Woman asks court to cancel her divorce from married ex-husband to pursue spousal maintenance

Divorce dilemma.

Divorce dilemma.

Published May 17, 2023


Pretoria – A woman who was divorced from her husband approached the court wanting her divorce to be rescinded after realising that she would forfeit assets and spousal maintenance in the divorce settlement.

The couple was married in community of property and had two children during their time in marriage.

In September 2021, the pair decided to end their relationship and the husband served his wife with divorce papers.

The wife did not defend the divorce as they had entered into a verbal settlement agreement.

The husband proceeded to have the divorce action enrolled and it was heard on an unopposed basis.

In November 2021, a divorce decree dissolving the marriage between the parties incorporating a settlement agreement was granted.

However, the wife later realised that the divorce affected her spousal maintenance and forfeiture of assets. She went back to court on December 9, 2021, to cancel the divorce order.

On December 14, 2021, the husband got married to his new wife.

On September 2022, the court ruled in favour of the wife and cancelled the divorce order. This meant that their marriage was still valid and the husband’s second marriage was not in force.

Disenchanted with the decision, the husband approached the court saying he wants an order to separate the divorce and the issues his wife involving financial consequences from the divorce and maintenance.

He said he wants the court to deal with the divorce order and other issues separately.

In his court papers, he argued that he is married again and the court should not have revoked the divorce, instead, it should have merely rescinded the settlement agreement in the divorce.

He said his wife will have her day in court where she will deal with issues pertaining to the validity of the settlement agreement and spousal maintenance.

He said separating the issues will not prejudice the wife.

In her responding paper, the wife opposed the application and argued that in April 2021, they concluded a verbal agreement where the husband would give her certain financial benefits.

She said he then told her that it was not necessary to incorporate the terms of the verbal agreement into the settlement agreement. He presented her with an unsigned version of the settlement agreement and threatened her to sign it.

She then signed the settlement agreement believing that he was acting in good faith hence she did not defend the divorce due to the conclusion of the settlement and verbal agreement they had.

She later realised that the husband did not disclose certain facts and circumstances to the court when obtaining the divorce order.

She said by having the divorce revoked, she was not placing her husband in a compromising position, instead, he is the creator of his own misfortune because he received a notice of her application on December 9, 2021 but he ignored the notice and proceeded to get married on December 14, 2021.

She said if he was displeased with the divorce cancellation, he should have appealed immediately but he did not.

Instead, he’s bringing an application now to interfere with the operation of the divorce order and to prevent her from ventilating her claims in court.

She said if a divorce decree is granted, it will automatically terminate any right for her to receive spousal maintenance.

After considering all the arguments, acting Judge AJ Merchak said the husband had not established a prima facie case and presented sufficient information to justify a separation of issues.

“The applicant (husband) has failed to meaningfully, or at all, identify the benefits to all parties concerned, of the issue of a decree of divorce being separated from the remaining issues in the divorce action.

“Whilst the applicant (husband) may have alleged that a separation of issues as sought by him in this application would not prejudice the respondent, he has not gone further and indicated on what basis such separation would be fair or convenient for the respondent (wife),” said the judge.

Judge Merchak dismissed the husband’s application and ordered him to pay for his wife’s costs.