Maintenance orders valid for 30 years

In a recent Supreme Court of Appeal (SCA) ruling (Simon Roy Arcus v Jill Henree Arcus (4/2021) [2022] ZASCA 9 (21 January 2022) case), it was confirmed that maintenance orders lapse after 30 years if they are not altered. The result of the order in the case was that Simon had to pay maintenance arrears, 29 years after he initially got divorced.

In this case, the arrears ran into more than R3m. While Simon did not dispute the fact that he was in arrears, he said the maintenance order he agreed to when he and his wife Jill divorced in 1993 had lapsed after three years. Although Simon failed to pay the maintenance stipulated in the agreement, Jill did not take steps to recover the arrears, until December 2018, when she instructed her attorneys to send a letter of demand to her former husband.

Notwithstanding the demand, he failed to pay the arrears but commenced paying the monthly maintenance from only January 2019. Jill had, meanwhile, instructed her lawyers to issue a writ of execution against Simon. Subsequently, Simon turned to the Western Cape High Court, where he asked for a stay of the writ of execution. He also applied for an order declaring that his maintenance obligations had lapsed or expired. The Western Cape High Court ruled against him. It found that an order for maintenance was not an ordinary debt under the Prescription Act.

Simon then turned to the SCA, and the majority judgment (three judges) found that a maintenance order had the same legal consequence that flowed from an order made in a civil action. It was said that a maintenance order fixed the obligations of the judgment debtor until such time as it was discharged or varied on new facts. Thus, it remained in place for 30 years – even if payment is not enforced in the meantime. While all five SCA judges came to the same conclusion, two of them wrote a separate, concurring judgment, citing other reasons as well as to why maintenance orders remained in place for 30 years. They reasoned that if the husband’s reasoning that these judgments lapsed within three years if they were not enforced, was to be accepted, it would perpetuate the hardships suffered by the most vulnerable groups in society – women and children. This, they reasoned, was so because at the core, the Maintenance Act was to provide for a fair recovery of maintenance money and to avoid failures to enforce maintenance orders. Justice Baratang Mocumie and Acting Justice Anna Kgoele said if the husband’s reasoning was accepted, it would ‘definitely cause hardship to the maintenance creditors as they will be compelled to approach the courts every three years to enforce their claims to avoid prescription.’