Lawyer unpacks the new ruling that maintenance orders will only 'expire' after 30 years

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"One would hope that both parents always put their children's needs first, but sadly, sometimes it takes a court order to enforce," explains Matshoza.
"One would hope that both parents always put their children's needs first, but sadly, sometimes it takes a court order to enforce," explains Matshoza.

In a recent court case, the Supreme Court of Appeal ordered that a man pay over R3 million in maintenance arrears to his ex-wife, even though it is now 29 years after their divorce. 

The judgement, which was written by Acting Justice John Smith, upheld the terms of the 'Prescription Act', a legal principle in terms of which a debtor's liability to pay an outstanding debt is extinguished after the passing of prescribed periods.

A maintenance order is a 'judgement debt' in terms of the Prescription Act, meaning that a  maintenance order will now only "prescribe" 30 years after the order is made, instead of 3 years, which is usually the case for "ordinary" debt. 

We spoke to the Head of Legal at LAW FOR ALL, Linda Matshoza, who says that the decision taken by the court was a "groundbreaking" one, given that maintenance defaulters are indulged too often when it comes to maintenance obligations.

"The topic of maintenance is a triggering topic for many separated parents in South Africa. On the one hand, you've got primary caregivers who rely on the financial support to help pay for everyday living costs of raising a child - it isn't cheap- and on the other, you've got parents who maintain that they are doing the best they can," explains Matshoza. 

Also read: Man ordered to pay over R3 million in maintenance arrears 29 years after divorce

'Sadly, sometimes it takes a court to enforce'

In 1993, when Simon and Jill Arcus divorced, they signed a consent paper (which was later made a court order) that required Simon to pay maintenance to his wife until she either died or remarried. Simon was also required to pay maintenance to their two minor children at the time until they became self-supporting.

Despite the court order, Simon failed to pay the maintenance to his ex-wife as well as for their two children. The children became self-supporting in 2002 and 2005. 

"One would hope that both parents always put their children's needs first, but sadly, sometimes it takes a court order to enforce. Where such an order exists, the defaulter must ensure that they abide or be prepared to face the consequences, including being held criminally liable for failure to pay maintenance," says Matshoza.

However, Jill only took the steps to enforce the maintenance order in 2018, 25 years after the divorce, and Jill's lawyers then wrote a letter of demand to her ex-husband for payment of the arrears, totalling R3.5 million. 

Also see: Legal expert explains what to do when you can no longer afford child maintenance

'They must face the consequences'

Simon refused to pay the arrears, claiming that any arrear maintenance he owed had been prescribed under the Prescription Act because the claim was not enforced in time, and he went to the Cape Town High Court for an order.

Acting Judge Matthew Francis dismissed this application, emphasizing that an order for maintenance is not "ordinary" debt, but rather "judgement debt". 

Simon appealed this ruling, arguing that his former wife enforced the claim too long after the divorce and that the order was not "judgement debt", because it was not made in terms of a court order, but rather in terms of an agreement.

However, the Supreme Court of Appeal rejected these arguments.

Acting Justice Smith said that it was irrelevant that the maintenance order arose from an agreement because the consent paper was made an order of the court, legally requiring Simon to pay maintenance to his wife and children.

"As said by the debtor in one of his arguments, the parties had agreed upon the maintenance payments due. He was at all times aware of his obligations. At the very least, he was to act in good faith to meet his obligations. If he was unable to, he had the option to apply for a decrease in maintenance in court," adds Matshoza.

Matshoza applauds the court for making it clear that they will not be taking kindly to willful default, agreeing that this ruling is in the best decision of vulnerable people, such as divorced women and minor children. 

"The ruling demonstrates much-needed support to primary caregivers, who now have peace of mind knowing they can approach the courts and don't have to rely only on empty promises. And it makes it clear to defaulters that they have to take the duty to support seriously and abide by existing court orders. Or they must face the consequences."

Also see: #MaintenanceMatters: Everything you need to know about child maintenance 

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