If circumstances change, you may need to vary or amend the terms of your divorce order
You and your divorce lawyers undoubtedly spent a lot of time working out the details of your divorce settlement and negotiating with your ex-spouse’s legal team – or perhaps your contested divorce was only settled by the court. However, time has passed and your life circumstances have changed. Can you vary or amend your divorce order? The short answer is…yes, you can, under certain conditions. The longer answer follows.
Why you might need to vary a divorce order
There are many reasons why your divorce order might feel obsolete. Life changes, but if you have children, you and your ex-spouse are bound to each other, despite the end of the marriage…or at least until the children reach the age of 18. So as you navigate the ups and downs of childrearing and daily living, you may find you need to renegotiate some of the original terms of the divorce, however permanent they seemed at the time.
Most amendments concern child care and contact (custody and access/visitation rights), and changes to your property settlement. There may be a need to change the terms and conditions concerning pension interest.
The most common reasons for variation of the divorce order include:
- One of other of you is moving away and contact arrangements need to be changed
- The income of the parent paying child support has increased or decreased significantly
- You are concerned that your children aren’t being properly supervised at the other parent’s home, whether due to suspected substance abuse, a change in working hours, or a change in lifestyle; or you suspect your children may be being abused by the other parent (this includes parental alienation), or could be abducted
- Your child has become seriously ill and you cannot afford the medical bills, and need the other parent to contribute more to meet the costs
- The other parent is no longer able to provide the same standard of care, perhaps due to a serious physical or mental illness or addiction; or they have been arrested for criminal activity or child molestation and you (naturally) want to change the care and contact arrangements
- You and your teenage child are in constant conflict and you feel that living with the other parent would be in the child’s best interests
- The other parent has remarried and you are unhappy with the home environment that now exists, perhaps because your child is being taught values you do not share. If you feel your children are being harmed by these conditions you may seek a change
- You receive or pay spousal maintenance and your financial needs or resources have changed significantly
- There is an error in the divorce order regarding the name of the pension fund, in which the non-member holds “pension interest”
What can be changed when varying a divorce order?
The reasons given above for wanting to change a divorce order correspond quite closely to the constituent parts that can be changed. If the marriage was in community of property and the joint estate was divided equally upon divorce, as per the definition of that marital regime, the court is unlikely to consider a change to the division of assets.
Division of the joint estate
However, a recent case has shown that this is not impossible. A couple had been granted a divorce in Bloemfontein, with no order regarding the division of the joint estate. No deed of settlement had been filed, nor was there any official record of a verbal agreement between the two parties. It transpired that the husband was a member of the Transport Pension Fund, which was part of the joint estate. Therefore the wife was entitled to half of the partner’s pension interest in the fund. The husband claimed that there was a verbal agreement overriding this legal entitlement, and the wife negated this. She applied to be granted half of his pension interest in terms of section 7 of the Divorce Act 70 of 1979 after the divorce had been granted.
The court upheld the appeal and ordered that the divorce settlement be amended accordingly. The wife secured her entitlement to 50% of her ex-husband’s pension interest at the date of divorce.
Child care and contact
More usually, terms and conditions of the child care and contact arrangements are changed, for any of the reasons cited above (or others). In fact, we recommend that the parenting plan include a review date and be reviewed regularly, in acknowledgement of the changes that take place as a child grows. Application to change the court order defining care and contact must be made at the High Court and the Family Advocate must be informed. The court must be satisfied that the change is in the best interests of the child. If the parents are in agreement, e.g. if one parent has moved to another city, the process is straightforward.
However, if the parents are in conflict and one does not consent to a change requested by the other, the dispute may need to be referred to a parent coordinator (formerly known as a facilitator) if the parenting plan requires it. If there is no such requirement, it can be referred to the Family Advocate, social worker, or other qualified person for mediation. If the result of mediation is still not satisfactory to one or other parent, the decision will be reviewed by the court.
Where one or other spouse (usually the woman but not always) is granted spousal maintenance, it is normally temporary. It is called “rehabilitative maintenance” and is awarded if the court feels that the marriage has had a negative effect on one spouse’s ability to support themselves, for example if the wife has stayed at home to look after children. The court determines the length of time it will take for her to gain the skills to re-enter the job market. If the transition period nears completion and she has been unable to find a job (and has not remarried), or if she is unable to work for other reasons (e.g. her health or the health of a child), she may apply to the court for an extension of the maintenance agreement.
How to rescind or amend a divorce order
An application to vary or rescind a divorce order must be done in the relevant Court. It must be accompanied by an affidavit outlining the reasons for the application and justifying the variation. In general terms, the affidavit should describe the needs of the parties and the children if appropriate.
If both parties are in agreement, i.e. if the variation is with consent, the process is uncomplicated and the costs can be between R7500 and R15 000 for the procedure. If one party does not consent to the wishes of the other, the case will go to litigation and can drag on (in the same way as contested divorces). A disputed variation requires a deposit of R5000. Thereafter the cost with Cape Town Divorce Attorneys is R2280 (excl VAT) per hour.
Consult a good family lawyer
The divorce lawyer who handled your original case can also assist you to vary a divorce order. Or you may choose to appoint fresh counsel. Whether we have acted for you in the past or you are a new client, we handle all cases with compassion and efficiency. Contact Simon on 086 099 5146 or email email@example.com for a discussion in complete confidence.