Divorce Settlement Agreements – can they be varied without a formal court application?

It happens frequently that the circumstances change years after a divorce Settlement Agreement was concluded. For example, as in the case of GF v SH and Others 2011 (3) SA 25 (GNP). In this case, the ex  husband and ex wife agreed amongst themselves with the intervention of a mediator that their children would spend more time at the ex husband’s house and adopted a shared parenting approach. Necessarily the new arrangement had a bearing on the maintenance that the ex husband paid to his ex wife for the children as the children spent more time in the ex husband’s care. The mediated agreement was never signed between the parties, or the original Settlement Agreement varied, but the ex husband paid the reduced maintenance. After some time the wife, probably acting out of scorn issued a warrant of execution for the non payment of maintenance as per the original court order. The facts appear below.

In terms of the settlement agreement custody of the minor children was awarded to the wife, subject to the applicant’s reasonable rights of access. In addition the settlement agreement provided that the applicant was to pay maintenance at the rate of R5000 per month per child, escalating annually at the consumer price index rate. In addition the applicant was to pay for all the educational and medical expenses incurred in respect of the minor children.

Following the divorce, the parties appeared to have had ongoing problems and disputes that related to the payment of maintenance, timeousness and the adequacy of such payments, as well as issues relevant to the parenting of the children, including decisions related to their upbringing and well being.

On 15 April 2010 the wife caused a warrant of execution in the sum of R303 154,62, plus interest and costs, to be issued at court for arrear maintenance and non-compliance with their divorce order. Following the issuing of the warrant the wife attached certain goods from the home of the ex husband and belonging to him.

The ex husband’s case was based on the fact that changes were made by himself and the wife to the residency arrangements in respect of the minor children, which changes became operative from March 2008 until about June 2009 and as such his liability to pay the maintenance provided for in the court order of 27 August 2002 had been varied by agreement between himself and the wife. He further contended that, in terms of the change of residency arrangements reached in March 2008, the parties agreed to have the minor children with them for alternate weeks. In addition there was a further mediated agreement with regard to a new payment regime, insofar as it related to the payment of maintenance, in terms of which regime the applicant would not be required to pay any maintenance directly to the wife, but instead would cover all expenses incurred in respect of the maintenance of the minor children and make such payments directly to third parties or, in appropriate instances, to service providers and the children. In this regard it appeared that the parties were assisted by one Charles Cohen, a mediator with expertise in the area of family law.

The wife’s contention was that even though there may have been changes to the residency arrangements insofar as these related to the minor children, it did not absolve the husband from complying with the express provisions of the court order and settlement agreement of 27 August 2002 relating to maintenance payments. In this regard it was the wife’s stance that since the written agreement of settlement provided that ‘save for the above, the provisions of this agreement shall not be capable of being varied (save by a court of competent jurisdiction), amended, added to, supplemented, novated or cancelled unless this is contained in writing and signed by both parties’, any oral or informal arrangement was of no force or effect and not binding on the parties. Alternatively the wife contended that even if there was a variation, it only applied in respect of a trial period from August 2008 to November 2008, and that at best her ex husband would be absolved from paying maintenance for three months (August 2008 to October 2008), and the warrant of execution, if incorrectly issued, was incorrect to that extent, and that extent only.

The agreement was never signed by the parties and the question that the court had to pronounce was whether a Settlement Agreement in a divorce action could be varied by mutual agreement, without resorting to court to vary the Agreement formally.

The principle of non-variation of a written agreement in the context of a non-variation-except-in-writing clause was firmly established in the matter of Shifren and Others v SA Sentrale Ko-op Graanmaatskappy Bpk 1964 (2) SA 343 (O). The stance, which essentially proceeds from the premise that any attempt to agree informally to vary a contract containing a non-variation clause, except in writing, must fail, was affirmed by the Supreme Court of Appeal in Brisley v Drostky 2002 (4) SA 1 (SCA) (2002 (12) BCLR 1229; [2002] 3 All SA 363). The court however found that there must be instances where public policy may justify a departure from the Shifren principle in the area of family law. Without suggesting that such departure should be easily justified or readily countenanced, there must be due regard to the context within which parenting takes place, and within which decisions that may on the face of it vary an express obligation, are arrived at to attain some other socially desirable objective — the best interests of the child. In all the circumstances the demands and the consideration of public policy, in the context of ensuring the development of family law, that are consistent with the values of the Constitution, including the values of equality and non-discrimination, as well as ensuring the advancement of the best interests of the child, would in the court’s view, in appropriate instances and where a proper case is made out, certainly justify a departure from what has become known as the Shifren principle.

