Divorce the solution to domestic issues, but what happens if I or my legal representative fail to correctly deal with all the relevant issues?
In terms of our common law once a court has granted an order it is regarded as final and can only be altered by a court of appeal. The presiding officer becomes functus officion and cannot ordinarily amend or rescind an order once it is granted, thus such judgment will have to be appealed.
However, there are exceptions to the rule. A court order can be rescinded if such judgment was given by way of default or as a result of fraud or mistake, by way of agreement, where the judgement is void ab origine or if good cause is shown. Notice must be given to all parties that has an interest in such application.
A divorce order can be amended, varied or rescinded.
It is important to apply to the correct forum when seeking amendment or variation of a divorce order to avoid unnecessary costs. In Miller v Miller A168/2013 an unreported case, the parties reached a settlement agreement which agreement was made an order of court by the Western Cape High Court. After the matter was finalized the Plaintiff issued summons out of the Somerset West Regional Court, in which she claimed specific performance for ½ of the Respondent’s annuity. The Regional Court dealt with the matter and deemed itself to have the necessary jurisdiction in terms of section 29 (1)(B). The Regional Court dismissed the matter and found that the Respondent did not breach the agreement.
The Applicant appealed to the Western Cape High Court. On appeal the High Court raised the question if the Regional Court had jurisdiction to deal with the matter? On closer inspection the High Court found that the Applicant sought a variation of the order granted by the High Court and that the Regional Court erred in that it did not have the necessary jurisdiction to hear the matter nor to amend the order granted by the High Court.
When divorce proceedings are instituted it is common practice for parties to enter into a settlement agreement, which will deal with the matrimonial regime applicable, immovable property, movable property, access to children, guardianship, pension, annuities, policies, maintenance, costs, etc.
After the parties have reached an agreement the agreement is made an order of court. In practice it does happen that these issues are not adequately dealt with and in such instances the court may be approached to vary or amend the settlement agreement which was made an order of court. Parties may by mutual consent approach the court to amend their divorce order. An application is then brought to court to either vary or amend the settlement agreement, which was made an order of court, such application must be accompanied by an affidavit setting out reasons for the amendment and justifying the variation of the order.
If one of the parties disagrees to amend or vary the settlement, the aggrieved party may approach the court on application in terms of Section 8 (1) of the Divorce Act for variation or rescission if a particular provision relates contact and access to minor children or maintenance. However if the dispute only relates to maintenance the maintenance court may be approached in terms of the Maintenance Act, it is also more cost efficient to the client.
Where parties are married in community of property the joint estate is divided equally between parties and courts are reluctant to vary divorce orders where parties are married in community of property, however it is not impossible. In a recent case BT v LB 2113/2012, the parties were married in community of property. The Respondent caused summons to be served on his wife. The summons contained no averment for forfeiture of the matrimonial benefits. On the 2nd of August 2012 the court granted a final order of divorce, and no order was made regarding the division of the joint estate. There was no deed of settlement which was filed in the court file nor which was made an order of court.
One of the major assets in the joint estate was the Respondent’s pension fund. The Respondent had been a member of the 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 ½ share of the respondent’s interest in such fund, or at least a ½ for the duration of the marriage, unless the Respondent obtained a forfeiture order against her.
The Respondent claimed that a verbal agreement was concluded between them in which the parties agreed to retain the property in their possession however his wife claimed that she had a right to institute a claim for the division of the joint estate and for ½ of his pension interest in terms of section 7 of the Divorce Act.
The court held that the order granted on the 2nd of August 2012 must be supplemented to include an order that the joint estate be divided equally between the parties and that the plaintiff is entitled to ½ 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 or any correspondence to the effect.
The most important factor for the court’s consideration in coming to its decision, 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. The High Court therefore correctly exercised its jurisdiction in relation to the division of the joint estate.
Therefore in conclusion a Divorce order may be amended or varied. However when divorce proceedings are instituted it is important to instruct an attorney whom has the necessary expertise to do deal with all the relevant marital issues correctly and properly to avoid following the costly road of amendment of your divorce order.