A woman who believes her husband abandoned her and their children with no support, should lose everything lose everything during a divorce settlement.
According to court papers, the husband disappeared sometime in March 2023.
The couple have been married in community since July 2007.
Following the husband’s disappearance, the wife sought relief at the South Gauteng High Court in Johannesburg where she filed for divorce and wanted an order of forfeiture of patrimonial benefits against the husband.
She also wanted to be awarded primary custody of the children.
To further support her application, she said the husband absconded from the common home and left her to fend for herself and three minor children.
Given the circumstances, she said the husband would be unduly benefiting if he did not forfeit his patrimonial benefits from the marriage.
She said she was unaware of his whereabouts and didn’t have his contact details.
She added that she made numerous attempts to locate her husband by checking in with family, friends as well as hospitals and mortuaries and has been unsuccessful in doing so.
In response to her application, the judge was not impressed with the lack of evidence the wife had presented.
“In the absence of evidence, there is an inadequate basis to find that the husband absconded rather than passed away. This is particularly so as the wife herself appears to be uncertain as to which of these is the position,” said the judge.
The judge said the wife claimed to have made numerous attempts to locate the husband but a tracing report was not attached.
“No information is given as to which friends and family members were approached and why it may be that the husband would abscond, with no warning to any of his friends or family, or any subsequent contact. In contrast, should the husband have died, that may explain why there has been no such contact,” added the judge.
The judge said if the husband is dead,the circumstances would be different such that the marriage would be dissolved by death and a divorce order cannot be granted.
Even regarding an order relating to the custody of children, if the husband is dead, the wife would be the surviving parent with the parental responsibilities and rights.
“If the husband has died, the distribution of the joint estate would then take place in terms of the laws of succession and not by way of a divorce order,” added the judge.
The judge removed the matter from the divorce roll to enable the wife to supplement her papers.
sinenhlanhla.masilela@iol.co.za
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