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Thought of the Week | Prescription of a maintenance order

The underlying premise of prescription laws is that a debtor’s liability to settle a debt lapses after a stipulated period and if not acted upon by the creditor. In the context of a divorce maintenance order, prescription can hit especially hard if the party liable to make payment of maintenance, can sit back and argue that the maintenance debt has prescribed.

Section 11 of the Prescription Act provides distinct prescriptive periods for different categories of debts. For the purposes of this note, only two categories of debts are relevant, namely a ‘judgment debt’ under section 11(a)(ii) of the Act, which prescribes after 30 years, and ‘any other debt’ under section 11(d), which prescribes after 3 years. Is a maintenance order granted by a Court the former or the latter?

Recently, the Supreme Court of Appeal in Arcus v Arcus was asked to determine whether an obligation to pay maintenance in terms of a divorce order constitutes a ‘judgment debt’ or ‘any other debt’ under the Prescription Act.

The facts in Arcus v Arcus were the following: The parties divorced on 27th July 1993. The appellant agreed to maintain the respondent until her death or remarriage, and their two minor daughters, until they became self-supporting. The appellant’s maintenance obligations were included in the consent paper, which was incorporated in the divorce order, and made an order of court. He failed to furnish spousal and child maintenance. Years later, in 2020, the respondent issued a writ of execution to recover arrear maintenance of approximately R3.5 million.

The appellant approached the Western Cape Division of the High Court to stay the writ and issue a declaratory order confirming that the claim for arrear maintenance flowing from the divorce order prescribes three years after the maintenance is due. He was unsuccessful. The High Court held that the obligation to pay maintenance in terms of a consent paper, which was made an order of court, constitutes a judgment debt under section 11(a)(ii) of the Prescription Act. As such, his obligation to pay arrear maintenance lapses after 30 years, not three years. He appealed to the SCA.

In deciding whether the obligation to furnish maintenance in terms of a consent paper amounts to a judgment debt as envisaged under section 11(a)(ii) of the Prescription Act, the SCA considered the key attributes of a judgment debt. While the Prescription Act does not expressly define ‘judgment debt’, the ordinary meaning of the term refers to the sum of money a court orders a debtor to pay a creditor. To this end, a judgment debt comprises three essential features. First, it is final and enforceable and cannot be altered by a court of first instance. Second, it clearly defines the rights and obligations of both parties. Third, it disposes of a considerable portion of the relief sought by a creditor. The SCA held that a maintenance order fulfils these essential requirements.

It is worth noting that section 1(1) of the Maintenance Act broadly defines ‘maintenance order’ to include any order for the payment of maintenance. For this reason, the appellant’s obligation to furnish maintenance emanating from a consent paper, which was made an order of court, falls within the scope of a maintenance order under the Act.

The effect of this judgment is that maintenance creditors can enforce a maintenance order for a period of 30 years after it was made. Crucially, the Court rejected the appellant’s contention that a 30-year-prescription period may prejudice maintenance debtors. The SCA contended that a maintenance debtor can avoid any potential prejudice by complying with a maintenance order or seeking a variation, if applicable. Further, the Court noted that a longer prescriptive period is in the interest of financially vulnerable maintenance creditors, who are often divorced women and minors.

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