Is It Possible To Change A Settlement Agreement (Also Known As A Consent Paper) After You Have Been

Is It Possible To Change A Settlement Agreement Also Known As A Consent Paper After You Have Been Divorced

In recent times, unopposed divorces as they are more commonly known have become more popular. In essence what it is, is when divorcing couples decide to prepare a Settlement Agreement in which they agree on aspects regarding the minor children, maintenance and division of the estate.

According to Section 7(1) of the Divorce Act 70 of 1979, a Court is allowed to make the Settlement Agreement as signed between the Parties an Order of Court – thus enabling it to be enforced by the Court and not just between the Parties. Once defaulted on, the defaulting Party is in contempt of a Court Order which has criminal and civil consequences.

The question is, can this Agreement be varied? Practically speaking, this happens often. Parties frequently vary the Agreements after the Court has made it an Order. Section 8 of the Divorce Act[1] gives the power for an Agreement relating to contact, residency and maintenance of the Children to be varied if there is adequate reason for such. However, there is no specific allowance in the Act for the varying of the proprietary aspects of the Settlement Agreement.

As a general rule, a proprietary aspect cannot be varied after the Settlement is made an Order of Court. This was clear in the case of Georgehiades v Janse van Rensburg 2007 (3) SA 18 (C). In this case spousal maintenance (for the wife) was agreed to be paid for a period of 3 years or until remarriage, whichever occurred first. However, after three years the wife applied for the maintenance to continue. The Court found that there is no provision for this aspect to be varied after the Order had been made. Consequently, she could not vary and extend the spousal maintenance.

Whereas in the case of Bond v Bond (2009) JOL 23915 (C) spousal maintenance as incorporated in a Settlement Agreement was varied by the Court. The reason for this is the maintenance which as per the initial Settlement Agreement extended the maintenance until death or remarriage. The ex-wife then wanted to amend the amount of the maintenance. The Court allowed this, as the intention of the period was not changing, but rather the amount, sufficient reason was shown for the amount to be varied.

Further, in another case referred to as PL v YL, a couple entered into a Settlement Agreement, however, the Court refused to incorporate the Settlement Agreement as part of the Order. The Parties appealed this decision and were successful. The Appellant Court held that the Divorce Court erred in not incorporating the Settlement Agreement into the Order.

The next question most people would ask is, what happens with varying clauses relating to Pension Funds? Pension Funds in a Divorce become a rather complicated matter when dealing with said Funds. According to Section 37D (4)(a)(i)(aa) and (bb) of the Pension Fund Act 24 of 1956, in the Divorce Order the name of the Pension Fund, the amount payable and to where will it be paid must be clearly stated. Hence, if the incorrect name of the Fund has been stated or it has not been stated at all – the Courts will allow this variation of the Agreement.

It is important to note that if the Judge had said the estate is divided equally it is the intention that the Pension Fund is to be shared, that is why the Court can vary the Agreement to include the details as the Pension Fund Act requires.

Therefore, it is apparent that the Court does not have the ability to vary and amend any aspect of the Settlement Agreement. Proprietary aspects are not allowed to be amended after Divorce unless as stated as an exception that has been explained above.

It is important that Parties make informed decisions when drafting their Settlement Agreement, as it is final.

 

Aurelia Singh

Practising Attorney



[1] Divorce Act 70 of 1979