Vary a divorce order

Why and how to vary a divorce order

When you divorce, the divorce order is a final and non-negotiable legal document…or is it? Are there circumstances in which you might want to vary a divorce order? And is it allowed in law? The answer to both these questions is “yes”, but certain conditions apply. 

Divorce is an emotional process that can affect numerous aspects of life, from financial arrangements to child custody agreements. In South Africa, divorce orders are legally binding documents that dictate the terms of separation between spouses. However, life circumstances can change over time, necessitating modifications to these orders. In this article we’ll explore the reasons for varying a divorce order and look at some circumstances when modifications may be required, as well as some real-life examples.

Change in financial circumstances

One of the most common reasons to vary a divorce order is a significant change in the financial circumstances of either party. This can affect various aspects of the divorce settlement, including maintenance arrangements, property division, and pension splitting. For example, at the time of divorce, one spouse has a stable job with a substantial income. The other spouse is dependent on the employed spouse and a maintenance award is made as part of the divorce agreement. However, the “paying” spouse loses their job due to unforeseen circumstances. In this scenario, the paying spouse may apply to the court for a reduction in maintenance payments to ensure they can still meet their financial obligations.

In a case from 2007, a couple was divorced in terms of an order, which incorporated the terms of a consent paper. The consent paper ordered the husband to pay the wife spousal maintenance for three years or until she remarried, whichever happened first. Three years after the divorce, the wife applied to the court for a variation of the maintenance clause in the consent paper, to extend the period of maintenance indefinitely until her death or remarriage. After reviewing a number of cases, the court noted that it is permitted to rescind, vary or suspend previously granted maintenance. However, in this case, the court found that the wife had waived her right to claim maintenance from the husband beyond the period of three years as agreed and dismissed the application. But the precedent was established: a court is empowered to rescind an order in terms of limited grounds listed in the Divorce Act 70 of 1979 (“the Act”).

In another case from 2009, a divorced wife applied for variation of a consent paper, which had been incorporated into the final order of divorce. She applied to have the amount of maintenance in the consent paper increased. Maintenance had been granted until her death, remarriage or cohabitation in a relationship similar to marriage. After considerable debate on the wording and interpretation of the consent paper, the court decided that the only limitation on the court’s power to rescind or vary a maintenance order is that sufficient reasons must be shown. In this case, the court judged that the wife had shown sufficient reasons and was entitled to apply for an increase in the amount of maintenance.

Child custody and parenting plans

Child custody arrangements are a crucial part of divorce orders when children are involved. Over time, circumstances may change, requiring amendments to the initial parenting plan. For example, a couple may agree to share custody, and their children spend equal time with each parent. However, if one parent relocates for work or other reasons, the arrangement will need to be changed. The parents may seek a modification to the custody agreement to accommodate the new circumstances. If there is a parenting plan, it will need to be revised to reflect the altered arrangements. In some cases, depending on the relationship between the parents, the Family Advocate may need to be involved in negotiating or approving the parenting plan. If the parents can’t agree on the varied terms, the Family Advocate would be requested by the court to make recommendations. 

Section 8(1) of the Divorce Act 70 of 1979 says 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.”

Child support

Similarly, child support arrangements are often included in divorce orders to ensure the children’s financial needs are met. Changes in either parent’s financial situation can impact the amount of child support required. For example, If the custodial parent experiences a significant decrease in their income or increase in living expenses, or if they incur unexpected medical expenses for the child, they may request an increase in child support payments from the non-custodial parent, as permitted by the Divorce Act.

Pension splitting and retirement funds

In divorce cases, pension funds and retirement benefits acquired during the marriage may be divided between the spouses. Changes in the pension or retirement fund landscape may necessitate adjustments to these arrangements. This happened when the “clean break” principle was introduced in 2007 as an amendment to the Pension Funds Act 24 of 1956. The clean break was intended to eliminate post-divorce disputes over pension entitlement by allowing a non-member spouse (non-member refers to membership of a pension scheme) to receive immediate payment or transfer of the portion of the other spouse’s pension interest allocated to them upon divorce, rather than waiting until the member’s retirement. However, certain pension funds did not fall under the legislation. And to date, there are still quarrels over pension entitlement after divorce. 

One particular situation may require a variation of a divorce order concerning pension interest. Legislation is very strict about the accuracy of the name of the pension fund cited on the divorce order. The wording of the divorce order must meet all the legal requirements to ensure the fund administrator can action the claim. Any uncertainty, unclear wording or omissions can result in the divorce order being defective, which may require the couple to apply to court to have the wording of the divorce order rectified. Variations of divorce orders to reflect the correct names of a pension fund of the member spouse are prevalent in our courts. 

A number of cases that have come before our courts have confirmed that 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. However, where the parties have agreed on the percentage payable, the non-member spouse may not approach a court for variation for a higher percentage than the one agreed on, unless they can show they were coerced or the agreement was entered into fraudulently.

How to vary a divorce order

The process for varying a divorce order typically involves the following steps:

1. Consult an attorney: If you believe that a modification of your divorce order is necessary, the first step is to consult an experienced family law attorney to understand your rights and options.
2. Consider mediation or negotiation: Mediation or negotiation with the other party before going to court can help you reach an agreement without the need for litigation.
3. Apply to the court: If mediation fails or is not an option, you can file an application with the court to vary the divorce order. You will need to provide compelling reasons for the requested modification.
4. Attend the court hearing: The court will schedule a hearing to consider your application. You and your ex-spouse will both have the opportunity to present your arguments, and the court will make a decision based on the best interests of the parties involved, especially if children are involved.
5. Implement the modification order: If the court finds that a modification is warranted, it will issue a modification order detailing the changes to the original divorce order.

Seek the guidance of an expert divorce attorney

Whether you need to change your financial circumstances, child custody arrangements, child support, or pension splitting agreement, the South African legal system allows for variation of divorce orders to ensure fairness and equity in evolving circumstances. It’s essential to consult a qualified attorney when you need to modify your divorce order. The guidance and representation of a legal professional throughout the process will help you navigate and negotiate the changes you seek as smoothly and swiftly as possible.

SD Law has extensive experience helping couples divorce with dignity and move forward with their lives. When issues arise after the divorce, we can guide and support you in finding a solution. For more information on varying a divorce order, contact Simon on 086 099 5146 or email simon@sdlaw.co.za. 

Further reading:

• Custody change after divorce
• Retirement savings: divorced spouse’s rightful claim
• Astonished judge tells ‘unemployable’ wife to find a job

SD Law

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