Pretoria - A woman was in such a hurry to divorce her husband of 23 years and join her new lover that she wanted nothing except to get out of her marriage.
But she has now had second thoughts about being left with nothing. Nearly three years after signing a settlement agreement during her divorce, stating that she wanted nothing from her now former husband, the woman has now demanded to share in his R10 million estate.
She asked the Eastern Cape High Court which dealt with her divorce to overturn the settlement saying she wanted no money or assets from her husband.
The parties were married out of community of property with the inclusion of the accrual system during 1996. They were divorced in 2019, and entered into a settlement agreement which was made an order of court.
That agreement included a non-variation clause, confirming, among others, that the agreement contained all the terms and conditions of the agreement between the parties, and that neither party would have any further claims against the other.
It was also agreed that the husband would retain the farm, and be solely responsible for the payment of the outstanding bond on the property.
The court was told the reason for the divorce was that the wife had an affair, and that she wanted to join the new love of her life as soon as possible.
In light of their divorce, which was uncontested and because neither party wanted any asset from the other, they decided to both consult the same attorney to streamline the process.
The wife now, after the divorce, claimed she was under the impression that she was not entitled to any part of her husband’s estate, which she estimated to be worth R10m at the time.
This was based on her erroneous belief that they had been married out of community of property, she said.
She said the attorney failed to correct her error and did not explain the accrual system. Thus, he prevented her from claiming what she was entitled to. The wife now told the court that the settlement agreement was signed as a result of this “mistake”.
The husband said his wife wanted an amicable divorce settlement without any need to litigate. “She repeatedly advised me that she wanted ‘nothing’ out of the marriage as she wished to get divorced as soon as possible … ”
The husband said this was the basis of the instructions to their shared attorney. The attorney did advise the wife that she was entitled to a portion of the assets they had accumulated together during the marriage, but she wanted nothing, he said.
The wife did not want to be saddled with the mortgage bond debt and was in a rush to join her new lover. The husband said it was a conscious decision by her not to claim anything – she wanted a speedy divorce, and must live with the decision.
Judge A Govindjee said the jurisdiction of the high court did not include the right to tamper with the principle of finality of judgments, other than in
specific circumstances, due to the importance of litigation being brought to finality. In turning down her application, the judge found the wife knew exactly what she was getting herself into at the time. Although she was entitled to a far better financial outcome had she enforced her claim for accrual prior to the divorce, the settlement agreement reached and made an order of court could not be unravelled for the reasons forwarded by her.
The judge said this judgment should serve as a salutary reminder to legal practitioners of the possible dire consequences should they choose to represent both parties in proceedings where money or rights are involved.
These joint consultations may commence in a spirit of goodwill, to expedite matters or save costs, but “once the shoe pinches, it is inevitable that the legal practitioner, and by extension the profession, lands in the crosshairs”.
Pretoria News