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Mr and Mrs Smith divorced 25 years ago. They entered into a settlement agreement at the time which required Mr Smith to pay monthly maintenance to his wife until she died or remarried. He was also required to pay maintenance for their minor children until they became self-supporting. Despite the court order, Mr Smith failed to pay any maintenance to his former wife. He also failed to pay maintenance for their two children. However, Mrs Smith did not take any steps to enforce the maintenance order. She only took steps to enforce the order in several years after her divorce.

When Mrs Smith recently tried to claim the arrear maintenance, Mr Smith approached the High Court for an order declaring that any arrear maintenance he owed had been prescribed under the Prescription Act, because the claim was not enforced timeously. The Court dismissed Mr Smith’s application and said that an order for maintenance is not an “ordinary” debt in terms of the Prescription Act. Rather, an order for maintenance is a “judgment debt” which means that it will only be prescribed after 30 years.

Mr Smith took the ruling on appeal. The Appeal Court found that any claim of unfairness in allowing a 30-year period to enforce a maintenance claim was exaggerated, stating that “Such prejudice can be avoided by the debtor doing what all responsible citizens are supposed to do, namely to comply with court orders,”. The Appeal Court confirmed that a maintenance order is a “judgment debt” in terms of the Prescription Act. (Prescription means that a legal claim will “expire” if it is not enforced within a specific time – usually three years.) This means that a maintenance order will only “prescribe” 30 years after the order is made and not three years.

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Author – Jessica Gooding

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