Variation of consent papers in divorce orders – is this permissible in law?

November 1st, 2018
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By James D Lekhuleni

Section 7(1) of the Divorce Act 70 of 1979 (the Act), provides that a court may incorporate the spouse’s settlement agreement into the divorce order if it is in writing. The court has a discretion to incorporate the terms of a consent paper. It is not compelled to do so. It is trite law that once the terms of an agreement between the parties are incorporated into a divorce order, it acquires the status of a judgment. In PL v YL 2013 (6) SA 28 (ECG) the court, per Van Zyl ADJP, held that when a consent paper is incorporated in an order of court by agreement between the parties in a matrimonial suit, it becomes part of that order and its relevant contents then forms part of the decision of the court.

Can a court vary proprietary rights in a consent paper incorporated into a final order of divorce?

The application for variation of divorce orders incorporating consent papers has been the subject of debate from time immemorial. Our courts have battled with the question whether the terms of a consent paper can be varied on application by an aggrieved party. Section 8(1) of the Act provides that: ‘A maintenance order or an order in regard to the custody or guardianship of, or access to, a child, made in terms of [the] Act, may at any time be rescinded or varied or, in the case of a maintenance order or an order with regard to access to a child, be suspended by a court if the court finds that there is sufficient reason therefor’. It is interesting to note that s 8(1) does not make provision for the variation of patrimonial consequences in a divorce order.

In Georghiades v Janse van Rensburg 2007 (3) SA 18 (C), per Griesel J, the parties were divorced in terms of an order, which incorporated the terms of a consent paper. In terms of the consent paper, the husband was ordered to pay his wife spousal maintenance of € 200 per week for a period of three years or until her remarriage, whichever event occurred first. Three years after they were divorced, the wife applied to the court in terms of s 8(1) of the Act for variation of the maintenance clause in the consent paper for the extension of the period for which maintenance was payable by the husband from the period of three years to an indefinite period until her death or remarriage, whichever occurs first. After reviewing a number of cases, the court found that s 8(1) of the Act creates an exception to the general rule that an order of court, once pronounced, is final and immutable. The court noted that it permits the court when there are sufficient reasons to rescind, vary or suspend maintenance orders granted earlier.

Summary of finding

The court eventually found that the applicant had waived her right to claim maintenance from the respondent beyond the period of three years as agreed and dismissed the application. From the above discussion, a court is empowered to rescind an order in terms of limited grounds listed in s 8(1) of the Act. Similarly, patrimonial consequences of a marriage cannot be varied or rescinded in terms of s 8(1) as no provision is made for it unless it is by consent between the parties.

In Bond v Bond [2009] JOL 23915 (C) the applicant applied for the variation of a consent paper, which was entered and incorporated into the final order of divorce. The applicant applied to have the quantum of maintenance in the consent paper increased. In this case, the respondent undertook to maintain the applicant until her death, remarriage or cohabitation in a relationship akin to a marriage. The court focused on the interpretation of one of the clauses dealing with maintenance in the consent paper. The respondent counsel argued that by virtue of the wording of the consent paper, the applicant was contractually precluded from applying for variation of the maintenance order in terms of s 8(1) of the Act. The court held that the basic principles of interpretation is that a court will always first look at the wording of the terms of the agreement that had been agreed on by the parties and, will as far as possible, give the language used by the parties its ordinary grammatical meaning unless it leads to inconsistency, repugnancy or to an outcome contrary to public policy. The court referred to s 8(1) of the Act and found that the only limitation on the court’s power to rescind or vary a maintenance order is that sufficient reasons must be shown. The court eventually found that the applicant succeeded in showing sufficient reasons and that she was entitled to apply for the increase.

In PL v YL, the two appellants were husband and wife. They were married in community of property. The first appellant (the husband) issued divorce summons against the second appellant (the wife). In his summons, he prayed for an order declaring the parties to be co-holders of parental rights and responsibilities in respect of their minor children and also for forfeiture of benefits against the second appellant arising from their marriage in community of property. On divorce, the two appellants entered into a settlement agreement. The parties agreed that the divorce would proceed on an unopposed basis and that the court would incorporate the settlement agreement of the two appellants.

