Markus from Ireland writes: I think it would be a good idea to share our experiences and put together an overview about the specific features of each app. Nevertheless, I am not entirely convinced whether I like this.
Second Appellant In re: Through the use of dispute resolution mechanisms designed to foster the amicable settlement of disputes, such as conciliation or mediation, parties arrive at a negotiated settlement of the issues raised in an action for the dissolution of their marriage relationship.
The usual outcome of such a negotiated settlement is the conclusion of an agreement, for the terms of the settlement to be recorded in a written document, and for it to be made an order of the court. The record of this agreement or contract is commonly referred to as a settlement agreement, a deed of settlement or a consent paper.
The agreement usually deals with matters such as the division of the assets of the parties, the payment of maintenance, custody of, and contact with the children, and the payment of the costs of the proceedings. The reason for this is the fact that only the court can dissolve the marriage and has to approve any agreement in relation to the custody and maintenance of the children born of the marriage.
This has two consequences: The first is that as a rule negotiated settlements in divorce proceedings also deal with other issues arising from the consequences of the dissolution of the marriage, such as the proprietary rights of the parties and the payment of maintenance by the one party to the other.
Secondly, like any other negotiated settlement, the parties will inevitably also give consideration to the question of the enforcement of the terms thereof in the event of any future non-compliance therewith by any of the parties thereto.
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As the agreement has been reached in the context of an existing action, the parties as a result more often than not seek enforcement through the machinery of the court by agreeing that the settlement agreement be The effect of surroundings in pauls an order of the court.
The facts of the case can be summarised as follows: Their marriage was in community of property.
In April the first appellant commenced divorce proceedings against the second appellant. The relief claimed with regard to the respective rights and obligations of the parties in the exercise of their parental duties were set out in some detail.
It was agreed that the divorce would proceed on an unopposed basis with the incorporation of the terms of the settlement agreement into the order of the court.
The agreement further provided that the second appellant would retain certain movables and that the first appellant would retain the remainder. The agreement then proceeded to deal with the immovable property and provided that the second appellant would receive a sum of cash money, together with certain purchased items, all amounting to R50, In return the second appellant would transfer her half share in the immovable property to the first appellant, and both parties undertook to do what was necessary to achieve this, such as the signing of the required documentation.
It provides for the parties to be co-holders of parental responsibilities and rights and determines matters such as the place of residence of the children and their maintenance. She concluded that she was satisfied that the agreed arrangements would serve the best interests of the two children.
This report formed part of the documentation placed before the court a quo at the hearing of the matter. At the hearing of the matter and after receiving the evidence of the first appellant, the court granted a decree of divorce together with orders in terms of paragraphs 2 and 3 of the particulars of claim.
In its reasons in the application for leave to appeal the court a quo explained its refusal to incorporate the terms of the settlement agreement into its order by stating that it followed the principle in the judgment in Thutha v Thutha 3 Thuthawherein the court in essence set its face against the practice of the different courts in this division of making or incorporating settlement agreements into the judgment or order of the court.
That the Court had erred in not granting an order as requested by the Applicants as set out in their Deed of Settlement at least in respect of the immovable property.
They are thanked for their assistance. By way of introduction it must be said that although some of the aspects which I intend to deal with in this judgment may apply with equal force to agreements to settle issues in other actions, it must be made clear at the outset that this judgment deals with, and is limited to settlement agreements in the context of divorce proceedings where the parties have agreed that the terms of their agreement be made an order of the court.
The order in other words presupposes the existence of an agreement by the parties as the basis for it.
Where it has the effect of disposing of the issues between the parties as raised by the action itself, it would in most instances constitute a compromise transactio. The enforcement of any remedy available to the aggrieved party, such as specific performance, can only be achieved by the commencement of a new action.
Because the original action had been terminated, the court cannot, and does not play any active role in the supervision of the enforcement of the settlement agreement.
One of the advantages of this arrangement is that the court retains jurisdiction over the matter in the sense that it has the inherent power or authority to ensure compliance with its own orders. It is this second method which is preferred in divorce proceedings, no doubt as stated by counsel in argument, for the simple reason that it is the more attractive option.
Why that is so will be dealt with later in this judgment. This distinction is a necessary consequence of the fact that the dissolution of a marriage relationship and its consequences are primarily regulated by statute and concerns issues of status and the welfare of children in respect whereof the court fulfils an important function as upper guardian.Our subject for the present is, accordingly, PAUL AT CORINTH; or, Chr1st1an1ty 1n Contact W1th Ga1ety, Luxury, And Ref1ned Sensual1ty.
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