Features — 26 August 2017 — by Audrey Matura-Shepherd
RIGHT TO THE POINT

The errors not to make during and after a divorce

In continuing in the series of dealing with family and matrimonial issues, it is important to ensure that readers know that these series are not legal advice, but rather a sharing of information of the law and legal principles, so that citizens know their rights. In law a simple change of fact could give a different outcome from another person that seems to be in almost the exact same situation.

That being said, I must address errors not to make before marriage, during marriage and especially after divorce.

Not keep records and receipts

4 Love is patient, love is kind. It does not envy, it does not boast, it is not proud.
 5 It does not dishonor others, it is not self-seeking, it is not easily angered, it keeps no record of wrongs.1 Corinthians 13:4-5 (NIV)

I know when people fall in love they bring out a more vulnerable side of themselves. And when they get married and at their wedding they read the above Biblical verse, (a favorite at weddings) they get even more disarmed. I know, love … does not keep records of wrong, but the verse did not say the spouse should not keep records of your financial and monetary transactions. Ironically, its seems that many couples, only heard “love does not keep records” … full stop!

One of the most amazing things is that we do not have a culture of keeping records … we do not keep receipts, we do not keep letters, we do not keep filed away so many important documents and when the love cookie crumbles, a disenfranchised spouse may have a truly unjust narrative of what is done to him/her and how much they have contributed in the marriage, but no actual records of these to prove their case.
I ask myself how could this be? And especially how could this be, when marriage is a contract, just like all business contracts in principle, only that this one involves your personal and private life and all you are is at stake. Even all you make, earn, invest, build, lend, spend, lose, borrow, etc. is at stake. Thus, my suggestion is that all persons in a marriage must learn to keep copies of all their financial transactions with their partner and involving their home.

Know about your partner’s business: it’s your business too!

6 Love does not delight in evil but rejoices with the truth. 
7 It always protects, always trusts, always hopes, always perseveres. 1 Corinthians 13:6-7 (NIV)

Also, it is good to trust in a marriage, I think it is the basis of a successful marriage, but trusting does not mean you do not seek and keep important records. I am amazed at spouses that I must advise who are unable to tell me what is their spouse’s salary… they cannot say and have never seen a payslip, yet they are married and the one spouse contributing all, if not almost all their earnings to the marriage, but have no idea what the other partner makes and how much he or she should be contributing.

Even more incredible is when the spouses enter loan agreements together, or one serves as guarantee of the other, yet the guarantor, does not have a copy of the loan agreement, does not have a copy of payment statements and does not even have access to whatever is the subject of the loan. Yet, the only reasons said spouse agreed to guarantee the loan is because of the matrimonial relationship and the trust they share … yet the other partner does not seem to equally trust and share this most critical information!

It is good to trust, but remember that a marriage is a contract between two consenting adults, and said marriage contracts have some unwritten terms, conditions and covenants and they also have the written ones. It seems that too often couples enter into marriage and do not examine the terms of their marriage contract and do not keep records of critical documentary evidence that impact on their marriage agreement.

One unwritten term is that you both have financial rights and obligations, which can get complicated and the extent of those rights and obligations vary depending on whether both spouses work, whether only one works out of the home, whether one works solely in the home and even what were each spouse’s previous financial obligations that carry into the marriage. The situation gets even more complicated where the spouses operate a business together but yet one has no access to, nor even keep copies of, the records of the business, yet he or she has equally worked and assisted to make the business possible.

My suggestion is: do not be shy about demanding and keeping copies of the business transactions you both do or each other do, but which impacts on the matrimonial finances in the home. In good times and loving days these matters do not matter … you “trust”; but that does not change the nature of your marriage contract and as such you must deal with it just as you would deal with any contract, because in bad times those records will make a difference on how you assert your rights!

You see, these are the things that impact on how well you can establish your financial claims during and after a divorce. Court is all about evidence and truth is relative. I have seen cases where the wife has no access to the husband’s financial records, especially if he is self-employed, thus has no way of proving that he has the means to maintain her or their children when the marriage contract is breached.

Remember at the end of the day your legal counsel can only present the evidence you provide … they do not make up evidence for your case … they only present your case on your behalf. At the end of the day the Courts must make a decision based on proof … not hearsay … not suppositions and surely, not unfounded claims!

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