Litigation: Judge warns of dangers of one-lawyer divorce

The Eastern Cape High Court (Makhanda) has ruled against a woman’s attempt to have her divorce agreement varied or set aside to lay claim to a fair share of her ex-husband’s R10m estate, reports GroundUp. In his ruling last week, Judge Avinash Govindjee said that rather than being ignorant or duped by her ex-husband and the attorney who represented them both, as she claimed, she had been negligent in her haste to get divorced. This comes three years after the woman walked away from her 23-year marriage with nothing. Govindjee warned that the case should also serve as a reminder to lawyers of possible ‘dire consequences’ for their clients in cases where they choose or attempt to represent both parties in proceedings where money or rights were involved. ‘While these joint consultations may commence in a spirit of goodwill, or in an attempt to expedite matters and save costs, once the shoe pinches, it is inevitable that the legal practitioner, and by extension the profession, lands in the crosshairs,’ the judge said. The couple were married out of community of property with the inclusion of the accrual system in 1996. They divorced in June 2019 and entered into a settlement agreement which was made an order of court.

The order stipulated that neither party would have any further claims against each other. They had jointly sought the advice of an attorney, named only as Marais. In her application, the woman said at the time of consulting the attorney that she was under the impression that she was not entitled to any part of her ex-husband’s estate because they were married out of community of property. She claimed Marais and her ex-husband had not told her otherwise. Her ex-husband opposed the application. He said she had repeatedly told him that she wanted ‘nothing’ out of the marriage. There was no mistake, or error, she was aware of her rights and any suggestion of fraud on his part, or that of Marais, was denied. The judge said the ex-husband’s version of events was supported by messages between the parties and between them and the attorney in the build up to the divorce which reflected her ‘eagerness’ for the matter to be finalized. Marais, in his affidavit, confirmed that the accrual system had been fully discussed with them and that she had made a conscious decision not to claim anything from her then husband’s estate, reports GroundUp. The judge said the court did not have the right to tamper with final judgments, other than in specific circumstances such as fraud or error of law.

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