West African couple go head to head for Constantia property in divorce settlement

CAPE TOWN - Half of the sale proceeds of a Constantia property, is the centre of a divorce settlement between a couple who now currently live in different countries in West Africa.

The applicant - not named in court papers and who currently lives in Senegal - had applied for the recognition in the Western Cape High Court of an order that she obtained in the Senegalese courts dissolving the marriage between herself and the respondent - who currently lives in Nigeria.

Presiding Judge, Ashley Binns-Ward said: “The order directed that an equal division of the parties’ property should follow in accordance with what the Senegalese court apparently accepted had been the parties’ marriage in community of property. The local significance of the order concerns its bearing on the proceeds of a property in Constantia formerly registered in the respondent’s name that has recently been sold.

“The applicant lays claim under the Senegalese order to half of those proceeds. An order was taken by agreement in this court earlier this year sequestering the proceeds pending the determination of the application for the recognition of the Senegalese judgment,” said Binns-Ward.

According to court documents, divorce action had been delayed when the woman averred in her founding affidavit that her ex-husband tried to evade the divorce proceedings by ignoring papers served to him.

“The applicant explained in her founding papers that the divorce order was taken ‘by default’ after the respondent, allegedly evaded service of the process instituting the proceedings. She averred that the Senegalese court was prepared to grant the order after being furnished with evidence establishing that the respondent and his legal representatives were aware of the divorce proceedings and had withheld their cooperation concerning service of the papers.

“The Senegalese order was issued at a time when there were also pending divorce proceedings instituted by the respondent against the applicant in the Nigerian courts. The respondent is opposing the application for the recognition order. He, however, failed to deliver his answering papers in time, and it became necessary for the applicant to obtain an order through the chamber book putting him to terms. His answering papers were put in a day after the expiry of the period afforded to him in the order made in the chamber book,” said Binns-Ward.

Meanwhile, the ex-husband gave notice that he would move his application for condonation (late referral of dispute) at the hearing of the main application. The applicant continued to withhold her replying papers, taking the position that she was under no obligation to do so until after the applicant had been granted condonation for the late delivery of his answer.

Judge Binns-Ward then ordered, among other items, that the current application for the split of property sale is postponed for hearing to May next year while the ex-husband is granted leave to deliver supplementary answering papers to update the evidence since his answering affidavit was delivered.

Cape Times