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Divorce, maintenance payments and prescription By Joshua Rutgers, Bianke Biassoni and Piet Badenhorst

When does an undertaking to pay maintenance, forming part of a divorce settlement (consent paper) and incorporated into an order of court, become prescribed in terms of the Prescription Act No. 68 OF 1969?

This was a question the Western Cape High Court recently had to decide, in SA vs JHA & Others (7531/2020) [2020] ZAWCHC.

When a debt becomes prescribed by effluxion of time it is extinguished and rendered unenforceable. In Road Accident Fund vs Mdeyide 2011 2 SA 26 (CC) Van Der Westhuizen J explained the rationale and effect of prescription, stating:

The realities of time and human fallibility require that disputes be brought before a court as soon as reasonably possible. Claims thus lapse, or prescribe, after a certain period of time. If a claim is not instituted within a fixed time, a litigant may be barred from having a dispute decided by a court. This has been recognised in our legal system – and others – for centuries.

The prescription of debts is regulated by the Prescription Act No. 68 of 1969 (“the Act”). Different types of debts are subject to different prescription periods, as set out in section 11 of the Act. For example, the prescription period for any debt secured by a mortgage bond is 30 (thirty) years, while the prescription period in respect of any debt owed to the State is 15 (fifteen) years. Any “other” debt not specifically provided for in the Act, prescribes after 3 (three) years.

Important for the matter in question is that, under section 11(a)(ii) of the Act, the period of prescription for any judgment debt is 30 (thirty) years.

Divorce proceedings are often resolved by way of a negotiated settlement. The terms of the settlement are recorded in a written agreement, generally known as a consent paper. The consent paper regulates aspects such as the division of the parties’ assets; maintenance in respect of both the spouse and children; as well as the care and contact arrangements pertaining to the children. Once the parties have signed the consent paper, it is usually incorporated into the final order of divorce.

In reaching its decision on the prescription period applicable to an undertaking to pay maintenance contained in a divorce consent paper which is made an order of Court, the Western Cape High Court had to determine whether such an order gives rise to a ‘judgment debt’ or ‘any other debt’, as contemplated respectively in sections 11(a)(ii) and 11(d) of the Act. The important difference is that a ‘judgment debt’ becomes prescribed after 30 (thirty) years while an ‘ordinary debt’ becomes prescribed after only 3 (three) years.

The Court first considered what the effect is when a consent paper being made an order of court. The Court considered the case of Eke v Parsons 2016 (3) SA 37, where the Constitutional Court held that once a settlement agreement has been made an order of Court, the terms of the settlement agreement become an enforceable Court order. The Court accordingly held that a consent paper that is incorporated into a final order of divorce must be seen as a judgment of the Court and therefore gives rise to a judgment debt. Accordingly, the 30 (thirty) year prescription period applies to this debt.

The Court then considered whether an obligation to pay maintenance contained in a consent paper also constitutes a ‘judgment debt’, given that a maintenance order (generally) does not have the character of a final judgment (i.e. it can be varied). The Court stated that a maintenance order (which forms part of a consent paper) should not be treated differently to any other part of the order. This is because a maintenance order is final and enforceable until it is varied or cancelled.

The Court noted that under the provisions of the Maintenance Act 99 of 1998 a maintenance order granted by a Maintenance Court has the same effect as a civil judgment. The Court could find no reason why a maintenance order granted by a Maintenance Court should be treated differently from a maintenance order granted by a High Court. It therefore held that a maintenance order that forms part of a consent paper is a judgment debt and is subject to a 30-year prescription period.

In short, the judgment in SA vs JHA & Others confirms that a maintenance obligation contained in a consent paper that is made an order of Court is a ‘judgment debt’ in terms of s 11(a)(ii) of the Prescription Act 68 of 1969 and only becomes prescribed after 30 years. The party entitled to maintenance could therefore legally enforce an arrear monthly maintenance debt dating back to July 1993. The party obliged to pay maintenance only started paying in January 2019 and the aggregate arrear amount was R3 223 190.70.

Should you have any questions regarding the payment of maintenance, please contact our family law department, at 021 808 5600.

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