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Enforcement of judgment in family law matters : A reflection published on 8 November 2017

Unless one is a registered legal practitioner, the courtroom seldom becomes a common place even to settle scores. It is no small feat to institute legal action or to stand before the court being the one answering to a claim. Once a matter has been finalised, there is a misperception that the matter is simply laid to rest and no further action should be taken.

Many people perceive the law to be self enforcing and sometimes neglect to take further action once the court has ruled in their favour. There is a statement at law which speaks to the effect that the law serves the vigilant. That means that one has a better chance at being adequately served by the law when they report early and ensure that they follow through on whatever outcome the court realises.

Once a judgment is passed, it determines each party’s rights and obligations. If money is owed the judgment will state who when and how the money should be paid, if property should be returned the law will provide the same information; who, when and how. Some, after the judgment is passed; and often to their detriment simply acknowledge that a judgment is present and assume that everything has been resolved in court.

Needless to say that the judges themselves cannot physically be present to help one retrieve property or assume custody of the child after the judgment has been given.

Some people have been unfortunate enough to assume that nothing further is required of them once a ruling has been passed. Take the case of Nyarai who in 2000 filed for divorce and other ancillary relief. In 2001 she was awarded 40 percentof the matrimonial home which during the subsistence of the marriage was registered in her husband Totonga’s name. After her divorce, she continued to live in their matrimonial home.

In 2012, Totonga decided to get a loan from Barclays Bank using that same house as security. It is 2017 and Totonga’s failure to pay off the loan has resulted in the bank seizing the house and selling it off to another couple to recover the debt. Nyarai wakes up to a letter from the lawyers representing the bank that she has to move out of the house within 7 days.

This situation is not peculiar to Nyarai alone. Many people have found themselves in the same shoes oftentimes with little to no options. Had Nyarai been vigilant and more aware, she would have done things differently over 16 years ago.

In a divorce order where there is a house to be shared among other things; the court usually gives the parties to the divorce options. They may have the option for one to buy the other out so where one is awarded 40 percent, they can buy the rest of the 60 percent share from their ex-spouse. They may have the option to sell the house and share the proceeds according to the shares that the court would have awarded. They may even have the option to be jointly registered in a property though divorced couples rarely choose this option.

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