Question posted in the Family Law category relating to Western Cape
Hi
My case is relatively simple, although the history of the last few months have complicated the situation.
I have been married under ""community of property" in Zimbabwe in 1998. We are currently divorcing since Nov 2015. The litigation is endless because my wife to be ex is acting very irrationally.
We have 2 properties : a house and a plot (and also 2 children). We have been separated for 7 years in a friendly manner for the first 5 years.
We have been separated for 7 years in a friendly manner for the first 5 years. Since then, we have been trying to sell both properties.
I am still living in the co-owned property and pay my wife a rental.
4 months ago, I received an OTP largely above market value (R4.2M). This is the first legal offer we have received since 2011!
My wife has indicated in writing that she was favourable to the offer and at the same time send a counter offer with a divorce settlement within the OTP. Clearly she tried to force me to accept her conditions before signing the OTP. As her financial proposal was not substantiated and her custody offer was against the wishes of the children, I refused to accept. Although the OTP deadline has passed, the prospective buyer is still interested in buying the house (but not in our divorce settlement).
Since then, my lawyer and I have tried for a roundtable meeting but my wife cancelled at the last minute. In fact, she also fired her lawyer (a very reputable firm in CPT) because she did not agree with her lawyer advising her to sign the OTP without mixing the divorce settlement within.
In her last consent paper, she claims a totally unsubstantiated amount of R600K and I claim a justified amount of R200K. The difference can be covered by the plot we still have in common (R850K). Lawyers have also suggested to keep the amount of the sale in the conveyancer trust until a settlement is reached... in order not to miss the sale.
We are both out of cash and I need to move urgently to Namibia where I am immigrating.
My lawyer keeps telling me that the High Court might not force her to sell the house, before the divorce is settled. But she is the one delaying the finalisation of the divorce and not agreeing to meet for mediation/facilitation/arbitration. This is a catch 22!
Now she prentends that she has another potential buyer but that person can onl;y view the house in mid jan. I can not wait any longer!
If the first buyer sends a new OTP, what are my options to force my wife to sign it.
Message from the Attorney
Hi there and thank you for your question,
As you are no doubt aware, there is pending litigation between you and your wife. i.e. Your divorce.
Accordingly, any settlement agreement which is signed by the two of you would need to be by agreement. You are not able to force your wife to sign any settlement agreement which she is not happy with, and she can't force you.
The only way that you can force your wife to sign the OTP is to include it as part of the settlement agreement, OR for a court to order her to sign it as part of your divorce proceedings.
It seems to me as if your only real option is to proceed as quickly as possible with a date for the hearing of the divorce. Clearly a mediation/facilitation/arbitration is not going to work - simply because it requires the buy in of BOTH parties. If your wife keeps putting it off, she's not interested in a mediation/facilitation/arbitration.
Perhaps with her having run out of money it might put some financial pressure on her agreeing to a settlement or signing the OTP.
Other than that, there is really no advice I can give you (other than the above) in order to force your wife to sign the OTP.
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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Message from the Customer
1/ 8 months ago, my wife wrote in a consent paper that she was willing to sell me her share of the house for R2M. I was offering her R1.75M at the time.
2/ 3 months ago, she clearly wrote that she was favourable for an OTP of R4.2M (but then she tried to force me to accept her divorce settlement for her to sign the OTP and asked for more time.
3/ The prospective buyer extended the OTP for 3 weeks. Her lawyer - Zenobia du Toit - advised her to accept the OTP. Instead, she hired an unscrupulous estate lawyer to send, at 5 pm on the expiry day of the OTP, a counteroffer, modifying the original OTP with divorce settlement absolutely not related to the sale of the house. This is illegal and I did not accept her blackmail.
4/ The prospective buyer is still interested.
5/ A month ago, she "pretended" that she received a call from a person interested in the house while meeting with my attorney... strange coincidence.
6/ She also said to my lawyer that she has a cashflow problem.
7/ Last week, she informed me that she had a potential buyer for the house at R4.3M. I invite her to bring the person to see the house.
8/ A few days ago, she told me that the person was now overseas and only able to see the house > 15 Jan. I personally think this is an attempt to increase the other offer.
My problem is that I have delayed my move to Namibia and I cannot wait any longer. I have to move this month and, I would like to give the first buyer first option (also because that buyer was interested to buy most of the content of the house which is mine and that suits me very well).
I can not afford to pay taxes and rates neither her share of the property when I leave to Namibia.
Is there really NOTHING I can do? Please come up with some suggestions...
Message from the Attorney
If your wife is a co-owner of the property, then a court won't readily interfere with her ownership rights. A court won't force her to sell her half share of the property just because you have received an offer for it.
The sad part of your story is that you might need to bend to your wife's demands if you want her to sign the OTP.
The only thing that I can think about is meeting her half way on the R600K vs R200K amount.
If you still have a bond over the property your wife should be made aware that the bank will foreclose on the property and it will be sold in execution for a lot less than it is actually worth. That means that you will both lose.
You need to "throw" some more money to your wife, and read her the riot act, and explain to her that this is a perfect time to sell and finalise your divorce.
I'm sorry ... but I can't think of any other way to force your wife to sign the OTP. I've even asked an advocate for ideas. There are none.