The SABC contacted me recently to give an interview in connection with a query of a unique nature. It involved something that I have never encountered in my profession before.
A man had been married to a woman and a decree of divorce was granted. A couple of months later the man married somebody else. During the course of the marriage an application to rescind (annul) the divorce from his first wife was brought and was granted. The marriage from his second wife was then deleted from the records at the Department of Home Affairs.
The second wife was no doubt aggrieved by what had happened. The SABC wanted to know from me what her legal remedies would be in such a case. I advised them that we would first need to look at the court file to try and establish on what basis the first divorce order was rescinded, and who brought the application for rescission. A rescission of a divorce order can only take place in certain instances, for example if the correct procedure had not been followed, e.g. if somebody can prove that they did not have notification of the court date, they were unrepresented at the time of the divorce or they signed a divorce settlement agreement under duress or under influence.
My instructions in this matter were that the man had been married to his second wife in community of property. My advice was that the second wife had to be correctly summonsed. She would then have had an opportunity to enter an appearance to defend the matter, and to file a plea and a counterclaim. This never took place and she wasn't even summonsed. She merely noticed that her marriage had been deleted from the records at the Department of Home Affairs.
It was my advice further that the second wife would most likely have a civil claim for damages against her husband. The correct procedure had not been followed. If the husband had willingly consented to the rescission of the divorce order, his conduct would be tantamount also to fraud. The second wife would then also have the remedy of opening a criminal case against him.
The second wife would also be able to attack the matter from a constitutional viewpoint. There is a principle in our law known as the "audi alteram partem" principle. This means "hear the other side". Each party in every matter has the opportunity to be heard. In this particular case the second wife was never afforded any opportunity to be heard. Her marriage was merely deleted from the records at Home Affairs without her knowledge.
As I understand it the matter is currently being investigated by the Department of Justice. The second wife was never formerly divorced and neither was her marriage formerly annulled. She may well have had some kind of claim against her husband for maintenance and a division of the assets in terms of the marriage in community of property.
The above case shows that our courts must be very cautious before granting rescission of divorce orders. Home Affairs must also not simply delete people's marriages from their records. This would mean that anybody who has been divorced and remarried can simply rescind the first divorce order and have the second marriage deleted from the records at Home Affairs. This would clearly blindside a party who has not been afforded an opportunity to defend themselves, and who merely one day notices that their marriage has been deleted from the records. The person whose marriage has been deleted without their knowledge is clearly being prejudiced in such a situation, and the Department of Justice must look into this.
article written by Cape Town divorce lawyer, Peter M Baker
Marriage in community of property