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.
Varying or rescinding a divorce order