Maintenance and Prescription; When does a Maintenance Order Prescribe?

maintenance order

Finalizing the divorce proceeding requires both Plaintiff and Defendant to be ad item (in agreement) as to the Maintenance plan where there are minor children or children financially dependent on either or both parties involved.

Previously, it was unclear as to whether a maintenance order is a judgement debt in which it is only prescribed after 30 years or other debt that prescribes after three (3) years. In this regard, a judgement debt is a debt established or confirmed by a decree of a court of law.

Further, Section 11 (a)(ii) of the Prescription Act states that ‘the period of prescription of debts shall be the following: thirty (30) years in respect of- any judgement debt.’ This includes an order granted for a maintenance plan upon a decree of divorce. Herein, section 25 of the Maintenance Act provides that ‘any person aggrieved by any order made by a maintenance court under this Act may, within such period and in such manner, as may be prescribed, appeal against such order to the High Court having jurisdiction. In addition, a person who is served with a demand to pay in terms of a maintenance order is compelled to comply with that order until he or she can demonstrate a change in circumstances justifying a variation of the order.’

The Supreme Court of Appeal in Simon Roy Arcus v Jill Henree Arcus had to consider section 11 (a)(ii) of the Prescription as to the 30-year period in which the opposing party can claim for judgement debt which would result in the debtor paying the excess amount of money on the one hand and the vulnerable beneficiaries on the other hand which are mothers and children. The court held that ‘the potential prejudice that a 30-year prescription period would have for the maintenance debtor, is also exaggerated. Apart from the fact that any such prejudice can be avoided by the debtor doing what all responsible citizens are supposed to do, namely, to comply with court orders, it is inconceivable that any such prejudice can arise when, in appropriate circumstances, the debtor would be able to apply for either prospective or retrospective variation of the order. Further, a maintenance order fixes the obligations of the judgment debtor until it is discharged or varied upon the establishment of new facts.’

Section 8 of the Divorce Act 70 of 1979 provides that a maintenance order ‘may at any time be rescinded or varied’, this is an exception to the general rule that an order of court once pronounced is final and immutable. In this regard, the order will only be reconsidered if there are new facts that are being considered that justify the reconsideration of the order. It must be noted that a reconsideration for a variation order cannot be considered on the same facts which were before the court. However, the aggrieved party can appeal the order.

 

Should you require any legal assistance with regard to any maintenance order currently in place, please do not hesitate to contact us.

 

Shervona Tia Marshall
Candidate Attorney
shervona@bbplaw.attorney

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