The court further noted that if indeed the Shifren principle were entrenched and did not apply in the context of family law, it may well have the effect of achieving all kinds of unintended consequences that may well militate against the development of a public policy consistent with the norms and values of our Constitution. In particular, a strict adherence to those principles may well mean that parents become saddled with a disproportionate share of their responsibility in respect of the maintenance and upbringing of a minor child. It may well have the effect of restricting the ability of parents to do that which the best interests of the child demand, as opposed to that which they are obliged to do in terms of an agreement of settlement, which terms and provisions may well not have kept in touch with the changing times and developments relevant to the context.

From the above it is clear that a Settlement Agreement in a divorce, that was not varied by a formal application to court, may be varied by agreement between the parties, without formally applying to the court to vary such order. It is however of utmost importance that agreements that vary an existing Settlement Agreement be reduced to writing and signed by both parties.

About the Author

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Rights and obligations of unmarried fathers – a court should never be biased

Rights and obligations of unmarried fathers

The facts in FS v JJ and Another 2011 (3) SA 126 (SCA) were as follows. A child, C, was born while the appellant, the father, and her mother, who died shortly after her birth, were living together. They intended to marry. The first respondent was C’s maternal grandmother, who was married to the second respondent (the grandparents). The father and grandparents had been engaged in a protracted battle for the custody of C, during which several applications were heard in the Northern and Western Cape High Courts. The present appeal was against a series of orders made by Kgomo JP in the Northern Cape High Court in terms of which custody of C was awarded to the grandparents – an order at odds with the other orders made by both the Northern and Western Cape High Courts.

On appeal, the Supreme Court of Appeal (SCA) was asked to determine, inter alia, the best interests of C, the rights of unmarried fathers, and the extent of grandparents’ rights in respect of their grandchildren.

As to the grandparents’ rights and responsibilities, the court held that these were from 1 April 2010 governed by ss 23 and 24 of the Children’s Act, which governed non-parental rights to care and guardianship. Before then, grandparents had no inherent rights or responsibilities and it was only the High Court that could confer access, custody or guardianship on a grandparent if it was in the best interests of a child, which had to be assessed in the light of the rights of the biological parents.

As far as the father’s allegation of bias by the trial court was concerned, the present court held that it was clear from the conduct and language of Kgomo JP that he was biased against the father and that he had entirely failed to consider C’s best interests. Kgomo JP’s decision in ordering that C be returned to her grandparents had no basis in fact or in law, evinced bias on his part, and failed to consider the only real issue – C’s best interests.

It was clear from the various reports studied by the court that C’s best interests would be served by placing her with her father.

The High Court is the guardian of all children. However at times as seen in this case, the court was biased against the father of the child. One hears allot of father’s complain of a biased attitude that prevails in our courts. Ultimately the only issue that a court should pronounce on is whether its decision is in the best interests of the child. The interests of the parties should always be secondary to that of the child and the court as guardian of all minors should always live up to such expectation.

About the author:

Bertus Preller is a Family Law and Divorce Attorney based in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. and deals with Family and Divorce matters across the country. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.  His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, digital rights, media law and criminal law.

Can the media report on divorce cases?

Can the media report on Divorce cases?

A recent article in the Rapport newspaper under the heading “Steekse Steve laat sy egskeiding sloer” certainly may have raised some legal eyebrows, especially having regard to the fact that the South African Divorce Act strictly prohibits the media from publishing the names of the parties involved in divorce proceedings.

Divorce can have severe and traumatic effects on children and private details made available through the media may exacerbate this.

One of the most important questions in a free, open and democratic society that is based on human dignity, equality and freedom, is how one should balance the right of freedom of expression, against the right to privacy and dignity of an individual on the other hand.

In the case of Johncom Media Investments v Mandel and Others the Constitutional Court balanced this important right against the rights of dignity and privacy. The court found that the objective of section 12 of the Divorce Act was “to protect the privacy and dignity of people involved in divorce proceedings, in particular children”. By doing so the Court decided to invalidate section 12 of the Divorce Act, but also to prohibit the publication of the names of any of the parties to a divorce or the children. What this in actual fact means is that the media is free to report on the details of a divorce matter but that they may not publish the names of any of the parties involved in a divorce when doing so.

