It is property you get while married!
(Continued and concluded from the Friday, August 18, 2017 issue of the Amandala)
Separated, no Will, but dead
Now I was asked a very interesting scenario about where the man died while separated for just over three years, and had already applied for his divorce, but he died before getting the divorce, so the asker wanted to know if the wife still had claims as wife? The answer is simply, yes! It is not until divorce that the spouse can be excluded in a claim under intestacy, but not a Will if she is named in a valid one. Even if you are separated, not talking to each other, mortal enemies … once you are still legally married, either spouse upon the death of the other is clothed with all legal rights as spouse, because there is still not yet a divorce. So the person was asking because it seemed that he was of the view that since the wife was estranged and the husband no longer wanted anything with her, then he felt the wife should be cut out completely. That is not legally possible. Remember, by virtue of being wife she is not only entitled to her one-third as wife, but she is also entitled to his chattels and cash up front $600.00, where such monies exist.
Now the divorce process upon application goes through two main processes, because at the first stage after the hearing, contested or uncontested, the court grants a decree nisi and then weeks later that decree becomes absolute. So the divorce is not final until the decree absolute is given. A decree nisi is an “unless order”, which means that unless certain conditions are met, then the decree will be made final. The thinking is that the parties may seek to reconcile, but unless that happens then the applicant should apply to make the divorce final, which is simply paperwork and no need to go back to the courts.
So even if a spouse dies at the stage of decree nisi, the surviving spouse still has rights under his/her estate. It is until the divorce is final, which is usually six weeks after the decree nisi is granted, then and only then the spousal rights to inheritance under intestacy are extinguished, unless she was named in a valid Will to inherit part or all of his estate, which is very possible!
At the divorce level
Now what is interesting is that at the divorce level the wife or husband may be entitled to more than one-third of the same assets, because the division is not between spouse and children of and out of the marriage, but between only them. Division of matrimonial property after divorce is simply ascertaining the rights of each spouse and their fair share upon the end of the marriage. If nothing was accumulated, then there is nothing to share. Now here I am talking about a scenario where both parties assisted in accumulating the matrimonial assets. I am specific because there are situations, interestingly, in which both parties worked, but only one kept the family maintained and created the matrimonial assets as the other party used his/her money only for his/her own personal expenses, previous loans, education and recreation. It happens, even to the point where the said spouse does not even pay a bill in the house, or pay for the needs of the children.
So I have been asked if it is automatic that the spouse claiming gets part of the assets held in the other spouse’s name, and the answer is a resounding NO! While I will seek to expand on this topic at a later date, suffice to say that under The Supreme Court of Judicature Act, CAP 91, Section 148A the court is empowered to determine each party’s right in the matrimonial property, where it states:
“148A.(1) Notwithstanding anything contained in this Part or in any other law, a husband or wife may during divorce proceedings make application to the court for a declaration of his or her title or rights in respect of property acquired by the husband and wife jointly during the subsistence of the marriage, or acquired by either of them during the subsistence of the marriage.”
Now like I said, it is not automatic, and as such the court has to use some guidance as to what it must consider. These guidelines are found at Section
148A (5) and they are a bit extensive, but suffice to say that the court looks at both the direct and indirect financial and non-financial contribution. At the next writing I will discuss these guidelines further, as they are worth knowing!
(See the first part of the article HERE.)