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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15597
Experience:  L.LB (UOVS)
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My sister, whose been married 30 years just told me the most

Customer Question

My sister , whose been married for nearly 30 years just told me the most heartwrenching story of how her husband is abusing her. She works but menial job as cleaner and is mostly dependent on her husband , financially. He often reminders her its "his house "so she ignorantly told me that she feels grateful that he "gives her shelter".I explained to her today that since they are married in community of property the house and bought the house after marriage - it is theirs but I suspect he might have now slyly put the house on his mom's name but we have no confirmation cause she does not know how much he earns ( he's a male registered nurse with over 30 years experience) . They are hiv + but he denies her access to his medicalaid although her name is ***** ***** . He allows their kids to use it but refuse her so she's forced to go to to public clinic while he gets better care. She wants to divorcehim but she lives in Pta and don't know where to start and have no access to his financials. What should she do and how can I help her, please. He's abusive! What are her options? Is she entitled to the medical aid he is now refusing her access to? What does she need to do to prepare for divorce ? Will she be entitled to spousal support? Will she get legal assistance even if she's poor?
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: Pretoria, south africa
JA: Have you talked to a lawyer yet?
Customer: No
JA: Anything else you think the lawyer should know?
Customer: Not that I can think of
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Lawyer about your situation and then connect you two.
Submitted: 5 months ago.
Category: South Africa Law
Customer: replied 5 months ago.
They live together. She want to divorce him but is afraid she says because she fears that she might not have funds to maintain her. She has no visibility to finances or tax returns or his pensions. She's not sure if she'll be protected , financially and otherwise in a divorce. She needs access to good healthcare, I think he's hoping that he'd kill her by denying her access to the medicaid . What are her rights- can spouse deny you access to medicaid he pays for but that has you on as beneficiary? I can help my sis a bit and want to help her find a good lawyer. What does she need to do pre and how does she need to prepare and protect herself?
Expert:  WCLawyer replied 5 months ago.

Good Morning

1.

If a person is married in community of property, this means that there is one common estate. This means that neither the husband nor the wife owns anything in their own capacity, they own everything they have jointly. In other words this one common estate, which means that the husband owns half of everything and so does the wife. This includes the debt.

To make it a little bit more clear: the family car belongs to both of you, as does the debt on the car. It does not matter who owned the car before the marriage, after the marriage, the car and the debt on the car belongs to the common estate, meaning the both of you.

When a marriage in community of property is dissolved, either through death or divorce, the common estate is to be split into half. This means that the debt must be paid and whatever assets are left at the end of it, will be split into half between the two of you if you get divorced.

The only way out of this is if a court order the forfeiture of benefits or if the parties negotiate a different deal and put it in a settlement agreement and make it an order of court. This settlement agreement would, however, only be applicable between the two of them. The debtors of the common estate can still claim payment of the debt from either or both of the parties. If this has the result that it will make the settlement agreement inequitable, the parties must sort it out amongst themselves how that is going to be redistributed. For instance, if they agree on a 70/30 split and the debtor claims the full amount from the person responsible for the 30%, then that person can claim 70% of what was paid from the other spouse.

2.

Spousal maintenance is not an automatic claim as child maintenance would be. The person claiming spousal maintenance must prove that he/she is entitled to spousal maintenance. A spouse claiming maintenance must, therefore, put forward reasons on why such a spouse is entitled to maintenance. The court will take into account these factors and make a decision.
Factors may include existing and prospective earning capacities of both spouses, affordability, the ages of the spouses, how long they were married and how much each spouse contributed to the day to day household, standard of living prior to the divorce, the reason for the divorce, if the spouse claiming maintenance did not work, why he/she did not work and any other factor that the court deems relevant.

In my opinion, given the circumstances, I do believe that she will qualify for spousal maintenance.

3.

She can approach her local Legal Aid office. Details can be obtained from the Magistrates Court. They will provide her with a free lawyer who can assist her in getting access to the medical aid and who can assist her with the divorce.

I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.