share of assets pending divorce proceedings

I am a UK citizen and got married in London to a South African citizen in 1994.

We resided in the UK (1994 to 1996), South Africa (1996 to 1999), UK (1999 to 2001). Our two children were born in the UK and have dual nationality. Whilst in the UK my wife did not work. I had substantial assets before I got married and have added to this subsequently.

In 2001 my wife unilaterally decided to return to South Africa and took the children with her. I remained in the UK where I have a business. I visit South Africa (I have been granted South African residency) about 6 times a year and spend on average 6 months there.

In South Africa, I purchased a guesthouse in Cape Town as well as a house in Johannesburg and registered my wife as the owner. Mortgages were raised in her name with me being the guarantor. I provided the deposit, paid for substantial renovation costs, borrowed funds to pay for the renovations and also to meet mortgage payments and managed the guesthouse.

I have been paying substantial maintenance every month to my wife and the children for the last 7 years. My wife has been working for the last 3 years but keeps her earnings in a separate account of which I have no knowledge.

My wife is now demanding a divorce and is claiming all the substantial sale proceeds of the guesthouse. Her argument is that she is the registered owner and English Law allows her to keep the proceeds (as our marriage is out of community of property, not subject to accrual). In other words, what is "hers is hers" (ie in South Africa) and what is "mine is mine" (ie in the UK).

Your advice, will be helpful, on whether:
1. I have any entitlement to the sale proceeds from the guesthouse (as mentioned besides putting her name on the mortgage application her financial or physical input has been minimal)
2. What rights I have as regards
(a) custody rights (my son is 14 years and daughter 12 years)
(b) visiting rights (my wife has made it clear that I can not stay in our house in Johannesburg and should book into a hotel)
(c) taking my children on holidays abroad
3. can my wife instigate divorce proceedings in South Africa?

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Hi UKSA,

I think the first thing to establish is which country's court has jurisdcition over the divorce. Certainly the UK has as the marriage took place there. The South African court may have too as it appears from what you say that most of married life was spent there.

Where both countries' courts potentially have jurisdiction, I think it is the court to which divorce is applied for first that decides it.

I have no idea about SA divorce law, but under UK law a 14-year marriage would lump all assets together into a joint 'pot' to share out according to the respective parties' needs (ie the parent with care of the children would get more). An equal division is not always possible simply because there usually isn't enough money to go round or one party has a good barrister.

Be prepared for the possibility of spending a fair amount of money on legal fees but one way to cut down is to visit a specialist legal bookshop or Law Library and check whether there is a UK-SA agreement on divorce law and do as much research as you can yourself, not to mention the option of petitioning for divorce in the UK.

Under UK law you can take children on holiday abroad by agreement and the children do have a right of contact with you, where you stay is your business and your wife is within her rights to refuse you access to her home unless it is jointly owned by the two of you - even then I wouldn't recommend you forcing your way in against her wishes - there is a difference between what is legal and what is just.

You could also argue for custody of the children in the UK, but in the circumstances you describe I'd think you'd have to prove that their staying with their mother would be detrimental to them in addition to their staying with you being better for them.

I am sorry I cannot be of more help.

YA