Ask an expert
Question

15 Feb 2010

divorce
In a 30 year old marriage where the wife has been mostly the housewife and an affair is had by the husband, what rights does the wife have legally. Our marriage is anc and everything is in my husbands name ie: assets, policies, pensions, insurances. We were due to retire in 5 years time and he is well off. What are my legal rights insofar as the pensions, assets, insurances, savings funds ? Will the courts/lawyers protect me ? Will I end up renting a tin shack somewhere instead of living in my upper class home ? Will I be entitiled to maintenance from him and if so will this be life long ? Please advise.
Answer 262 views
Expert
Family law expert
Family law expert

01 Jan 0001

Dear "to old for this"

You are not to old to stand for what is right in the emotional turmoil associated with what you are going through at the moment and certainly do have a number of claims against your spouse. A synopsis of the law as it relates to marriages prior to 1984 is below.

I suggest that you contact an attorney to claim what is rightfully yours.

The Divorce Act 70 of 1979 as amended by act 88 of 1984 is applicable where spouses are married prior to 1 November 1984 . Section 7(3) of the Divorce Act together with section 21 and section 23(3) of the Matrimonial Property Act 88 of 1984 have the main influence on which claims will be applicable in a divorce action of a marriage concluded prior to 1 November 1984.
Section 7(3) of the Divorce Act 70 of 1979 states as follows:
“the court may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets of the other party as the court may deem just be transferred to the first-mentioned party.”
The claim brought forth by section 7(3) of the divorce act is a claim for redistribution of the joint estate. Such an agreement as mentioned in section 7(3) of the divorce act 70 of 1979 must be concluded prior to the marriage to conform to the provisions of section 21 of the matrimonial property act and is referred to as the “antenuptial contract”. This contract may be informal but the party alleging the contract must also prove its existence and terms In terms of this section it is clear that in the event of the proven existence of an antenuptual contract may it be written or verbal the claim in terms of section 7(3) of the divorce act will not be successful.

According to section 23(2) of the Matrimonial Property Act a spouse married out of community of property before the commencement of the said act is liable to contribute to the necessaries for the joint household pro rata according to his financial means. Thus in terms of section 23(3) of the Matrimonial Property Act 88 of 1984 a spouse married out of community of property before the commencement of the act will have a right of recourse against the other spouse in so far as he has contributed more to the joint household than he was liable for in terms of section 23(2) of the Matrimonial Property Act 88 of 1984. To succeed with a claim in terms of section 23(3) of the Matrimonial Property Act the plaintiff will need to prove that he had indeed throughout the marriage contributed more than his pro rata share to the joint household. As this is an extremely difficult thing to prove claims in terms of this section are rare and it is preferred to rather claim under section 7(3) of the divorce act.

Bertus Preller
bertus@divorceattorney.co.za
www.divorceattorney.co.za
The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical examination, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.