Can you vary (change) a settlement agreement after divorce?
In a recent judgement of 17 May 2022 in the case of JN v NN  2283-2021 (ECM), this question was asked (and answered by learned Govindjee J). Unfortunately, for the applicant, her application to vary the settlement agreement was dismissed.
The parties were married in 1996 out of community of property with the accrual system. They divorced in 2019 and entered into a settlement agreement which was made an order of court. That agreement included a non-variation clause.
The applicant (former wife) sought a variation of that order and claims that at the time of consultation with the attorney she believed she was not entitled to any part of the respondent’s estate, which she estimated as worth about R10 million. She claims the attorney did not explain the accrual system to her.
The respondent contends that the applicant made a conscious decision not to claim anything because she wanted an amicable divorce and was in a rush to join her lover.
Govindjee J discusses whether the Plascon-Evans rule applies in rescission applications; whether the relief sought was final in nature; the messages between the parties at the time of the divorce and the correspondence to the attorney; that the inherent jurisdiction of the High Court does not include the right to tamper with the finality of judgments other than in specific circumstances provided for in the rules or the common law; the effect of a settlement (consent) order; Rule 42(1)(c) and whether there was a mistake common to the parties; the threshold for the court to countenance fraud; the applicant’s negligence flowing from her haste to finalise the divorce; and whether it is was in the interests of justice to grant the relief sought. The application is dismissed.
This opinion is not intended as a full advise of divorce proceedings. Contact our offices to discuss such matters with any of our attorneys on (021) 556 9864 or email us at firstname.lastname@example.org.
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