Maintenance – a Judgement Debt
For decades the issue of maintenance has affected the most vulnerable groups in South Africa, namely women and children. The problem has been caused by a weak maintenance system which allows maintenance debtors to escape their responsibilities. The Supreme Court of Appeals has now provided some form of protection to maintenance creditors by ruling in the recent case of Arcus v Arcus, that a maintenance order is a judgement debt for the purposes of the Prescription Act, and therefore subject to a 30-year prescription period.
Whilst a maintenance creditor has always had the right to enforce a maintenance order in terms of the Maintenance Act, it has long been the view that arrear maintenance prescribed after three years. Essentially, it was argued by the appellant (the husband) that a maintenance creditor had the option to approach the Courts every three years if necessary to enforce a maintenance order. The Court quite correctly ruled that this would cause great hardship and prejudice to a maintenance creditor and would result in unnecessary and potentially costly litigation.
The SCA ruled that a maintenance order has all the characteristics of a judgement debt because they are final, executable and appealable and therefore subject to a 30-year prescription period. This judgement will hopefully assist maintenance creditors in navigating the systemic failures of the maintenance system and prevent the wilful avoidance of responsibility by maintenance debtors.
Although this ruling gives maintenance creditors the option to enforce a maintenance order at any time before the 30-year period expires, it would be wise to rather enforce your rights as soon as possible, especially if the maintenance owed to you is necessary to provide for you and your children. We recommend that anybody who is owed arrear maintenance approach an attorney to assist you.
Contributor: Ian Patterson-Roberts
Email: Ian@prwattorneys.co.za
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