you for R2m, this being half of the difference in the accrual. Nett result, you owe her R2m.
e.g2. Your commencement value is R0. Your wife's commencement value is R0. You buy a house and register it in your joint names. You work hard and pay it off. When you get divorced the house is worth R4m. Each of you own 1/2 of it. Your accrual is therefore R2m, and your wife's accrual R2. (This is the increase in the value of her estate, even though she didn't contriubte a cent towards paying off the house) She would then have a claim against you for R0m. Nett result, you owe her R0m, and she owns 1/2 of the house, her share valued at R2m.
What's the difference between the above two examples. Nothing! Either way your wife is going to have a claim against you. This is why it's never an issue of whose name the asset is registered in. The value of the estate would still increase!
Unjust enrichment is therefore not a good option.
Her already having a half share in the house means that the accrual would be less. At the end of the day she would still walk away with the same nett amount.
You could claim "reverse" child maintenance from her.
She is a half owner in the house, so you need to come to an agreement with her. She may accept the town house plus R1m cash over 5 years to give up her half share of the house... and she may not. I don't know.
Can the judge not ask her to forfeit some of the house as the children will be staying there considering she paid nothing towards it? No. unfortunately not.
Please can you accept the answers above, as I've already gone way over time with answering this question. Perhaps if you have another question you can start a new topic.
Thanks!
Message from the Customer
you have been really helpful thank you. last q, can the judge at trial order me to pay half the accrual and half the house? or just the accrual cos that is what the anc contract say?
Message from the Attorney
Posted by Att. Patrick on 06-07-2015 16:56:19
Just the accrual cos that is what the anc contract says.
My advice would be to settle the house story with your wife as part of the divorce order. e.g. You take the house, give the wife townhouse plus R1m cash. But that's between the two of you!
My advice would be to settle the house story with your wife as part of the divorce order. e.g. You take the house, give the wife townhouse plus R1m cash. But that's between the two of you!
Answer Accepted
This answer was accepted on 06-07-2015 17:19:09
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