FAMILY LAW: Hassle-free amendments of divorce settlements

It is a fact of life that circumstances change all the time. The provisions of a divorce settlement, probably reached in circumstances of severe emotional turmoil, may seem fair and manageable to the parties at the time of agreement, but could very well become untenable and grossly unfair to one of the parties a few years down the line. Because a divorce settlement forms part of an order of court, it has until recently not been possible to amend its terms without bringing a court application or, insofar as maintenance is concerned, to approach a maintenance court and apply for a reduction in maintenance. However, courtesy of a judgment by the South Gauteng High Court, it has now become possible, in certain limited circumstances, for the parties to circumvent the legal process entirely and to amend the provisions of their divorce settlement by agreement.

In reaching its decision, the Court held that the normal rule of public policy that written agreements containing so-called “non-variation” clauses (i.e. a clause stating that an agreement may not be amended unless by way of a further written agreement between the parties) sometimes has to bow before the even more important considerations, such as the interests of minor children (enshrined in the constitution and now also dealt with in great detail in the Children’s Act); parents’ duties of support toward their children; as well as the fact that the law must be practical and capable of variation if circumstances require it. This is in fact not so much a departure from principles of public policy than a specific implementation of such principles.

In light of this judgment, it is now possible for divorced parents with minor children to agree to a variation of their respective maintenance contributions without resorting to court proceedings. It must, however, be noted that, while the court’s decision could theoretically be extended to cover issues such as contact, care and spousal maintenance, it factually only dealt with the maintenance of children and accordingly any purported agreement dealing with other issues may be unenforceable. This is method should therefore by no means be used with impunity and it is always best to consult a legal advisor in these circumstances. At the very least, an agreement of this nature should be in writing and signed by both parties.