The agreement dealt with the care and contact, as well as the division of assets of the parties. When the divorce was heard on the unopposed roll, the court refused to incorporate the deed of settlement signed by the parties and granted the orders in terms of the first appellant’s particulars of claims. On appeal to the Full Bench of that court, the court among others, investigated the notion of settling disputes by agreement as opposed to litigation and also considered circumstances under which settlement agreements may be varied. The court stated that s 8(1) of the Act provides for the variation of a maintenance order, but not of an order dealing with a division of assets of the parties. The court went on to say that this means that the court is excluded from ordering a variation of any settlement relating to the assets of the parties and in the absence of an agreement to the contrary to seek such an order. The court found that the court a quo was wrong in refusing to incorporate the settlement agreement. The court eventually set aside the decision of the court a quo and incorporated the consent paper into the final divorce order. From the above discussion, I submit that the court’s power to vary a consent paper incorporated into the final divorce order is limited. A court cannot vary the division of assets in a consent paper through an application for variation by one of the parties. A consent paper is a contract between the parties and it is binding and can only be set aside or rectified to reflect the intention of the parties in terms of the common law principles. As explained above, a consent paper constitutes a final agreement between the parties and for a court to interfere with it would fly in the face of the hallowed principle that the court cannot make contracts for parties. By mutual agreement the parties may apply to vary a consent paper, which was incorporated into the final order of divorce in circumstances where the order through error or oversight does not correctly reflect their agreement. A court may also vary a consent paper in cases of maintenance, care and contact of minor children in terms of s 8(1) of the Act if there are sufficient reasons shown. If the variation involves the care and contact of the minor children, the Family Advocate would have to be involved and their recommendations will be considered by the court.

Variation of divorce order to reflect the correct names of the pension fund

The variation of divorce orders to reflect the correct names of a pension fund of the member spouse are prevalent in our courts. In GN v JN 2017 (1) SA 342 (SCA) the Supreme Court of Appeal (SCA) found that the pension interest of a member spouse as at date of divorce is by operation of law part of the joint estate for the purpose of the division of the assets between the parties. In other words, where the court directs that the joint estate is to be equally divided, this automatically includes pension interest of the parties. This suggests that even if there is no pronouncement on pension interest on divorce, the order for the equal division of the assets will automatically include pension interest. However, in terms of s 37D(4)(a)(i)(aa) and (bb) of the Pension Funds Act 24 of 1956, the pension fund must be named or identifiable on the decree of divorce before a deduction is made in favour of the non-member spouse. The pension fund will not be bound to deduct payment if the final order of divorce does not identify it in terms of s 37D. Unfortunately, the SCA did not consider the provisions of s 37D(4)(a)(i) in the GN v JN case.

I, therefore, submit that in those circumstances, a non-member spouse is allowed in law to bring an application for the variation of the order to reflect the correct name of the pension fund. Even in cases where a consent paper was signed, the non-member spouse can have the consent paper corrected or rectified to reflect the correct names of the pension fund as a result of a common mistake between the parties. However, where the parties have agreed on the percentage payable to the non-member spouse, the latter is precluded to approach a court for variation for a higher percentage than the one agreed on unless they were coerced, or the agreement was entered into by fraudulent means.

Conclusion

From the above discussion, it is abundantly clear that our courts have limited power to revisit and vary orders, which they pronounced. Where a consent paper disposes the issues between the parties they raised in the action, it would in most cases constitute a compromise (transactio) – see PL v YL at para 9. In summary, s 8(1) of the Act sets out the limited grounds under which a court may be approached to vary its order. A consent paper that was signed by the parties when the divorce was granted is binding between the parties and can only be varied in terms of the limited grounds listed in s 8(1) of the Act. Furthermore, a consent paper can also be varied under common law grounds, namely, fraud etcetera. A litigant cannot approach a court to vary the patrimonial consequences incorporated in a consent paper, which was made an order of court at divorce unless it is by mutual consent. However, if the consent paper does not reflect the true intention of the parties, the court may order rectification of the agreement. Where the matter was finalised without a consent paper filed, a party who is not satisfied with the decision of the court can appeal against the decision of the court a quo and not apply for variation of the order.

James D Lekhuleni BProc (UNIN) LLB (UL) LLM (UP) LLM (UP) LLD (UWC) is a regional magistrate in Cape Town.

This article was first published in De Rebus in 2018 (Nov) DR 26.

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