W v W and Another

The applicant and first respondent were previously married and divorced pursuant to a settlement agreement that was declared binding by the court when the divorce order was granted. The settlement agreement itself stated it was conditional upon the divorce order being granted and the deed of settlement being made an order of court. A writ of execution was subsequently issued against the applicant for outstanding maintenance in the amount of R5,342.19, representing short payments over approximately 12 months (averaging R444.00 per month). The applicant had been paying maintenance in terms of the court order since 2001 without objection. He approached the Maintenance Court in Randburg for a reduction of maintenance only after being faced with the writ in October 2010, despite having been advised repeatedly since March 2010 to approach a competent court for any variation.

• Whether a divorce court's declaration that a settlement agreement is 'binding' has the effect of making the agreement an order of court capable of supporting a writ of execution.
• Whether, in the event the settlement agreement constitutes a court order, the court should exercise its discretion to stay the writ of execution pending a determination of the applicant's maintenance liability by the Maintenance Court.

The application to set aside or stay the writ of execution was dismissed with costs.

Where a divorce court declares a settlement agreement to be 'binding' upon granting a decree of divorce, and the parties intended the agreement to constitute an order of court, such declaration has the effect of making the settlement agreement an order of court for purposes of execution, in compliance with section 6 of the Divorce Act 70 of 1979. The court should not permit a party to escape the consequences of an agreement on a 'highly technical ground which [is] in conflict with the substance of the case'.

None recorded.

This case resolves a conflict in the High Court regarding whether a declaration that a divorce settlement agreement is 'binding' constitutes an order of court capable of execution. It follows and reinforces the line of authority in Tshetlo v Tshetlo and Lebeloane v Lebeloane, rejecting the stricter approach in Brandtner v Brandtner. The judgment emphasises that substance should prevail over form and that parties should not be put to the cost and trouble of further applications to have settlement agreements formally made judgments when their intention was always that the agreement have the force of a court order.