Child maintenance is a critical solution in law, it allows for the most basic care for the most helpless in society, our children. Recently, our courts have been called upon to decide how important a debt created by a child maintenance order is, after it hasn't been paid consistently.
In Simon Roy Arcus v Jill Henree Arcus (4/2021) [2022] ZASCA 9 (21 January 2022) the essential issue decided by the court was whether a maintenance order is a judgment debt, subject to 30 years' prescription period, or whether it is subject to the ordinary three years' prescription period, in terms of sections 11(a) and (d) of The Precription Act 68 of 1969, as amended, respectively.
In the above case regarding the Arcus family, Mr and Mrs Arcus were divorced and settled on a maintenance order in 1993 that became an order of court. Mr Arcus committed to paying maintenance for the couple's two minor daughters until they became self-supporting, eventually occurring in 2002 and 2005.
Even though Mr Arcus didn't pay maintenance according to the consent paper in 1993, Mrs Arcus only took steps to recover the arrear maintenance in 2018. Mr Arcus then began paying monthly maintenance and lodged an application in court for the retrospective discharge of his maintenance obligations.
The Court was of the opinion that it was a judgment debt but granted leave to appeal as “the issue is compelling enough to warrant the scrutiny of a higher court.”
The court noted three requirements from previous case law for the debt to be recognised as a judgment debt: the maintenance order is final, executable, and appealable. The maintenance order is thus a judgment debt for the purposes of the Prescription Act and is subject to a thirty-year prescription period.
Mr Arcus' appeal was dismissed with costs meaning he will be required to pay the R3.5 million in arrear maintenance.
In its closing statements of the judgment, the court noted that were this to have been decided in the alternative, the prejudice would be against maintenance creditors who are far more often women and children, than they are men and that this would fly in the face of what the Maintenance Act 99 of 1998, as amended, was enacted to do.
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