How recent judgements are making it easier to claim maintenance
A blog article by Tania Jones (previously Abbotts)
It’s not often that a legal argument about maintenance reaches the Supreme Court of Appeal in South Africa. This is partly because most Magistrates’ Courts have their own maintenance division with court officials who are specially trained in maintenance law.
They first attempt to reach a settlement between the parties and when they are not successful, the matter is then referred to the Maintenance Court. The Magistrate then considers evidence from both sides to make a ruling. While this process sounds easy, the reality is more complex and often takes over three to six months to finalise a maintenance matter. Add to this the extra costs should both parties insist on legal representation and it becomes clear why maintenance cases rarely come before the Supreme Court of Appeal, but this is exactly what happened in the case of Arcus vs Arcus.
Arcus v Arcus 2022- What exactly happened?
To understand the importance of the judgement, we need to quickly look at the background facts. The couple in question were divorced in 1993. The divorce was amicable and Mr Arcus agreed to pay maintenance for the minor children until they were self-supporting. The minor children became self-supporting in 2002 and 2005, respectively. Then in 2018 Mrs Arcus attempted to claim all arrear maintenance from Mr Arcus.
The important factors of this case:
- Maintenance was agreed upon in a consent agreement signed which was made an order of court. Mr Arcus had fallen in arrears and thus the amount that Mrs Arcus was claiming was in respect of arrear maintenance that had not been paid as at 2002 and 2005 respectively.
- In 2020, when Mrs Arcus took further legal action, she had a writ of execution issued at the court. This document is what is sent via sheriff to attach the belongings and assets of Mr Arcus. It was possible to have a writ issued as the consent order was made an order of court in 1993 and thus Mr Arcus, by being in arrears, was in contempt of court.
- Mr Arcus applied to have the writs set aside as he was of the opinion that his indebtedness had prescribed. Usually, a period of three years applies to general indebtedness, however, the Prescription Act 68 of 1969, specifically Section 11 states that when dealing with a judgement debt, prescription is extended to 30 years. This means that unlike general indebtedness, a person with a valid judgement may have 30 years to claim the debt and not just three years.
What did the court decide?
- As maintenance matters are usually never taken to the Supreme Court of Appeal, it was crucial for the court to consider various judgements from lower courts which dealt with prescription and maintenance in general, and then to further consider the general principles surrounding prescription.
- Judge Smith made a clear distinction that this was not just any debt. This matter pertained to a maintenance obligation that was ignored by Mr Arcus.
- Judge Smith ruled in favour of Mrs Arcus and ruled that her judgement stands against Mr Arcus and in turn, cemented the fact that a party cannot rely on prescription in order to avoid their maintenance obligations. The judge said: “a longer period of prescription is in the best interest of those vulnerable individuals who are usually the beneficiaries of maintenance orders, namely, divorced woman and minor children”.
What this means for you?
Normal prescription time periods for indebtedness do not apply to maintenance judgements once they are granted. I.e., they are enforceable for up to 30 years. Maintenance orders can also be varied or rescinded in the event of the financial position of the parties changing.
What other major indebtedness judgments affect divorce and maintenance?
A mother successfully obtained an interdict against the father of the children preventing him from getting the proceeds of the sale of the property, pending the calculation of arrear maintenance owed in respect of the minor children being deducted from such proceeds.
Important factors of the case:
The above case has resulted in a party being in a position to interdict an attorney paying out proceeds from a sale in lieu of money owed for maintenance, thus, effectively safeguarding the party’s interest to recover what is owed. We see this daily that even though a party is able to get a judgement, they battle executing same as the opponent hides funds, or sells assets leaving nothing to settle the debt. This case therefore again reiterates the importance behind a maintenance order and the fact that the courts will enforce the same.
For more information: Tania Jones / TaniaJ@hammondpole.co.za