How to find a divorce lawyer in Cape Town, South Africa

Vary or rescind a divorce order

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:

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

  2. 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;

  3. 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.

Varying in the event of material change

Rule 43(6) of the court rules provides as follows “The court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party or a child, or the contribution towards costs proving inadequate”.

At the main Rule 43 hearing in one of my recent matters my client was awarded R22 000 maintenance per month for herself and the two minor children. My client’s husband then brought the Rule 43(6) application a few months after the main Rule 43 hearing. The Rule 43 application is a contribution towards maintenance and costs usually.

The husband in his papers sought an order that he pay his wife an extra R3000 maintenance per month, but that she and their two children be evicted from the property they were residing in. The parties were married with accrual, and the husband had sold the farm to his mother, as per my instructions. My client was not happy with this as she had not consented to that, and was running cottages from the farm.

My instructions were to oppose the application. My client could not afford to pay her rent elsewhere only on a mere R3000 extra per month. She was unemployed too, whilst her husband earned a lot working overseas.

The parties also owned another property with a big bond over it, and during settlement discussions the other side proposed at one stage that our client could go live there, and her husband would continue paying the bond until the divorce went through. Our client wasn’t happy with that, as the divorce trial date had been set for only a few months after the Rule 43(6) Application, and she could not afford to pay the bond as she did not earn much money.

We weren’t able to settle outside court, and the matter was eventually heard in an open court. The court dismissed the eviction application with costs in our favour. One of the points made by the judge was that the fixed property had been sold not to an unknown party, but to the man’s biological mother. The judge also remarked that at the time he sold the property to his mother, his mother knew that my client was living there, and that our law cannot force her to move out now.

The court also looked at the fact that the trial was only two months after the Rule 43(6) hearing, and the judge could see no reason why this aspect could not be dealt with at the trial. This seemed logical and fair enough to me.

In order for the Rule 43(6) Application to have been successful the husband would have had to prove a material change to have taken place. The husband’s argument was that the wife had removed the children from the local school and was now doing home-schooling with her. He said that she was saving money now by not having to pay normal school fees and that she did not need all the maintenance money he was paying her. The court rejected this argument. It wasn’t sufficient to vary the order.

This application was heard in the High Court. It also shows the extent to which the court goes to protect a woman and her children by not evicting them. Courts don’t easily evict people, particularly where minor children will be affected. All in all, I think the court made the correct decision by dismissing the application.


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