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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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Married without Accrual. Husband has an affair and moved out

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Married without Accrual. Husband has an affair and moved out after 13 years of marriage. Do I have any rights?
Good day.

This is an info request to assist you better. Please continue on this thread.

Are you asking whether you have any rights to his property?
Customer: replied 4 years ago.

Any rights at all. We are married without accrual so I don't have claim on anything that is on his name. Since he has the affair and moved out, don't I have some claim on anything?

Do you have children?
Customer: replied 4 years ago.

Yes, a son from my previous marriage (16) and a daughter from this marriage (11).

Is either one of you going to start with divorce proceedings, or have you already started with divorce proceedings?
Customer: replied 4 years ago.

We have an unsigned agreement between us. I stay in his house until 2015 when my son finishes school. He pays the house, my car, all my daughter's expenses as well as R2000 alimony. After 2015 when I have to move out, he agreed that he will give me R100k to use as a deposit on a house for myself. He is pushing that my daughter does not move out with me but stay with him when he and his girlfriend move back in. I presume I will loose the R2000 alimony he will be paying. He is delaying in signing the agreement saying he is not in a hurry.

But no summonses has been issued yet?
Customer: replied 4 years ago.

No nothing as yet. As I said he is not in a hurry, but have moved on with this other woman and I am left behind with the kids.

1. There is nothing that says that you cannot start with divorce proceedings from your side. Obviously if it would be better if you can come to some sort of agreement prior to starting the proceedings, but clearly this is not going to happen, so maybe you should back him in a corner to push thing along.

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.

Given his conduct, however, chances are that a court will allow you spousal maintenance.

3. The South African the common law with regards XXXXX XXXXX maintenance of children require that each parent support their children proportionate to their means. This basically means that, establishing the amount of maintenance that a parent is liable for, should be established following a three pronged process.

(a). Firstly, the needs of the child estate be established. This will typically include a roof over his head, food, schooling, medical costs etc. A child, that is used to a certain standard of living, can be expected to maintain that standard insofar as his parents can afford it. Note that, in this section, the personal expenses of the custodian parent should not be factored in. For instance, if they are to children that needs to be maintained and the rent of the house that they are living in is for instance, R 3000, it needs to be established which portion of that R3000 is for the custodian parent personally. Typically, assuming there are two children and one noncustodial parent, the amount of R 3000 will be divided into three and the R2000 that is left will be divided between the two parents as per the calculation in paragraph 2 below.

(b). Once the amount of maintenance has been established, you need to establish which part of that amount each parent is liable for. This is done right calculating the portion of a parent salary in comparison with the combined salary of both parents. For example; let's assume that the father earns R20,000 per month and the mother earns R10,000 per month. The father earns 66, 6% of the total combined salary and the mother earns 33, 3% of the total combined salary. Let's assume that the amount in 1. Equals R3000 per month. This would mean that the father would have to pay R2000 towards maintenance, and the mother needs to pay R1000 towards maintenance.

(c). The final step in establishing the amount of maintenance that a parent is liable for, would be affordability. The court will have a look at the finances of a parent to establish whether the parent can in fact afford, for instance, the R2000 in maintenance. You need to note, however, that the court will not allow the parent to maintain a luxurious lifestyle at the expense of the child. If the court find that the parent cannot afford the maintenance, the court will look whether the parent can exclude some luxurious expenses from his personal budget. If, after that, he still cannot afford the maintenance, the court will make some final adjustments to bring the amount of maintenance payable in line with what the parent can afford.

This only relates to the child you have together, though, unless he also adopted your son. If not, you can only claim maintenance for your son from his father.

4. A spouse can sue a third person for breaking up his marriage. It is a civil claim (for money) and can be concluded in conjunction with the divorce proceedings.

The general principle in law is that he who alleges, must prove. So, the party who claims that the marriage has broken down because of the interference of a third party should not only prove the affair, but that the affair caused the irretrievable breakdown of the marriage. In other words, had it not been for the affair, the parties would probably still be married. The third party would also have to know or should reasonably have known that the spouse was married and chose to persist with the affair despite that knowledge.

The claim does not lie against the spouse, but against the third party and the "innocent" party would not sue the "guilty" party, but the third party.

Trust me, putting both of them under pressure by adding her as a party to the divorce will definitely force him to the negotiating table.

I hope this answers your question, 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. I do not get anything unless you rate the service

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