{"id":226933,"date":"2022-05-24T14:26:26","date_gmt":"2022-05-24T12:26:26","guid":{"rendered":"http:\/\/www.groundup.org.za\/article\/no-fraud-or-mistake-divorce-order-judge-rules\/"},"modified":"2022-05-24T14:26:26","modified_gmt":"2022-05-24T12:26:26","slug":"judge-cautions-couples-against-sharing-lawyers-during-divorce","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/judge-cautions-couples-against-sharing-lawyers-during-divorce\/","title":{"rendered":"Judge cautions couples against sharing lawyers during divorce"},"content":{"rendered":"<div id=\"article_body\">\n<p><a class=\"bigger-image\" href=\"https:\/\/www.groundup.org.za\/media\/uploads\/images\/Graphics\/judge.jpg\" target=\"_blank\" rel=\"noopener\"><img decoding=\"async\" alt src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/05\/judge-cautions-couples-against-sharing-lawyers-during-divorce.jpg\"><\/a><\/p>\n<p class=\"caption\">Illustration: Lisa Nelson<\/p>\n<ul>\n<li>\n<p role=\"presentation\">A judge has cautioned couples and lawyers against sharing legal representation during divorce proceedings.<img loading=\"lazy\" decoding=\"async\" alt class=\"leave\" height=\"1\" id=\"gu_counter\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/05\/judge-cautions-couples-against-sharing-lawyers-during-divorce.gif\" width=\"1\"><\/p>\n<\/li>\n<li>\n<p role=\"presentation\">A couple divorced in June 2019 and entered into a settlement agreement which was made an order of court.<\/p>\n<\/li>\n<li>\n<p role=\"presentation\">At the time, the woman repeatedly told her then husband that she wanted \u201cnothing\u201d out of the marriage and that she wished to get divorced as soon as possible.<\/p>\n<\/li>\n<li>\n<p role=\"presentation\">In this application, the woman said she was under the impression that she was not entitled to any part of her ex-husband\u2019s estate because they were married out of community of property.<\/p>\n<\/li>\n<li>\n<p role=\"presentation\">The judge said the court did not have the right to tamper with final judgments, other than in specific circumstances.<\/p>\n<\/li>\n<\/ul>\n<p>The Makhanda High Court has ruled against a woman\u2019s attempt to have her divorce agreement varied or set aside to lay claim to a fair share of her ex-husband\u2019s R10-million estate.<\/p>\n<p>In his <a href=\"https:\/\/www.groundup.org.za\/media\/uploads\/documents\/jn_v_nn_2022_2283-2021_ecm.pdf\">ruling<\/a> 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.<\/p>\n<p>Judge Govindjee warned that the case should also serve as a reminder to lawyers of possible \u201cdire consequences\u201d for their clients in cases where they choose or attempt to represent both parties in proceedings where money or rights were involved. \u201cWhile 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,\u201d the judge said.<\/p>\n<p>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.<\/p>\n<p>The order stipulated that neither party would have any further claims against each other and they agreed to retain all moveable assets in their respective possession at the time. It stated that the husband would retain sole ownership of a farm where they lived and would be solely responsible to pay the bond on it.<\/p>\n<p>Judge Govindjee said it was common cause that the marriage had broken down because the woman was having an affair. They had jointly sought the advice of an attorney, named only as Marais.<\/p>\n<p>In her application to set aside or vary the settlement agreement, 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\u2019s estate because they were married out of community of property.<\/p>\n<p>She claimed Marais and her ex-husband had not told her otherwise, suggesting that her then husband had \u201cfraudulently withheld the true position\u201d. Her ex-husband opposed the application.<\/p>\n<p>He said she had repeatedly told him that she wanted \u201cnothing\u201d out of the marriage and that she wished to get divorced as soon as possible. He said the accrual system had been explained to both of them by Marais but, at the time, she had not wanted to be saddled with the bond on the farm and \u201cwas in a rush to join her lover\u201d.<\/p>\n<p>He said she had taken a conscious decision not to claim anything, without any pressure on his part. 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.<\/p>\n<p>The judge said the ex-husband\u2019s 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 \u201ceagerness\u201d for the matter to be finalised.<\/p>\n<p>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\u2019s estate.<\/p>\n<p>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. Once a judgment was given, it could not lightly be set aside. \u201cThis case is concerned with a consent order deriving its existence from a settlement agreement which makes it clear that the parties had established consensus,\u201d he said.<\/p>\n<p>Turning to the \u201cinterests of justice\u201d, Judge Govindjee said the woman had labelled the agreement as \u201cmorally reprehensible\u201d. He said the evidence was that the meaning of the accrual system had been explained to her and she was aware of her then husband\u2019s assets.<\/p>\n<p>\u201cShe nevertheless decided to proceed on the basis of an unopposed divorce, sharing the same legal representative as her husband, and based on a settlement agreement that she signed freely and voluntarily. There is nothing inherently repugnant about the arrangement concluded and it is not contrary to public policy,\u201d Judge Govindjee said.<\/p>\n<p>\u201cThe consequence is that she has failed to set aside, rescind or vary the order. Even though she may have been entitled to obtain a better financial outcome had she enforced her claim for accrual prior to the divroce, the settlement agreement reached and made an order of court cannot be unravelled.\u201d<\/p>\n<p><em>Do you agree with the judge\u2019s advice about not sharing lawyers? Have you had an experience that you wish to share with other readers? Please <a href=\"https:\/\/www.groundup.org.za\/letter\/11608\/\">tell us about it<\/a>. <\/em><\/p>\n<\/p><\/div>\n<div id=\"article_copyright\">\n<p>\u00a9 2022 GroundUp. This article is licensed under a <a href=\"http:\/\/creativecommons.org\/licenses\/by-nd\/4.0\/\" rel=\"license\">Creative Commons Attribution-NoDerivatives 4.0 International License<\/a>.<\/p>\n<p>You may republish this article, so long as you credit the authors and GroundUp, and do not change the text. Please include a link back to the original article.<\/p>\n<p>We put an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We do not give our logs to any third party. Logs are deleted after two weeks. We do not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, <b>not tracking<\/b> users. If you republish, please do not delete the invisible pixel.<\/p>\n<\/p><\/div>\n<p><img decoding=\"async\" src=\"http:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/05\/judge-cautions-couples-against-sharing-lawyers-during-divorce.jpg\"><a href=\"https:\/\/www.groundup.org.za\/\">Source: GroundUp<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Illustration: Lisa Nelson A judge has cautioned couples and lawyers against sharing legal representation during divorce proceedings. A couple divorced in June 2019 and entered into a settlement agreement which was made an order of court. At the time, the woman repeatedly told her then husband that she wanted \u201cnothing\u201d out of the marriage and [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":226934,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[9928],"tags":[28001],"class_list":{"0":"post-226933","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-groundup","8":"tag-groundup","9":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/www.myza.co.za\/press\/wp-content\/uploads\/2022\/05\/judge-cautions-couples-against-sharing-lawyers-during-divorce.jpg","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/226933","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=226933"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/226933\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media\/226934"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=226933"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=226933"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=226933"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}