Good day, I am married now for almost 25...

Asked by Elize on 26-02-2015 09:19:40
Question posted in the Family Law category relating to Gauteng
Question value: R 300.00

Good day,

I am married now for almost 25 years. Last year May I found out that my husband also have another child of 15 year of age which is also a disabled child. The mother of that child was peviously married to my husbands best friend. They got divorced about 7 years ago. She did sue her husband for maintenance of the child and then he have done DNA tests on the child and find out that this isn't his child. And then she turned to my husband and ask for maintenance of R4000 of which my husband start paying, after he have done the DNA test. This amount was not issued by any Court. The mother also told the child that his father is dead. We also received a letter from the other man suing us for R100000 for his lost of growing up the kid.
My husband has his own business and I am working for him for about 10 years. I don't have my own work so if I divorced there will be no income. We are married in community of property. We hve 3 children, of wich 2 are older than 21, and only kid left which is 8 years old.

What can I do? I am in the middle of a sick family circle. I don't like to pay for other womans children.

Please can someone gave me more information I will appreciate.



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Answer to the Question

Posted by Att. Patrick on 26-02-2015 12:48:42
Hi there and thank you for your question,

First, I'm sorry to hear about your situation. This is never nice!

Second, since you are married in community of property there is a joint estate. You and your husband own everything (house, cars, furniture, business, etc) 50/50. If you get divorced you will have a claim to half of everything.

Third, it is unfortunately correct in law that your husband's child (the one with the other woman) will have a claim against your husband for maintenance. If he has been paying R4000 per month, then he should continue doing so. If he stops he runs the risk of the other woman going to court for a maintenance order. Your husband should however keep careful track of when payments are made and in what amount so that if she ever goes to court he can prove that he has in fact made payments in the past! You won't be able to get out of paying for another woman's child - since the child is also your husband's, and you are married in community of property...

Fourth, the other lady's husband's claim against your husband for R100,000 is a silly and bad claim in law. It will go nowhere. Any claim that he might have for money that he spent on the child because he thought that it was his child, will be a claim against his ex-wife! Not against your husband.

If your husband wants something to do with the child, then he needs to assert his rights of access. The other woman can't tell the child that his father is dead. If the other woman is refusing access, then your husband needs to go to the maintenance / family Court and ask for assistance in a child access case. The clerk of the court will asist in applying for access! 

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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Information provided by client

In case I want to settle for a divorce, what is my rights?

Answer to the Question

Posted by Att. Patrick on 26-02-2015 19:38:34
Hi there,

Basically you have the right to a 50/50 division of assets, and you have the right to reasonable maintenance from your soon-to-be ex-husband. The maintenance will depend on your reasonable requirements taking into account his ability to pay, and also your previous lifestyle.

Information provided by client

Hi

Thank you for your help. Just 1 last question if we have already start paying off on the claim from his friend can we now just stop paying?

Answer to the Question

Posted by Att. Patrick on 27-02-2015 11:40:50
Umm... yes, because there is no legal obligation on your husband to settle it. But your husband might have agreed to settle it, and then the question is whether the other man will sue your husband based on the oral agreement/undertaking to pay! So, basically your husband might have made things worse by agreeing to the other man's demands. Your husband's defence might be that he agreed to pay because it was based on a misunderstanding of the law - i.e. that he doesn't need to pay. But the other man might then agrue that your husband should have taken legal advice on what he must do... and now there is an agreement in place!

Answer Accepted

This answer was accepted on 27-02-2015 11:46:19

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