My ex-wife is refusing to hand over my properties

Gaone Monau | Tuesday June 28, 2022 03:51

Dear Anonymous

My advice will generally stem from the legal perspective. It would be judicious for you to consult an attorney for specific legal advice. One of the legal remedies available to you is an application for contempt of court. The application purports that an order for contempt of court be granted against the respondent (in this case your wife). This application is made to the same court that effected the settlement agreement between you and your ex-wife into an order of the court and granted a decree absolute. A contempt of court order in this instance strives to compel the respondent to comply with the court order and grant imprisonment or suspended imprisonment. Common law providence has ordained the hereinafter elements to be present, so as for an order for contempt of court to be granted; these elements are to proven beyond reasonable doubt.

1. There should have been a court order – The Applicant who has made an application for contempt of court ought to depict that there was a court order bestowed upon the respondent, a civil order that has now been disobeyed. In the absence of a court order binding the respondent in the main action, the application for contempt of court would be devoid of legal merit and logic. From the documents you emailed, it is evident that a court order was awarded concerning the conferral of the cars and furniture by your ex-wife. It is also manifestly clear that a decree absolute has been granted in your matter and that the Respondent ought to have accordingly conferred properties that are due to you.

2. The court order must have been duly served on the contemnor; It is not sufficient to show that a court was granted; the court order ought to have been served on the respondent too. Where the court order has not been served on the contemnor, the application for contempt cannot prevail. The papers you emailed unequivocally show that the respondent was present at all court proceedings when the settlement agreement was made an order of the court and a decree absolute was rendered. Therefore, it goes without saying that the respondent was accordingly served with the court order.

3. There must have been non-compliance with the court order – An applicant in an application for contempt of court ought to substantiate beyond reasonable doubt that the Respondent failed to comply with the court order granted. It is also for the Respondent to prove beyond reasonable doubt to the honourable court that they complied with the order of the court. In your case, the absence of delivery or collection of the properties due to you in the face of many documented attempts to collect them illustrates that there has been non-compliance of the court order by the Respondent.

4. The non-compliance must have been deliberate and mala fide – The aggrieved in an application for contempt of court ought to satisfy the court, that the defiance of the court order by the Respondent was deliberate and in bad faith. On the other hand, the Respondent is duty-bound to demonstrate to the court that his/her disregard of the court was unwilful and in good faith. If your assertions that the Respondent willfully disregarded the order of the court without any justifiable reason and despite having multiple opportunities to execute are proven beyond reasonable doubt, then the Respondent will be held to have flagrantly disregarded the order of the court and therefore in contempt. Conversely, if the respondent indicates to the court that her non-compliance was unwilful and in good faith e.g., where she was bedridden from the day the court order was granted till the hearing for the application for contempt, and had no proxy to assist with entrusting of the properties to the Applicant, the court will dissent to an order for contempt of court; as long as this is proven beyond reasonable doubt.

5. Aggravating circumstances – After considering all the aforementioned elements, the honourable court may take into account aggravating circumstances that compounded the Respondent’s willful disobedience of the court order e.g consistent and unfounded attacks on the judiciary regarding the matter. Such aggravating circumstances may lead to a hike in the length of imprisonment or suspended imprisonment accorded to the Respondent.

*Gaone Monau is an attorney and motivational speaker on the areas of confidence building, stress management, relationships, self-discovery, gender-based violence and other specific areas of the law. For bookings, motivational talks, questions or comments on the aforesaid areas contact +26776548755 or laboutit22@gmail.com. Her Facebook page is Be Motivated with Gaone.