If your circumstances change, the terms of your divorce order may no longer be applicable. The question is: can you vary or amend your divorce order?
"The short answer is yes, you can, under certain conditions," says attorney Simon Dippenaar.
"Most amendments concern childcare and contact - custody and access or 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 the following:
- 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".
How to rescind or amend a divorce order
If the marriage was in community of property and the joint estate was divided equally upon divorce, the court is unlikely to consider a change to the division of assets," says Dippenaar. "However, a recent case has shown that this is not impossible."
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 agree, the process is uncomplicated. 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.