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.
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.
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.
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