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Divorce Order: Errors and Omissions


High Court Uniform Rule 42(1) sets out the grounds on which an application for rescission or variation of an earlier court order, including a divorce order, can be made.

Uniform Rule 42 reads in part as follows:

“42. (1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

  1. An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

[Sub-rule (1)(a) as substituted by s 17 of GN R235 of 18 Feb 1966.]

  1. An order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

  2. An order or judgment granted as a result of a mistake common to the parties.

(2) Any party desiring relief under this rule shall make application therefor upon notice to all parties whose interests may be affected by any variation sought.

(3) The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed.”

An example of an application in terms of Rule 42(1)(b) of the Uniform Rules of Court would be for example where there is a divorce order which has been granted and made an order of court, and in the settlement agreement no mention is made of the pension fund, and the parties are married in community of property. The application in this kind of case would be accompanied by a supporting affidavit. It is served on the other party, who is given 15 days after serving a notice of opposition to file an answering affidavit.

The applicant in his or her affidavit would annex the earlier divorce order. An averment would be made for example by the applicant that by mistake a clause was omitted in the original settlement agreement as to what would happen to the pension benefits which form part of the joint estate. The applicant would further aver for example that he or she was unrepresented at the time of the divorce, and was not aware that such a provision had to be clearly set out in the settlement agreement. The applicant would aver that this is a patent error and that the common intention was to divide the assets equally.

The applicant would further aver that the insertion of such a provision in the divorce order merely gives effect to the true intention of the parties. The respondent in his or her opposing affidavit would no doubt have the opportunity to oppose the application for variation of the divorce order. The respondent may for example aver that the common intention was not to divide the joint assets equally. The respondent may refer to a clause for example which states that “each party shall retain as their sole and absolute property all remaining assets whatsoever which they currently have in their possession or which may accrue to them in the future”. The respondent may aver that the intention of this clause is that he or she may retain his or her pension as his or her sole and absolute property. 

It is very important when launching an application to rescind a divorce order in the High Court to have a proper case made out for the rescission. The settlement agreement is a valid binding contract, and the courts will not easily vary it without reason to do so. If there is a clause stating that the agreement “constitutes a full and final settlement of all outstanding issues….and that save and except herein as provided, neither party shall enjoy any claim of whatsoever nature against the other”, it could be very difficult to succeed in the application for variation of the divorce order.

article written by Cape Town divorce attorney, Peter M Baker

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