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Property in your spouse's name

I REGISTERED A HOUSE IN MY WIFE’S NAME BEFORE WE GOT MARRIED WHICH I PAID FOR. SHE NOW CLAIMS THAT IT’S HERS. WHAT ARE MY RIGHTS?

A client consulted me recently relating to the abovementioned query. He was deeply in love with his fiancé, and registered a property in her name. At that stage he did not foresee the possibility of a divorce. He instructed me that the agreement then was that it would be his property if they ever got divorced, because he had paid for it.

A further problem for my client was that a few days before the wedding, he had been requested by his in-laws to sign an antenuptial contract. My instructions were that he naively agreed to sign it. He says that he attempted to include a clause stating that the property belonged to him, but that the clause was not included in the end.

A further problem for my client as per my instructions, was that the attorney who had drafted the antenuptial contract had made a few mistakes in it. My instructions are that my client had wanted to get married excluding accrual, but that the way it had been drafted was with accrual. This no doubt meant that his wife would share in any potential growth of his estate if they ever got divorced.

As appears from the above, my client had made a few grave mistakes in his decision making. The parties also had a young child together, which further complicated issues. My instructions were that the property had been bought for the benefit of the minor child, and that now his wife wanted to divorce him and keep the property.

There was a certain amount of pressure exerted on my client just before he got married to sign the antenuptial contract, and he verily believed that he would be married forever.

Even though the property was not mentioned as being specifically retained by him as his sole and exclusive property in the antenuptial contract, the fact that he had paid for the property was certainly relevant should he decide to divorce his wife.

My instructions to him were that we instruct an advocate to institute a High Court action against his wife to have the property transferred into his name or into the name of a trust for the minor child’s benefit. It is obvious that his intention was that the property was meant for the minor child’s benefit. His wife appeared to be in a situation where she may be unduly enriched, being the owner of the property, where she did not contribute financially at all. He had a strong case to have the property transferred out of his wife’s name.

This article was written by Cape Town divorce lawyer, Peter M Baker

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