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11th Aug 2022
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WHEN CAN YOU CLAIM ARREAR MAINTENANCE?

A friend of yours has been divorced for a few years now. Her ex was supposed to pay maintenance, but it wasn’t long before he started paying less and less and then eventually stopped. Your friend was just too fearful of conflict to do anything about it and continued to raise her kids by herself. Now, however, money is tight and she is wondering if there is anything she can do to get her ex to pay the maintenance he should have paid?

The above scenario where exes don’t meet their responsibilities and pay maintenance is unfortunately quite common. Yet, where does this leave the other spouse? Can they recover arrear maintenance or is there no remedy if they left this too long? Our Supreme Court of Appeal (SCA) has hopefully now finally established the position in law.

In an appeal from the Western Cape Division of the High Court our SCA had to consider the following situation. An ex-husband had to pay maintenance for two minor children as well as his ex-wife in terms of their divorce settlement, which was made an order of the court. The husband defaulted on the obligation to pay and the ex-wife later had a writ of execution issued in respect of the arrear maintenance. The ex-husband contended that the maintenance order was not judgment debt which prescribed after 30 years as per the Prescription Act, but was an ordinary debt which prescribes after three years in terms of the Prescription Act.

The Western Cape Division of the High Court held that the maintenance obligations in the settlement arose from a judgment debt as contemplated in the Prescription Act, and that the maintenance obligations incorporated in the order was subject to 30 years before prescribing.

Our SCA, in reviewing the decision and position in law, concurred with the decision of the High Court and upheld the finding that maintenance orders that were made an order of court only expired after 30 years. This means that a party can at any time before the expiry of the 30 years approach a court to claim arrear maintenance from a party not fulfilling his or her maintenance obligations.

The SCA decision is strong confirmation of the importance of parties having to honour their agreed maintenance obligations and that a party cannot hide behind the effluxion of time to excuse their failure to pay maintenance.

Should you or someone you know be in the position where an ex is not paying his/her maintenance contact your attorney to assist you with taking action to recover any arrear maintenance.

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