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New court case to impact divorces and maintenance in South Africa


South Africa’s Supreme Court of Appeal recently dealt with the issue of maintenance and whether payments can prescribe.

Prescription is when a debt or other obligation to pay money is extinguished after a certain period of time.

Legal firm Eversheds Sutherland’s noted that in 1993, a maintenance consent paper was made an order of court during divorce proceedings between Simon Roy Arcus and Jill Henree Arcus.

In terms of the consent paper, Mr Arcus was required to pay Ms Arcus and their two minor daughters maintenance until the daughters were self-supporting and Ms Arcus either remarried or died.

Mr Arcus failed to pay the maintenance and after eighteen years, Ms Arcus obtained a writ of execution for the arrear maintenance amounting to R3.5 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,” said Helen Westman, partner at legal firm Eversheds Sutherland’s.

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 and does not constitute any ‘other debt’ as defined in section 11(d) of the Act, she said.

“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.”

The president officers 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 the 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,” said Westman.


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