Woman asks court to cancel her divorce

A WOMAN who was divorced from her husband has approached the court wanting her divorce to be rescinded after realising she would forfeit assets and spousal maintenance in the divorce settlement.

The couple were married in community of property and had two children. 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 a new wife.

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

Disenchanted, the husband turned to court saying he wants the court to deal with the divorce order and other issues separately.

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papers, he argued he is married again and the court should not have revoked the divorce, instead, it should have merely rescinded the settlement agreement in the divorce.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

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

She said he 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 allgedly threatened her to sign it.

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

She later realised the husband had not disclosed certain facts and circumstances to the court when obtaining the divorce order.

By having the divorce revoked, she said, she was not placing her husband in a compromising position; instead, he was the creator of his own misfortune because he received a notice of her application on December 9, 2021 but he ignored it 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 lodged an application 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 were granted, it would 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 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.

“While the applicant may have alleged that a separation of issues … would not prejudice the respondent, he has not indicated on what basis such separation would be fair or convenient for the respondent (wife).”

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