A client may approach an attorney a few months down the line after the divorce to vary or rescind a divorce order. In terms of the court rules the court may vary or rescind:
an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;
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;
an order or judgment granted as the result of a mistake common to the parties.
A party who may be affected by the variation/rescission must be given notice of the variation/rescission of the divorce order. An application for variation/rescission of a divorce order must be accompanied by an affidavit setting out the reasons for the application.
An attorney is very often approached by a client after a divorce case and instructed to rescind a divorce order on the basis that that person was pressurised into signing a consent paper, or unduly influenced into signing the consent paper. Some clients allege that they were under severe emotional strain at the time of the divorce and did not act as they would normally. All the above examples may be grounds for rescission provided that the client is able to prove these circumstances.
Sometimes a divorce order may be granted without a party even knowing that it had been granted. An example of this would be where a court date is posted by registered mail to a party who never attends at the post office to collect the registered letter. Such a case would also normally make out a proper case for rescission of the divorce order.
A client sometimes contacts an attorney and requests rescission on the basis of never having received the summons. Normally this would not make out a proper ground for rescission as a judge/magistrate would never grant an order in the absence of a sheriff’s return of service indicating that the divorce summons had been personally served on the defendant.
Both attorneys in a divorce matter should take all steps to ensure before finalisation of the matter that the correct procedure had been followed and that the parties were at all time aware of what they were signing and were not unduly influenced in any way whatsoever. The attorneys should also seek to close all loopholes and settle every possible aspect of the divorce to prevent unnecessary costs being incurred in an application for rescission of or variation of a divorce order.
This article was written by Cape Town divorce law specialist, Peter M Baker
petermbaker@yahoo.com