PRESCRIPTION AND MAINTENANCE: CLAIMING MAINTENANCE AFTER 29 YEARS
In a landmark judgement handed down in January 2022 the Supreme Court of Appeal (“the SCA”) held that a maintenance order is classified as a ‘judgement debt’ and therefore only prescribes after 30 years (Arcus v Arcus 4/2021 2022 ZASCA).
Mr and Mrs Arcus got divorced on 27 July 1993. In terms of this divorce order, Mr Arcus was required to pay maintenance of R2 000.00 per month to Ms Arcus and their two minor children, until their daughters were self-supporting and Ms Arcus either remarried or died. He failed to do so. Over 20 years later, Ms Arcus decided to enforce the maintenance order against her husband. Mr Arcus argued that it would be unfair to permit his former wife to enforce the claim for arrear maintenance so long after their divorce and that the debt had become unenforceable due to prescription.
Let’s unpack what this judgement means for you.
Maintenance is an amount of money that is payable based on the existence of a legal duty to support. When you apply for a divorce order, it is possible to simultaneously claim maintenance from your spouse. There are two types of maintenance: spousal maintenance and child maintenance.
Child maintenance is granted under the Maintenance Act 99 of 1998 and is based on the obligation of a parent to support a minor child. This could include providing the child with housing, food, clothing, education and medical care, or providing the funds necessary to pay for these essentials.Spousal maintenance is also granted under the Maintenance Act 99 of 1998. In determining whether an order for spousal maintenance should be made, the Court will consider inter alia how long the marriage was, whether both parties earned an income during the marriage and the spouses’ respective means.
The duty to pay spousal maintenance may arise in two ways:
- Settlement agreement: the Court may make in accordance with the written agreement between the parties.
- Order of Court: the Court may make an order which it finds just in respect of the payment of maintenance by the one spouse to the other by considering various factors.
Prescription is a legal principle that results in a debt or other obligation being extinguished after a certain period of time has elapsed. The Prescription Act 68 of 1969 provides for the time periods after which specific debts prescribe. Most civil claims prescribe after three years. Court orders, or judgement debts, are only prescribed after 30 years.
In the Arcus case, the SCA held that a judgement debt has three attributes:
- The decision must be final and not susceptible to alteration by the Court of the first instance;
- It must be definitive of the rights of the parties; and
- It must be able to dispose of a substantial portion of relief claimed in the main proceedings.
In reaching its decision that a maintenance order is enforceable for 30 years after it is granted the SCA considered, amongst other things, that it is often vulnerable individuals who are the beneficiaries of maintenance orders. Any hardships that Mr Arcus now faces could have been avoided by complying with his maintenance responsibilities.
This judgement means that ex-spouses who struggle to enforce maintenance orders in their or their children’s favour will have many years to pursue the enforcement of the debt.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).
Written by: Unathi Mayekiso (Candidate Attorney)
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