‘In divorce there are no winners’…and the losers could include girlfriends‚ grandparents and siblings
If you have an axe to grind with an ex-spouse‚ sibling or in-law‚ don't think you can turn to the courts to do your dirty work for you‚ as some curious cases have recently shown. Legal experts say that‚ even in the most bizarre divorce and maintenance cases‚ courts will not assist a vindictive party. Instead‚ it will demand compelling evidence to grant a claim.A Pietermaritzburg woman was recently granted permission to probe the bank account of her husband’s new girlfriend‚ where she suspected that her husband of 48 years had hidden money.The wife‚ who cannot be named as a party in divorce proceedings‚ said she was “highly suspicious that the sudden increase in the balance on that account may include funds belonging to her husband‚ to which she may have a valid claim and which are sought to be placed beyond her reach”.Her husband's new lover argued that she is not party to the litigation between the former couple‚ that her account details were irrelevant to the proceedings and that a request to dig into her account was an abuse of court processes.Judge Piet Koen disagreed with the woman‚ however‚ saying she had not explained to the court how she had ended up with R21-million in her account.The man and his new girlfriend allegedly have two children together. According to Koen‚ he had paid for her goods to be moved to Australia‚ where she now lives.Family Law Clinic consultant Cheryl Webb said she has seen a similar case in her own family.“When my sister got divorced after 20 years‚ it was found that her husband had siphoned off £75 000 to a bank account in the UK.”Webb‚ whose sister made the discovery with the help of a private investigator‚ said that when a lot of money is at stake in a divorce‚ people become crafty in order to keep their share. This includes some cashing in their pension funds to ensure their spouse does not benefit from it.“If there is reasonable evidence‚ and [the request for permission to probe a bank account] is not malicious‚ they [the court] would do it ... Any asset that has been moved 24 months prior to a divorce either party has a claim against.”Family law attorney Bertus Preller said his firm frequently subpoenaed bank statements from companies or trusts in divorce proceedings - “We do it all the time”.Webb said that her advice to couples is to enter into an antenuptial contract and create a parenting plan [in case of divorce] while they are still in love and putting the interests of their partner ahead of their own.“When you get divorced‚ it's a simple case of just getting divorced‚” she said‚ citing a case where a couple who lived in a Wendy House and had five assets between them‚ spent R5500 in negotiations over a R250 oil stove as the painful alternative.After two days of negotiations Webb's boss gave the bickering pair R250 to buy another stove‚ at which point the argument shifted from who was to get the old stove to who would get the new stove.“People want to win‚ but they forget‚ in a divorce there are no winners‚" Webb said.But what happens when your ex-spouse or father or mother of your child hides money or quits working to dodge maintaining your children?According to Webb‚ this does happen when things turn sour between parents.A court may give the party in the wrong three months to step up and pay‚ but if they refuse‚ a claim can be made against both maternal and paternal grandparents.In 2003‚ a Cape Town mother fought for maintenance from her child's paternal grandparents in court‚ after the father had failed to provide.The maintenance officer in her case refused to issue summons on the paternal grandparents‚ saying they were not obliged to pay as the child was born out of wedlock.But the 18-year-old woman won the case‚ with the Western Cape High Court recognising that paternal grandparents have a duty of support towards a child despite the child being born out of wedlockPreller said that grandparents may challenge a maintenance claim if they cannot afford it.“If you are a pensioner and you can't pay‚ a court won't say to you: ‘You must pay’.”Webb said grandparents were increasingly being roped into caring for their grandchildren as drug addiction‚ and other social ills associated with it‚ made it impossible for parents to hold down jobs. She said South Africa's high unemployment rate is also a problem.On the flipside‚ Webb said that in cases where one parent abuses another parent in a maintenance claim‚ the court would put its foot down.The Pretoria High Court was so firm that it declared a man bankrupt after he racked up a maintenance bill of R358 949 for his two children‚ dating back to 2008‚ according to an IOL report. A final sequestration order against the man was granted in June.According to Webb‚ the ex-wife of an attorney claimed R6000 in monthly maintenance from him for each of their three children in a case going back 12 years.“She got it initially but in the divorce court it was reduced.”HE AIN'T HEAVY‚ HE'S MY BROTHER?Sometimes‚ however‚ the person getting your goat is not a scorned ex but a sibling.In South African law there is a duty of care between siblings and half-siblings‚ according to Preller.Does this mean that your deadbeat‚ loafing sister or brother can claim money from you? Not exactly.According to Preller‚ the sibling asking for money should be in absolute need of maintenance due to illness or disability. If a sibling who is a student makes such a claim against a working sibling‚ the claimant has an obligation to generate some income while studying‚ he added.“The court will be reluctant to assist someone who is in a position to maintain themselves. There is more obligation on the side of the claimant for the award.”Preller said that the duty on siblings was less than that on parents and grandparents.In the Western Cape High Court a man contended that he relied financially on his brother and sister-in-law in a spousal maintenance dispute. He had been declared medically unfit to work. Without an income‚ he fell behind in his maintenance payments to his ex-wife.Though the maintenance court had ordered the man to pay his ex-wife a token of R1 per month and give her half of the proceeds from the sale of his home‚ no suggestion was made that his brother and sister-in-law should take responsibility for his financial obligations.The man appealed the court's decision to grant his ex-wife half of the profits from the sale of his home‚ which was upheld. TMG Digital..