The judgment was referred to as a ‘lukewarm triumph for press freedom’, by retired academic Marinus Wiechers in a Beeld newspaper report as saying that the judges’ qualification of the order declaring Section 12 of the Divorce Act unconstitutional may leave the media in a worse position as no names may be published. In the judgment, the Constitutional Court gave to the media with one hand and took away with the other. While the court has basically struck down a provision of the Divorce Act which prevented the media from publishing any particulars of a divorce action, or any information that emerges in the course of such an action, it also ordered that no party or child involved in divorce proceedings may be identified.

Even attorneys are bound by confidentiality and may not divulge information to the press.  Unless there are exceptional circumstances and the media successfully applies for an order to publish the names and identities of those involved, any story on divorce proceedings that does so will amount to contempt of court.

The judgement of the Constitutional Court resulted in a situation which is actually the reverse of Section 12 meaning that the media can now report all the detail they wish, as a means of informing and educating the public about divorce matters, but unless there are exceptional circumstances, they may not name or identify the people involved.

Where there is a clear public interest in a particular case, the media must apply for an order enabling them to name the parties involved in the divorce matter. Such cases may include, for example, public figures. The key would be to ensure that there is a clear and genuine public interest in naming and or identifying the people involved.

The ruling highlight the importance of media freedom as well as children’s rights and it also has the effect of requiring stronger legal and ethical adherence to reporting not only on children but also, more broadly, on areas that are normally private and personal by nature.

The Divorce Act imposes a criminal sanction in that a person who in contravention of this section publishes any particulars or information shall be guilty of an offense and liable on conviction to a fine not exceeding one thousand rand or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

The Constitutional Court has clearly stated that as important as freedom of expression is, it does not enjoy any preferential status over any other rights.

The question is whether Rapport was entitled to name Steve Hofmeyr…….You be the judge.

About the author:

Bertus Preller is a Family Law and Divorce Attorney based in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. and deals with Family and Divorce matters across the country. He is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.


				

Interview with Bertus Preller, a celebrity divorce attorney based in Cape Town

Business Times Interview – by Adele Shevel

Maria Shriver’s doing it; Tiger Wood’s wife did it. Making the decision to terminate a marriage is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce.

Shriver and Woods are very wealthy, their husbands hugely successful, and high profile infidelity was peppered into the mix. But it’s not only the rich who need to ascertain the financial situation of their husbands.

Women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

Bertus Preller, a celebrity divorce attorney at Abrahams and Gross in Cape Town provides guidance as to how to get your affairs in order before making that final call.

“It’s extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.”

An attorney cannot negotiate on behalf of a client without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth after it takes place.

  • Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
  • Build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, the wife is entitled to 50% of those assets and the husband will have to pay the legal fees involved in this process.
  • A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. The husband can be required under oath to make full disclosure of his assets, and it is perjury if he doesn’t.
  • Women are advised not to leave the matrimonial home if children are involved, because it provides a sense of stability for the kids. It’s better for the husband to leave. If he makes himself guilty of abuse, the wife can get a restraining order to evict him from the property. In some instances, the husband can be restricted from accessing certain parts of the home.
  • Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual.
  • In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce. Wives of employees for the SA government have had to wait for her husband to resign or die before she could access her portion of his pension. But this might change — a judgement issued this month said it was unconstitutional for the wife of a government employee not to be allowed to access his pension following a divorce.
  • Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
  • In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
  • Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so she stalls the divorce in order to continue getting a hearty amount of money each month.
  • The granting of interim maintenance divorce cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
  • Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  “We see a lot of children used as a weapon. I tend to immediately get a parenting plan in place, and register that with the family advocate and stipulate that if issues arise with parenting and the children they need to go to a psychologist or a social worker”.
  • In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
  • A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award damages but he can facilitate the process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Parties have to pay. “Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend” says Preller.
  • Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
  • It’s important to consider instances where the husband has no assets. A policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.

“The decision to divorce is a business decision. You need to look at what happens until the children turn 21, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education,” says Preller.

About Bertus Preller

Bertus Preller is a Family Law and Divorce Attorney based in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. and deals with Family and Divorce matters across the country.Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.

His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, digital rights, media law and criminal law.

Bertus also has a passion for gadgets and technology and he co-pioneered the development of technology in which the first book in the world was delivered to a mobile phone utilizing sms and java technology and also advised a number of South African book publishers on the Google Book settlement class action and negotiated contracts with the likes of Google and Amazon.com.

He specializes in Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.