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RIGHT TO THE POINT: Matrimonial property … division upon divorce

FeaturesRIGHT TO THE POINT: Matrimonial property … division upon divorce

Continued from page 11 of the Friday, August 4, 2017, #3108  issue  of the Amandala

Property during the marriage
Thus it stands to reason that the term “matrimonial property” seeks to address the properties that were obtained during the said marriage. If a person marries several times, in each marriage, only what is obtained during that marriage can be dealt with upon the divorce from that marriage. And the word “property” is not limited to land, as it may include shares, money, savings, bonds, vehicles, machinery, equipment, vehicles and any material item of some value. The principle upon which division of matrimonial property operates under, is to ensure that when the marriage ends, any of the property (using the term loosely) the married couple worked towards obtaining, is divided between them and only them as the entitled ones.

I must pause to make a note here of a common trend being used by husbands against wives in an attempt to deprive the wife of their share in the matrimonial property. Although the property is really to be shared between the wife and husband, often the husband, in whose name the property usually is registered, tells the wife he is willing to pass his share in the children’s name, on the condition that the wife likewise relinquishes her share and claim to the children. This is wrong, and women need to stop being bullied into this position and they are advised to fight against it.

Also, children need to stop acting entitled and demanding property in their name, since they are not a party to the matrimony and surely are not the ones who worked and sacrificed to make or build the assets of the matrimony. The only two people entitled to matrimonial property during the divorce of the spouses, are the wife and husband and NOT children.

I think some children are confused about testamentary dispositions, which only come into effect once the parent dies without leaving a Will and Testament stating who will be beneficiary of his/her estate. In those cases, spouse (wife or husband) gets one-third of the estate and the remaining two-thirds is shared equally amongst the children of the deceased. I only state this to make it clear that no wife or husband should be bullied by either spouse to hand over matrimonial property to the children of the marriage in an attempt to displace the other. Likewise no children are entitled to said property, nor should be allowed to bully either parent to hand over the property. As a matter of fact, children should learn to work and earn their own! Especially where they are no longer minors, are married or have children of their own in or out of wedlock!

I once had a client whose husband never finished paying the loan for the matrimonial home and he refused to so do, so she begged the bank to allow her to pay it, yet the bank refused to put her name as the payee, so in the name of the husband the loan was paid off with her money as she worked to ensure there was a roof over her head along with her children. Now, when I met her all the children were adults and all except one son lived with her, so she timidly approached the husband to pass the property to her, since he never gave her anything of his other assets and he did not pay off the loan, nor did he maintain her. Ironically, he said he would only give the matrimonial home to the son who was still living with her and will tell the son to allow her to live in it, but that if she should get involved with another man, she will have to leave the house. Darn! Sadly, the son agreed with the father because he said he did not want any other man to come into his father’s house, and so to date the husband has refused to give the title and the son has refused to move out. This is so wrong, but she has to be willing to fight it and fight the bank and she has the law on her side and she can prove her right. Even worse, the husband has moved on with another woman and has more children, and the one asset his wife worked hard to build and paid off, she cannot get in her name. But it seems she is afraid of her children and her ex-husband. Thus, I emphatically must say, the children have NO say in the matter and no entitlement to matrimonial property.

I tell this one story of the many I have encountered so that spouses who are seeking a divorce or are divorced and are now dividing the matrimonial property, know that the children are not entitled. Unless both really want to give to the children, neither should be forced, coerced, nor bullied to give up their right to their share! In the above case, imagine what happens if the son gets the house in his name and decides to sell it, mortgage it, or put out his mother to bring in his wife? In said situation she has no security and is held at ransom by the wishes of the son! She rightly should get the house in her name and state in a Will to whom she wishes for it to pass upon her death, but until then she is entitled! At this stage is she is even more vulnerable because if he dies leaving a Will and excluding her, she loses, and even if he dies without a Will, she loses because she is no longer the lawful wife and so will NOT get the one-third that goes to spouse. But all his children of the marriage with her and had with the new woman (whom he has not married) are then equally entitled to his estate and the house she worked so hard to pay off! Life is just not fair! But often you are not fair with your own self for refusing to stand up and enforce your rights!
God bless!

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