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Divorce: Domestic worker as witness


Domestic workers are part of our everyday life and can provide more intricate details of our daily lives and relationship. Their evidence in a divorce trial, rule 43 application or any other divorce matter can prove most invaluable.

Upset couple sitting on a couch.

In any legal matter affidavits are used frequently to prove or disprove a party’s case. An affidavit is basically a legal document signed by a party before a commissioner of oaths and has the same affect as that party stating something in a court of law.

A person’s case in a divorce trial or protection order matter depends on the evidence. The domestic worker is often the only person who can give evidence on what goes on in the parties’ household, who is responsible for the domestic violence, if there was in fact domestic violence which took place, who primarily looks after the child / children and which party is the one who does most of the work.

In my career I have seen domestic workers give evidence in criminal cases of alleged assault where the one spouse opens an assault case against the other spouse and the domestic worker was the only party who witnessed what transpired. I have also seen how in another case where the lady alleged that she was spending a certain amount per month on a domestic worker in her rule 43 application, which amount my client denied, and we then in our opposing papers got the domestic worker to sign an affidavit as an annexure, stating what she was really earning.

The affidavit of a domestic worker was also used in one of my more recent cases. The lady had launched a rule 43 application against my client, asking for relief which included monthly maintenance for the six year old boy born of the marriage, as well as primary care of the boy pendente lite (while the divorce is underway and until a divorce order has been made final and the court has made a decision on which parent should be awarded primary residence).

My client was of the view that he was a better parent. There had not been a divorce summons yet in this matter, but only the rule 43 application served on my client by his wife. My client requested me after we had served our opposing papers to the rule 43, to have a divorce summons served on his wife, wherein he asked for primary residence of the minor to be awarded to him.

One of the averments made by the applicant in her rule 43 application was that she was the primary carer of the minor, who was closely bonded to her. She averred further that she had reservations about how much contact my client should be given to the minor child, as she did not know where he lived, and the boy had never spent time alone with my client.

As usually happens in matters of this nature, my client no doubt had a totally different version as to who was the better equipped parent to be awarded primary care. In his version, his wife had a drinking problem, and often neglected the minor. The only witness really to prove or disprove the case of either party was the domestic worker.

On my instructions the affidavit of the domestic worker was drafted and annexed to the opposing rule 43 affidavit. In this affidavit the domestic worker gave evidence as to how the child slept with her and how the applicant arrived very late during the weekends and intoxicated. She averred that this concerned her as the child was still very young. The domestic worker further averred that she did not believe it to be in the interests of the minor that care be awarded to the father.

In this case the evidence of the domestic worker swung things very much in favour of my client both in the main divorce action and in the rule 43. One must always get the best possible evidence even if it is from a domestic worker or the “man on the street”. These witnesses often give the best evidence.


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