[D184] DID YOU FORGET TO PAY MAINTENANCE? | SOUTH AFRICA

The duty to support and maintain a child is a common law obligation shared between parents. The obligation was legislatively incorporated into Section 13(3)(a) of the Maintenance Act 99 of 1998. The obligation continues until the child becomes self-supporting.
Always Pay Maintenance:
Are you aware that not paying maintenance in accordance with a court order can follow you for up to 30 years?
It was a bitter lesson for Simon Roy Arcus ("Mr Arcus") when the Supreme Court of Appeal ("SCA") handed down judgment in Arcus v Arcus (4/2021) [2022] ZASCA 9 and ordered him to pay R3.2 million in arrear maintenance after 25 years!
Arcus argued that since a period of 25 years had elapsed and no maintenance payments were made throughout that period, the debt had become unenforceable due to prescription.
The SCA rejected Mr Arcus' claim, holding that a divorce order containing an undertaking for maintenance is a judgment debt as defined in section 11(a)(ii) of the Prescription Act 68 of 1969 ("the Act"), and is not an "other debt" as defined in section 11(d) of the Act.
An important distinction between a judgment debt and any other debt is that a judgment debt prescribes only after 30 years, whereas any other debt prescribes after three years.
SCA weighed several factors when coming to its decision, including the fact that the longer prescription period is in the best interests of vulnerable individuals, such as divorced women and minor children who are the usual beneficiaries of maintenance orders.
In order to avoid the hardships Mr Arcus faces today, he should have fulfilled his maintenance responsibilities and followed the court orders, as citizens should.
They asserted further that the defence advanced by Mr Arcus would "fly in the face of the Maintenance Act," and that this would be a mechanism for evading and eluding the purpose of the Maintenance Act.
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=== ABOUT ASLAM MOOLLA ===
💼 Aslam Moolla is a licensed Attorney with a Masters in Law who specializes in Divorce and Labour Law. In 2014, he was awarded the Lexis Nexis Prize by the University of KwaZulu-Natal. Our law office is based in Umhlanga, Durban. We developed this series of videos to show you how to handle yourself in court and achieve the best outcome for your case.
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=== RESOURCES CITED IN THIS VIDEO===
DIVORCE ACT - SOUTH AFRICA
=== TIME STAMPS===
00:00 Introduction
00:21 The Case of Arcus vs Arcus
00:54 Judgement Debt
01:20 Supreme Court of Appeal Factors
01:51 Summary
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=== LEGAL DISCLAIMERS ===
Legal Disclaimer: This video recording is for educational purposes only and should not be considered as the rendering of legal advice. The viewing of this recording does not create an attorney-client relationship with Aslam Moolla. Please consult an attorney to get specific legal advice to your specific situation
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