The short answer
Yes, but the question of why you have left it for 23 years will be central to any consideration of varying the court order of divorce.
The whole question
Dear Athalie
Is it possible for me to amend my divorce order after 23 years? My ex-husband did not divide the joint estate with me, did not seek my permission to sell the house, and did not include me in his pension fund.
The long answer
Perhaps we should first establish the steps that must be taken when a couple gets divorced:
The spouse who wants the divorce is called the plaintiff in court and the other spouse is called the defendant in court;
The plaintiff goes to the Regional Court (the Divorce court at the magistrate’s court) or to the High Court to get a summons. This is actually a combined summons and plea, setting out what the plaintiff wants in the divorce agreement;
This is the information that the plaintiff must put in the summons:
That there is no reasonable prospect of restoring the relationship;
How the joint estate is to be divided according to whether they were married in community of property or out of community of property. If in community of property, the joint estate is divided equally between the parties. The parties have to get permission from each other when they make decisions about the assets;
What the arrangements will be for any children born of the marriage or adopted;
That the defendant has 10 days (if they live in the same area) or 20 days if they live in a different province to answer to the summons.
If there are children, the office of the Family Advocate must be informed;
The Registrar at the court will open a file, stamp the documents (ID, marriage certificate,) give a case number, and give back the documents. The plaintiff must deliver two sets of these documents to the sheriff in the area where the defendant lives or works. The sheriff will then serve the documents on the defendant personally and issue a return of service to prove that the documents were served;
If, after the 10 or 20 days, the respondent has not responded by giving notice of her intention to defend it, the plaintiff can enroll the divorce on the court roll and the court will grant a divorce by default. A divorce by default is an uncontested divorce, meaning that the spouses agree on the divorce, and how it is to be done, and they sign a settlement agreement, which becomes part of the divorce order. Often, a divorce order / or settlement agreement will give one spouse the right to become the 100% owner of the house, while a financial arrangement is made to compensate the other spouse for his or her 50% share.
According to Anthony Inc, divorce law says:
“When spouses are married in community of property, their assets are tied up in the joint estate and, when a court grants a decree of divorce, the assets must be divided. Where the spouses agree on a division of the joint estate, a settlement agreement may be drafted to be incorporated in the decree of divorce and made an order of the court. Where spouses do not reach an agreement on how to divide their joint estate (as often happens), the court has the power to appoint a receiver or liquidator to realise and divide the assets of the joint estate on its behalf. Spouses who do not conclude an antenuptial contract are automatically married in community of property. This means that you have a joint estate of their assets and liabilities.”
Was your ex-husband the one who initiated the divorce? Do you have a copy of the decree of divorce?
You can get a copy of your divorce decree by contacting the Registrar of the High Court where the divorce was granted. You would need the divorce case number, the date of the divorce and names and IDs of both spouses. This link will give contact details for the High Courts on the Office of the Chief Justice's website.
I am also thinking that perhaps you did not respond to the summons and your ex-husband got the divorce order by default?
Does the divorce decree or order say specifically that as you were married in community of property, the joint estate must be split 50/50 between you and your ex-husband and that you have a right to 50% of his pension?
It could be that the court order did not specifically state this. There was a case in 2018 in Bloemfontein, reported on by Simon Dippenaar of SDLaw, where a couple had got divorced in 2012, with no court order about dividing the joint estate. There was no settlement agreement signed and no record of an official verbal agreement between them. But as they had been married in community of property, the wife was entitled to 50% of the husband’s pension interest, which is based on the amount accumulated by the husband at the time of the divorce.
She applied to the courts to amend her divorce settlement in terms of Rule 42(1)(c) of the Uniform Rules of Court, alternatively the common law. The judge said that as there has been no agreement between the parties that she would not claim the pension interest, each spouse is entitled to a half-share of the joint estate. The court ordered the divorce settlement to be amended and she got the amount of the pension that she was entitled to at the time of the divorce.
But things can get more complex when a lot of time has passed between the divorce and the application to amend the divorce order: In the following case before Acting Judge Van Staden on 10 February 2020, the judge said, "Although rule 42(1) does not specify a time limit, it is a discretionary remedy. Like all discretionary remedies, it must be sought within a reasonable period of time."
In the 2020 case, a man who had been married in community of property and had been divorced for 19 years, applied for a variation of a divorce decree in terms of Rule 42(1) to provide for the sale and division of the house and a share in his ex-wife’s pension fund. He said that he would only lose his rights to the joint estate 30 years after the divorce, as court orders remained valid for 30 years.
The ex-wife pointed out that he had made no claim on the house or her pension when they divorced. At the time of the divorce, she had only recently begun paying off the bond for the house, so he wouldn’t have got very much. She said he waited until she had paid off the house before communicating with her in any way and making his claim.
The issues the judge had to decide were the following: if the applicant (the ex-husband) had waived (voluntarily given up) his ownership rights in the joint estate, and if he was entitled to a variation of the divorce order 19 years after it was granted.
The judge said there were two ways of losing property: by a waiver where you give it up voluntarily, or by prescription, as when the court order prescribed (in other words, was no longer valid) after 30 years. He said that delay in enforcing a right does not in itself mean that you have waived (given up) a right. He noted that it was unusual for people to give up their rights or property for no reason, and that made deciding whether there had been a waiver of ownership rights very difficult. He said he had to ask if the way the ex-husband had behaved showed clearly that he wanted to enforce his rights after the divorce. Or not. In other words, was the ex-husband’s conduct consistent with an intention to enforce his rights to the joint estate?
And the judge found that it was not. He said that there was no explanation from the ex-husband as to why he had seemingly agreed that his ex-wife should take on the entire responsibility of paying for and maintaining the house for 19 years. He said that ‘The only acceptable inference is that the applicant decided not to enforce division of the joint estate, and to waive his joint ownership rights. His conduct was plainly inconsistent with an intention to enforce his joint ownership rights.’
The judge came to the same conclusion about the pension benefits: the ex-husband had been the one initiating the divorce, and if he had wanted to carry out the division of the joint estate with regard to claiming his ex-wife’s pension interest, he would have taken steps to do so. The fact that he didn’t do so, taken together with the extended period of 19 years of not doing so, led the judge to infer that the ex-husband had deliberately decided not to implement the division of the joint estate as far as the pension benefit was concerned.
So, the judge agreed that the ex-wife, who had paid off the bond alone, was not required to give the ex-husband, who had not done anything for 19 years to enforce his rights to 50% of the joint assets, such rights.
I don’t know what the details of your own story are, but I have gone into the case above in some detail to show that the question of why you have left it for 23 years will be central to any consideration of varying the court order of divorce.
At any rate, you will need to get legal advice.
If you can’t afford a lawyer, Legal Aid, which is a means-tested organisation, must assist you.
Here are their details:
You could also approach one of the following organisations:
The Women’s Legal Centre:
And an organisation like Pro Bono which will take on cases free of charge if they decide the case is in the public interest:
Pro Bono
Johannesburg offic
Cape Town office:
Durban office:
Wishing you the best,
Athalie
Answered on April 5, 2023, 9:50 a.m.
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