A judge expressed his concern about a divorce settlement in which an elderly couple, getting divorced after 56 years of marriage, entered into a settlement agreement, in which the 81-year-old husband is content to leave the matrimonial home, taking only a small Suzuki hatchback with him.
The plaintiff (wife) sued the defendant (husband) for divorce. Their settlement agreement was placed before Judge Stuart Wilson, sitting in the Gauteng High Court, Johannesburg.
The wife’s counsel asked the judge to grant a decree of divorce, incorporating the settlement agreement.
Judge Wilson said it appeared that the couple had been married in community of property since January 1968. The wife, 78, said they wished to divorce because they had lost love and affection for one another and that there was no longer any meaningful communication between them.
They also no longer shared any common interests.
“After 56 years of marriage, that summary of affairs seemed a little terse. In addition, the settlement agreement placed before me appeared to assign almost all of the marital estate to EST (the wife), the judge remarked.
He noted that ownership of the marital home was to be given solely to her and the husband was obliged to make a further payment of R4.1 million to her.
Under the agreement, he was also required to move out of the house within 48 hours of the court’s approval of the agreement, taking only a small Suzuki hatchback with him.
But Judge Wilson said he first had to ensure that the settlement was concluded freely and voluntarily in the full knowledge of the respective parties’ rights.
“The apparent inequity in the disposition of EST’s and HT’s (husband’s) marital estate raised the real possibility that the settlement agreement had not been freely struck in this sense.”
The judge subsequently adjourned the action for divorce, with a direction that the parties place before him additional material which dealt with the breakdown of the marriage relationship and the division of the marital estate, to show that the agreement was freely concluded.
The parties later returned to court, where the husband explained that, while they had lived together until the end of last month, the parties had not shared a bedroom for 15 years. They led separate lives. They no longer have any intimacy or affection for one another and no longer communicated on any matters of substance.
In short, the marriage had irretrievably broken down and they wished it to end.
Judge Wilson said the role of a judge in considering whether to grant an uncontested divorce in which the parties had settled their affairs between themselves was obviously limited. However, the judge must ensure that a settlement was entered into freely and voluntarily and in the full knowledge of the parties’ rights.
The judge said the wife’s lawyer had originally contended that the court need not worry about the apparent inequity in the division of the marital estate. She submitted that the parties might agree to whatever terms they choose and that a court ought to respect the parties’ autonomy to do so.
“That submission was pressed too far. Where the division of the estate itself suggests such a disparity as to call into question whether it was really agreed to, ‘whatever the parties choose’ might, legally speaking, be no true choice at all,” the judge said.
However, he said, the additional material the parties had supplied demonstrated that the estate was much larger than was disclosed in the papers initially submitted.
The husband, in supplying additional information, said the court need not worry, as he might keep some of the additional money for himself but, for now and under the agreement, he wanted his car.
“That was sufficient to dispel my concern that the settlement agreement was not freely struck. I shall accordingly grant a decree of divorce incorporating the settlement agreement,” the judge ordered in putting an end to the 56 year marriage.
Pretoria News