What Happens After Divorce Settlement Agreement Is Signed?

After a divorce settlement agreement is signed in South Africa, the agreement becomes a binding contract between the parties, and the steps that follow are filing the agreement with the court, applying for the decree of divorce, and giving effect to the terms of the agreement. The agreement is not a court order by itself, but it can be made an order of court on the application of either party. Once the decree of divorce is granted, the parties are free to remarry and the obligations under the settlement agreement continue to apply.

This page explains what happens after a divorce settlement agreement is signed, the steps to make the agreement an order, and the practical steps to give effect to the terms. If you need help with a divorce matter, our Sandton-based Family Law team can assist.

What the agreement is

A divorce settlement agreement is a written contract between the parties that records the terms of the divorce. The agreement typically covers the division of the assets, the maintenance of the children, the spousal maintenance, and any other issues that the parties have agreed to settle.

The agreement is drafted by the attorneys, negotiated between the parties, and signed by both parties. Once signed, the agreement is a binding contract, and the parties are bound by the terms. The agreement is not a court order, but it can be made an order of court.

What happens after signing

The steps that follow the signing of the agreement are listed below in the order they usually happen.

1. The agreement is filed with the clerk of the divorce court, along with the summons and the other documents in the divorce matter.
2. The parties apply for the decree of divorce, which is the order of court that ends the marriage.
3. The court considers the agreement, and if satisfied that the terms are fair, makes the agreement an order of court.
4. The decree of divorce is granted, and the parties are free to remarry.
5. The parties give effect to the terms of the agreement, including the transfer of assets, the payment of maintenance, and any other obligations.

Making the agreement an order

The agreement can be made an order of court on the application of either party. The application is usually made at the same time as the application for the decree of divorce. The court will consider the agreement, and if satisfied that the terms are fair, will make the agreement an order of court. Divorce attorney’s fees in South Africa can vary significantly based on the complexity of the case and the attorney’s experience. It is essential to discuss these fees upfront to avoid any unexpected costs later in the process. Understanding the financial implications can help both parties approach the negotiation more strategically.

Where the agreement is made an order of court, the obligations under the agreement can be enforced through the court. The court has the same powers of enforcement as it has for any other order, including attachment of wages, garnishee order, and contempt of court.

What to do if the other party does not comply

Where the other party does not comply with the terms of the agreement, the aggrieved party can apply to the court for an order enforcing the agreement. The court will consider the application, and if satisfied that the agreement has been breached, will make an order enforcing the agreement.

The most common breaches are the failure to transfer an asset, the failure to pay maintenance, and the failure to comply with the children’s arrangements. The court has a wide range of tools to enforce the agreement, including contempt of court and the variation of the agreement.

Common Mistakes to Avoid

These are the patterns that leave parties with the wrong outcome after the settlement.

• Signing the agreement without legal advice. The agreement is a binding contract, and the terms are difficult to vary after signing.
• Failing to file the agreement with the court. The agreement is not automatically an order of court, and the parties must apply to make it an order.
• Skipping the enforcement steps. The agreement is enforceable, but the court does not enforce it automatically.
• Skipping the children’s best interests. The court will look at the children’s best interests in any variation application.
• Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.

Frequently Asked Questions

What happens after a divorce settlement agreement is signed in South Africa?

The agreement becomes a binding contract, and the steps that follow are filing the agreement with the court, applying for the decree of divorce, and giving effect to the terms of the agreement. The agreement is not a court order by itself, but it can be made an order of court on the application of either party.

Is a divorce settlement agreement binding in South Africa?

Yes. Once signed, the agreement is a binding contract between the parties, and the parties are bound by the terms. The agreement is not a court order, but it can be made an order of court on the application of either party.

How is a divorce settlement agreement made an order of court?

The application is usually made at the same time as the application for the decree of divorce. The court will consider the agreement, and if satisfied that the terms are fair, will make the agreement an order of court.

Can a divorce settlement agreement be changed after signing?

Yes, in limited circumstances. The agreement can be varied on a material change in circumstances, including a change in income, a change in the children’s needs, or a change in the parties’ other obligations. The court will weigh the actual facts of the matter against the parties’ competing obligations.

What happens if one party does not comply with the divorce settlement agreement?

The aggrieved party can apply to the court for an order enforcing the agreement. The court will consider the application, and if satisfied that the agreement has been breached, will make an order enforcing the agreement. The most common remedies are contempt of court and the variation of the agreement.

How long after the divorce settlement agreement is signed does the divorce become final?

The divorce becomes final when the decree of divorce is granted, which is usually two to six weeks after the settlement agreement is filed, depending on the court’s roll. The parties are free to remarry once the divorce decree is granted.

Do I need a lawyer to sign a divorce settlement agreement?

A lawyer is not required to sign a divorce settlement agreement, but it is strongly recommended. The agreement is a binding contract, and the terms are difficult to vary after signing. A lawyer can help you understand the terms and ensure your interests are protected.

Get help with your divorce settlement. If you need help with a divorce settlement agreement, Otrebski Attorneys’ Family Law team in Sandton can assist with the drafting, negotiation, and filing of the agreement, and with the application for the decree of divorce. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.

Disclaimer. This article provides general information about what happens after a divorce settlement agreement is signed in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979 and the Mediation in Certain Divorce Matters Act, both of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article. Understanding tax obligations on divorce settlements is crucial for both parties involved in the process. It is essential to address these implications during negotiations to avoid potential pitfalls later on. Consulting a tax professional can provide valuable insights into how these obligations may impact overall financial stability post-divorce.