20 May 2021
“My ex-husband has for some time now not paid his maintenance as per the court order. Because I had a job and was earning a basic income, I just left it as I didn’t want the hassle of trying to get him to pay. Now I’ve been retrenched and have asked him to pay his outstanding maintenance, but he refuses and says his attorney told him that his obligation to pay has prescribed. Surely this can’t be right?”
To assess whether the obligation to pay maintenance or a claim for unpaid maintenance can prescribe, regard must be had to the provisions of the Prescription Act 68 of 1969 (“Prescription Act”).
In the recent matter of SA v JHA and Others 2021 (1) SA 541 (WCC) this aspect was considered by the court. The ex-husband was required 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 caused a writ of execution to be issued in respect of the arrear maintenance. The ex-husband contended that the maintenance order was not judgement 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 court however held that an order of the court is the same as a judgement debt for the purposes of the Prescription Act and that the maintenance obligations incorporated in the order was subject to 30 years before prescribing.
This confirms the position that maintenance obligations that have been made an order of the court will not prescribe after three years as other ‘ordinary’ debt may, but will only prescribe after thirty years. It would be advisable that you approach your family law specialist to assist you with ensuring that your ex-husband meets his maintenance obligations.