Oops! A failure to pay maintenance can haunt you for up to 30 years?

• South Africa

• Litigation and dispute management - Other

28-02-2022

Did you know that the failure to pay maintenance in terms of a court order can haunt you for up to 30 years? Simon Roy Arcus (“Mr Arcus”) found this out the hard way when the Supreme Court of Appeal (“SCA”) handed down judgment in Arcus v Arcus (4/2021) [2022] ZASCA 9 and ordered him to pay 25 years of arrear maintenance in the grand total of R3.2 million!

Mr Arcus contested that since a period of 25 years had elapsed and maintenance had not been paid throughout the subsistence of that period, that the debt had become unenforceable due to prescription. The SCA dismissed Mr Arcus’ contention and held that an undertaking to pay maintenance in a divorce order does constitute a ‘judgment debt’ as defined in section 11(a)(ii) of the Prescription Act 68 of 1969 (“the Act”) and does not constitute any ‘other debt’ as defined in section 11(d) of the Act. The importance in the distinction between a judgment debt and any other debt is that a judgement debt prescribes only after 30 years, whereas any other debt prescribes after 3 years.

In coming to its decision, the SCA took into account, amongst other things, that the longer period of prescription is in the best interests of vulnerable individuals who are usually the beneficiaries of maintenance orders, namely divorced women and minor children. Any hardships Mr Arcus now faces could have been avoided by complying with his maintenance responsibilities and court orders as “citizens are supposed to do”.

Mocumie JA and Kgoele AJA went further to state that the defence by Mr Arcus would “fly in the face of the Maintenance Act”, and which would create a mechanism by which a party could evade and defy the purpose for which the Maintenance Act was created.

The SCA decision should be celebrated in that it has brought clarity to timeframe in which one can be held liable for arrear maintenance, and will more than likely give rise to an increase in the enforcement of arrear maintenance orders that are still due and payable for 30 years.

Should you require assistance in either enforcing your maintenance order or varying the terms of your maintenance order so as to accurately reflect your current financial circumstances, then do not hesitate to contact us.