Divorce and the Settlement Agreement
In South Africa it is accepted practice to regulate the consequences of a divorce by means of an agreement between the parties. In most divorces the parties enter into a settlement agreement, also called a consent paper or deed of settlement in which they agree on matters such as the division of the assets, payment of maintenance, care of and contact to the children and the payment of costs of the proceedings.
Parties in a divorce matter may include any provision in their deed of settlement which is not impossible, illegal, or contrary to good morals. They may for example agree on a division of their assets that differ completely from the normal rules regarding the matrimonial property system that regulates their marriage. For example the parties may agree that neither will have a claim for the accrual against the other and that each party will simply retain his or her own assets.
In terms of the Divorce Act the court may incorporate the spouses’ settlement into a court order if it is in writing. Once the settlement agreement is made an order of the court a party may only vary or amend it on application to the court. The parties may do so by mutual consent, it is important to note that any amendment to the settlement agreement should be made an order of court. 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 to guardianship, custody, access or maintenance. If the dispute relates to maintenance the maintenance court may be approached in terms of the Maintenance Act.
If the settlement agreement is not incorporated into the divorce order it is merely a contract and it can therefore not be enforced in the same way as an order of court. It is important that one consult an attorney that is aware of all the aspects that needs to be incorporated in a settlement agreement otherwise it may be costly to vary it after it was made an order of court.
Family Law Attorney
Abrahams and Gross Inc.