A client asked if she would lose her right to claim maintenance from her ex-husband if she had been battling for years to get him to pay. He is now back on his feet and still refuses to maintain his child. He suggests the maintenance order lapsed after three years under the Prescription Act.
The Supreme Court of Appeal (“SCA”) in Simon Roy Arcus v Jill Henree Arcus found that if a consent paper is signed and made a court order, the ex-wife has 30 years to enforce the claim for maintenance.
In this case, in 1993, during divorce proceedings between the parties, a court made a maintenance consent paper a court order. The husband was obliged to pay the wife and their two minor daughters maintenance until the daughters were self-supporting and the wife either remarried or died.
The husband failed to pay the maintenance, and after eighteen years, the wife obtained a writ of execution for the arrear maintenance amounting to R3.5-million.
The husband argued that all maintenance obligations due after three years from the date of the court order lapsed due to prescription.
The Prescription Act distinguishes between a “judgment debt” (that prescribes after 30 years) and “any other debt” (that prescribes after three years). The court found that the maintenance obligations in terms of the consent paper constituted a judgment debt.
The court noted that once a court makes a consent paper a court order, that agreement’s status changes to an enforceable court order. Thus, it concluded that the three-year prescription period did not apply to maintenance orders as they were not orders that were still in dispute.