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Family Law Case Summaries 1
N was appointed as an Executor to the Estate of the late S. S had left a house where one M, a relative to S, was staying. N apparently sold the house of the Estate without the Authority of the Master of High Court and without any consultations with the beneficiaries of the Estate.
N filed a Court Application for the eviction of M. M approached our offices seeking assistance to defend the claim against eviction.
The main defence raised by M was that though technically on paper, the appointment of N as the Executor seemed to be above board there were a lot of grey areas that needed to be attended to.
1. The Executor (N) was not related to the beneficiaries of the Estate and hence he was appointed through fraud.
2. The said Executor was a fugitive from the Master of High Court in that he sought to evict M when he did not have authority of the Master of High Court to deal with the house in question.
The court dismissed the Application for eviction and the main reasons advanced by the court were as follows:-
(a) N was approaching the court with dirty hands in that he had not subjected himself to the control of the Master of High Court.
Family Law Case Summaries 2
Our client X got married to J in Botswana. X is the wife and a Zimbabwean national. J is a Motswana National but had relocated to South Africa after their separation to an unknown address.
X approached our offices to help her file for Divorce and in doing so we had to involve the provisions of Section 3(1) (c) of the matrimonial causes Act which provides for the Additional Jurisdiction of the High Court when the wife is the Plaintiff.
Furthermore, since the whereabouts of Y were unknown, we had to apply to the High Court leave to serve Y with summons for divorce and any other court papers through advertising in a newspaper that circulates widely in South Africa.
We proceeded through advertising every stage of the court proceedings up until the matter was set down and a Decree for Divorce and Ancillary Relief was granted.
1. In an action for a Decree of Divorce, Plaintiff has to properly plead jurisdiction of the Court, that is, show how the court has jurisdiction to entertain the Divorce proceedings
2. If the Defendant’s whereabouts are unknown court papers can be served through advertising in a newspaper that circulates widely and it is accepted as proper service of court processes.
3. Even if Y does not respond to the summons for Divorce, the court can go ahead and grant a decree of Divorce once X proves that she sent Y a Notice to Plead and attaches the relevant proof of service and further that after receiving the set down date from the Registrar, she sent the Notice and attaches proof of services.
Family Law Case Summaries 3
P and Q were married in terms of the Marriages Act Chapter 5:11 and the marriage still subsisted.
P approached our offices to help her file her Divorce.
After filing and issuing summons for Divorce, Q was served with the summons and he indicated he was not opposed to the Divorce.
P and Q therefore agreed on how they intended to share the property they acquired during the subsistence of the marriage. They also agreed to the issue of maintenance of the minor children.
P and Q therefore filed their written agreement to court for consideration by the court in making a determination on Divorce.
When the matter was set down for hearing, a Decree for Divorce and Ancillary relief was granted according to the terms of agreement before P and Q.
Parties to divorce proceedings can agree on how the Divorce and Ancillary relief can be handled and the court will respect the agreement between the parties and order for a decree for divorce and ancillary relief in terms of the agreement between the parties.
Family Law Case Summaries 4
A and B were married in Zimbabwe in terms of the Marriages Act Chapter 5:11.
A approached our offices asking for help to file for Divorce because the marriage relationship between the parties had irretrievably broken down to such an extent that there were no prospects of restoring a normal marriage relationship mainly because:-
- A and B had not lived as husband and wife for a protracted period of more than 12 months preceding the date of issue of summons for divorce.
- A had lost all love and affection for B.
When A approached our offices, we drafted summons for divorce and after filing them at court, we engaged the Sheriff of the High Court to personally serve the summons on B.
When B received the summons, she ignored them and never filed any response so A approached the court and filed for a Notice to Plead and Bar which was again served on B but still, B ignored the court process and never filed any response nor engaged in talks with A.
When the matter was ready for set down, A sent the Notice of Set-down again to B who did not turn up for court and the Divorce had to proceed as an unopposed application and was granted.
If as a party to any divorce proceedings you receive summons and any other notifications of court proceedings decide not to file any response, the process will go ahead without the said responses and an order will be granted in favour of the party who has filed for divorce.
Attorney In This Case:
Evidence Gonesi
Associate
Evidence Gonesi, LLB Hons (University of Zimbabwe). Passionate about: Labour, Criminal, family, Company, Property, Commercial law