The duty to support and maintain a child is a common law obligation shared between parents. The obligation was legislatively incorporated into Section 13(3)(a) of the Maintenance Act 99 of 1998. The obligation continues until the child becomes self-supporting.
Always Pay Maintenance:
Are you aware that not paying maintenance in accordance with a court order can follow you for up to 30 years?
It was a bitter lesson for Simon Roy Arcus (“Mr Arcus”) when the Supreme Court of Appeal (“SCA”) handed down judgment in Arcus v Arcus (4/2021) [2022] ZASCA 9 and ordered him to pay R3.2 million in arrear maintenance after 25 years!
Arcus argued that since a period of 25 years had elapsed and no maintenance payments were made throughout that period, the debt had become unenforceable due to prescription.
The SCA rejected Mr Arcus’ claim, holding that a divorce order containing an undertaking for maintenance is a judgment debt as defined in section 11(a)(ii) of the Prescription Act 68 of 1969 (“the Act”), and is not an “other debt” as defined in section 11(d) of the Act.
An important distinction between a judgment debt and any other debt is that a judgment debt prescribes only after 30 years, whereas any other debt prescribes after three years.
SCA weighed several factors when coming to its decision, including the fact that the longer prescription period is in the best interests of vulnerable individuals, such as divorced women and minor children who are the usual beneficiaries of maintenance orders.
In order to avoid the hardships Mr Arcus faces today, he should have fulfilled his maintenance responsibilities and followed the court orders, as citizens should.
They asserted further that the defence advanced by Mr Arcus would “fly in the face of the Maintenance Act,” and that this would be a mechanism for evading and eluding the purpose of the Maintenance Act.
(This article is provided for informational purposes only and not to provide legal advice. For more information on the topic, please contact our offices.)
