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Change divorce order without court application

A divorce order can only be changed if you apply to court by means of a formal court application to change it. However the recent decision of GF v SH and Others 2011 (3) SA 25 (GNP) decided that a settlement agreement in a divorce that was not varied by a formal application to court, may be varied by agreement between the parties, without formally applying to court to vary such order.

In the abovementioned case, a couple had been married in 1992, and divorced in 2002. A settlement agreement had been signed between the parties, in terms of which the wife was awarded custody of the two children subject to the husband's rights of reasonable access to the children. In terms of the divorce settlement agreement, the husband was ordered to pay R 5 000 maintenance per month per child. This was to be increased according to the consumer price index. The husband was also ordered to pay the educational and medical expenses of the minor children.

After the divorce a mediator got involved. There was decided between the husband, wife and mediator that the children would spend more time with the husband. The husband started paying less maintenance than he had to in terms of the court order. The purported mediated agreement was never signed, and no application was brought to court for the variation of the original divorce order.

The wife later claimed that the husband was in arrears on his maintenance in terms of the original divorce order. Eight years after the divorce, the wife issued a warrant of execution against her husband in the sum of
R 303 155 plus interest and costs for arrear maintenance and non-compliance of the divorce order. The wife attached certain goods belonging to her ex-husband. The ex-husband's argument in this matter was that his liability to pay maintenance had been varied by agreement between himself and his ex-wife, as they had reached an agreement relating to the change in residency arrangements in respect of the minor children.

The original settlement agreement had contained a non-variation clause. This basically means that the terms of the settlement agreement could not be varied. The court pointed out that the principle of non-variation of a written agreement in the context of a "non-variation except in writing clause" was firmly established in Shifren and Others v SA Sentrale Ko-op Graanmaatskappy Bpk 1964 (2) SA 343 (O). In our law this is something known as the "Shifren Principle". According to this principle any attempt to agree informally to vary a contract containing a non-variation clause must fail.

The court found in the GF v SH case that there are exceptions to the Shifren Principle. One such exception is where public policy dictates a departure from the principle. The court found that in the present case the clause relating to maintenance in the divorce order could indeed be amended by oral agreement between the parties, having regard to the dictates of public policy, provided that the best interests of the children are upheld. The court found that the ex-wife's writ of execution had to be set aside, as no consideration was taken of the mediated agreement, and the amount in the writ of execution was accordingly incorrect.

The above case is a very interesting case, and will definitely set a precedent for other cases. A settlement agreement can be varied by agreement between the parties without formally applying to court.

In Community - Amendment dividing the Joint Estate

A recent case,heard on 21 February 2018 in the Free State Division, Bloemfontein, of the High Court, dealing with amendment of a final divorce order, is that of BT (applicant)and LB (respondent), under case number 2113/2012.

The parties had been married in community of property on 24 September 2008. The respondent was the man and he had had a summons served on his wife which had no claim for forfeiture of the benefits of the marriage in community of property. No notice of bar was filed by the respondent.

On 2 August 2012 the court granted a final order of divorce, and no order was made as to how the joint estate should be divided. There was no deed of settlement which was filed in the court file or which was made an order of court. The court made no mention either of any verbal agreement entered into between the parties.
One of the major assets in the joint estate consisted of the Transport Pension Fund of which the respondent was a member. The respondent had been a member of the aforementioned fund throughout the course of the marriage, and his interest in the fund therefore fell into the joint estate. In the normal course the applicant would be entitled to a half share of the respondent’s interest in such fund, or at least a half share for the duration of the marriage, unless the respondent obtained a forfeiture order against her.

The man claimed the existence of a verbal agreement to the effect that each party would retain what was currently in their possession in consequence of which the divorce order dated 2 August 2012 was granted. His wife claimed that she had a right to institute a claim for the division of the joint estate for half of the man’s pension interest in terms of section 7 of the Divorce Act 70 of 1979 pursuant to the decree of divorce being granted.

The court ordered in the end that the order granting the decree of divorce on 2 August 2012 be supplemented to include an order that the joint estate be divided equally between the parties and that the plaintiff is entitled to 50% of the defendant’s pension interest calculated as at the date of divorce.

In coming to its conclusion the court found that the respondent was unable to produce any written agreement between the parties. Furthermore the court found that there was no evidence of a verbal agreement either in the form of a witness or a record of proceedings from court. The court also found that there was no evidence in the form of correspondence with regard to settlement negotiations nor was such alleged settlement agreement made a part of the divorce order.

In my opinion the most important factor for the court’s consideration in coming to its decision, which is the correct decision in my opinion, is that the order as is effectively places the applicant in a position as if a forfeiture order had been granted against her, but the evidence establishes no claim for forfeiture against her. One of the invariable consequences of a marriage in community of property is that the joint estate be divided when the marriage is dissolved and the initial order was absent on any division of the joint estate. The High Court therefore correctly exercised its jurisdiction in relation to the division of the joint estate,

Related articles

Varying or rescinding a divorce order

The "Apostille" of the final divorce order

The final divorce order


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