How long can a maintenance order remain enforceable?

How long can a maintenance order remain enforceable?

Does it prescribe in 30 years or in 3 years?

Can a consent order regarding maintenance obligations which was made in 1993 and in which there was no compliance, be activated decades later? A couple signed a consent order as part of their divorce settlement. The man undertook to pay maintenance to his former wife until her death or remarriage and maintenance for their two minor daughters, until they became self-supporting.

The consent paper was then made an order of court. In 2002 and 2005 both daughters became self-sufficient. The wife never remarried. The man did not comply with the order and did not pay any maintenance. The woman did not take any steps to recover the arrear maintenance from him, that is until December 2018, when she sent him a letter of demand for the arrear maintenance.

The man then applied to court to discharge his maintenance obligations in terms of the 1993 consent paper. That discharge application is still pending. The ex-wife issued a writ of execution for approximately R3.5 million for arrear maintenance. The man then asked the court to have the writ suspended until the outcome of the discharge application was finalised.

He said thus the debts from maintenance orders should prescribe within three years. He also asked the court to declare that his maintenance obligations under the consent paper from before 1 March 2017 be extinguished by prescription. In support of his argument, the man said that the maintenance order itself was not to be considered final and appealable, as maintenance orders were capable of being varied and for that reason they lacked certainty. He said that maintenance orders should be enforced promptly and were intended 'for consumption and not accumulation'.

The following reasons were used in support of his argument as to why the 30 year prescription period should not apply for maintenance:-

(a) maintenance orders were intended to provide for immediate living expenses and sustenance and should therefore be promptly enforced;

(b) permitting a maintenance creditor to wait up to 30 years to enforce a maintenance order could cause hardship to a maintenance debtor who, having been lulled into a false sense of security by the inaction of the maintenance creditor, has not provided for the liability, only to be surprised by a vast claim for arrear maintenance, plus accrued interest;

(c) a 30-year prescriptive period allows the potential for abuse where a maintenance creditor seeks to exploit a subsequent windfall in the life of the maintenance debtor; and (d) it is difficult for maintenance debtors to defend against stale maintenance claims, and unreasonable to expect them to preserve documents for up to 30 years to deal with such claims.

The high court did not agree with his reasons and found that the maintenance obligations was subject to a 30-year prescription period and not 3 years as he reasoned. Dissatisfied, the man then approached the Supreme Court of Appeal (SCA) to challenge the high court's ruling.

The SCA too did not agree with the man's reasons. On 21 January 2022, it delivered its judgment, in which it stated that a court order must have 3 characteristics:

- it must be 'final' and not capable of alteration by the court of first instances

- secondly, it must be definitive of the rights of the parties; thirdly,

- it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings'. The SCA said that applications to vary maintenance orders only happen if there are new circumstances which arise upon which the original order can be reconsidered. It also found that amount for maintenance orders are clearly determined and therefore are not subject to a 3 year prescription period. The SCA accordingly dismissed the man's appeal with costs.

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