High court revokes 13-year ‘fraudulent ’ divorce decree

Tina Hokwana looks at a court judgment about a marital dispute over money

Tina Hokwana Legal Practitioner
The order stated the marriage was dissolved and that the wife forfeited the benefits arising from the marriage.
The order stated the marriage was dissolved and that the wife forfeited the benefits arising from the marriage.
Image: Supplied

The Johannesburg high court has revoked a “fraudulently obtained” divorce decree granted 13 years ago because the husband never served his wife with divorce summons.

The husband could also not provide a copy of the divorce summons and details of the lawyers he used. The application for rescission was brought after the husband attempted to evict his wife from their matrimonial home.

The couple, from Meadowlands in Soweto, were married in community of property in 1981. The wife alleged that her husband abused her in the 1990s and she had to get a protection order against him which he violated in 2010.

In November that year, the husband instituted divorce proceedings in the regional court. The husband was represented by a firm of attorneys, Sarlie& Ismail Inc. In the summons, he asked the court for a decree of divorce and a division of the joint estate.

She filed a notice of intention to defend in December 2010. She filed a plea disputing the reasons for the breakdown of the marriage. She represented herself and was served with a notice to attend a pretrial conference in May 2012.

During the same month, she found a divorce decree granted in the South Gauteng High Court in her home post box. The divorce decree was granted on an unopposed basis in November 2011.

The order stated that the marriage was dissolved and that she forfeited the benefits arising from the marriage, including the property in Meadowlands and her husband’s pension fund.

She argued that she was never served with a summons out of the South Gauteng division. She contended that she was completely unaware that the husband had instituted divorce proceedings out of the high court against her while the regional court proceedings were still ongoing and that the relief sought by her husband in the high court differed substantially from the one he sought at the regional court.

In deciding the matter, the court found numerous difficulties with the high court divorce decree, and with emphasis on the importance of details in orders relating to property transfers.

Attempts were made to find the court file in respect of the high court divorce proceedings and on March 13 2023, the registrar confirmed the file could not be located.

The court said the woman was left with no option but to launch the rescission application as she was not served with the high court summons, and it would be “incomprehensible” that a forfeiture order would have been granted in respect of the property.

The court said there were no grounds for forfeiture and that the forfeiture order impacted negatively upon her constitutional rights. In opposing the application, the husband argued that he became dissatisfied with the services rendered by Sarlie & Ismail Inc.

However, he did not provide any reasons for his dissatisfaction. Furthermore, he was introduced (by people unknown) to a certain “Mr. Levin” who proceeded to institute high court divorce proceedings.

At the time, he was under the bona fide impression that the regional court proceedings were withdrawn. However, he failed to provide the court with any details regarding Mr. Levin.

The court concluded that the circumstances surrounding the granting of the high court divorce decree were suspicious, especially as the husband had neglected or refused to provide the necessary documentation, that would disprove such averments.

The court ordered that the divorce decree granted by the high court be rescinded and set aside. Further, that the transfer of the wife’s half share ownership of the matrimonial property to her husband is cancelled .

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