Good morning,I got married in South Africa, but now live in the UK and had been separated from my partner for over 6 years. I started a divorce last year, but my partner did everything to disrupt the process. I have had to put the divorce on hold because I am self funded and could not keep up with the legal costs. My question relates to matrimonial property that we own in South Africa. We have two small houses that we let through an estate agent. My ex is in collaboration with the estate agents control everything and I receive no rental income. I have one child with my ex for whom I do not currently receive maintenance. How do I go about obtaining an order from a UK to divide the assets abroad?
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HiAre there any assets in the Uk?Claire
No we do not own any assets in the UK. We have already started the divorce, so there is no issue with recognition of foreign divorces and my partner has applied for British citizenship, which I am almost sure he now has.
HiWhich country have you started the divorce in and how far has it reached?Claire
Hi, I started it here in the uk. We got to the decree nisi, but my ex contested it and cross-petitioned. We then agreed to grounds for the divorce.I now have to service the petition again. Unfortunately I ran out of funds, so everyting is on hold at the moment.Are you a UK solicitor or advisor?
HiI am in the UK and there is a significant problem with regard to the financial side if there are no UK assets What Income does he have in the UK?Claire
He owns a registered business.
HiDoes it have a value - could it be sold?Claire
Yes, I'm sure it has value. He is making a living from it and employs a few people.
HIHow much are the foreign properties worth?Claire
About £70k after the mortgage.
HiWhat does he actually earn?Claire
I don't know. We've not been together in over 6 years.
HiThe problem is a simple one - it is very difficult to enforce a UK Court in South AfricaWhilst I can certainly tell you haw to apply for the financial issues to be dealt with in the UK unless there are financial penalties that can be imposed on his UK assets then an Order is unlikely to be useful.Before you start the process I would therefore suggest that you ensure that you find out which jurisdiction would be most cost effective for you in terms of divorce proceedings.Assuming your child is still under 18 an din full time education you can make an immediate application to the CSA for maintenanceClaire
Just for clarification, can I not apply for financial order which will include the properties abroad? Or if I apply for a financial order (ancillary relief) and include details of the properties abroad can we not sign an undertaking with regard to distribution of the overseas assets and have it endorsed by a UK court. A South African solictor told me that an order from a UK court will be recognised by the courts in SA. If it is possible to apply for a financial order do I have to wait until the divorce petition is served before I can apply?
HiIs your ex likely to co-operate with any financial order made here?Claire
Yes I'm sure he will.
HiIf you are able to reach an agreement that you will both abide by then that's fine.I would suggest that you negotiate a settlement with him using Family Mediation (www.familymediationhelpline.co.uk) and once the agreement has been made then it can be turned into a Consent Order and sealed by the Court once the Decree Nisi has been granted.If no agreement can be reached then there will be a problem in enforcement I am afraid as the UK court cannot Order the Transfer of South African propertiesClaire
I will try to negotiate with my ex or use mediation if necessary. I have a another question or two relating to the finances. I want to handle the financial matters of the divorce on my own. We own no property in the UK, but my spouse has a 70% share of a small private college. Will I be entitled to a share of his business? I work full time and also have a residence order for my young son. Is there a set minimum income I have to earn to apply for a spousal maintenance order or do I simply have to be unable to cope financially in order to apply?
HiIs this college in the UK or South Africa?How much do you each earn?Claire
His college is in the UK. I earn £38k a year. I'm not sure about him, but If I could estimate I'd say about £50k to £60k.
HiSo he does have assets here in the UK - are these worth more or less than the assets in South Africa?Claire
I only know about his business. He owns a major share, but has one business partner. Again I am not sure of the value, but if I could guess I would say it's worth less than the assets in SA. He may also have some savings. My guess would in total not more than the SA assets.
What would I be entitled to in terms of his business?
HiIs he paying child maintenance?Claire
Yes he does, but said he will reduce it from this month.
HiThe court will look at all assets either or both of you have in both countries and will try and make an order that reflects a fair division between you.However since it would be difficult toe enforce a UK Order in South Africa it is likely that the Court will award you a share of the UK assets instead.There would have to be a very large difference in your income and his for spouse maintenance to be a realistic possibility Claire
Thanks for the answers. It was very useful. Just one last question.
Can the UK court issue an order in terms of section 20 of the Matrimonial Property Act of South Africa because we are married in terms of South African law?
HiNo I am afraid that the UK court will only deal with UK law it will make no decisions based on SA lawClaire
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