Van Jaarsveld v Van Jaarsveld and Another

The parties were formerly married and divorced in June 2015. Their decree of divorce incorporated a deed of settlement which included a spousal maintenance order in favour of the appellant, subject to a dum casta clause, and a general arbitration clause for disputes arising from the settlement. Years later, the appellant alleged that the first respondent had underpaid and failed to pay maintenance, resulting in arrear maintenance. Instead of pursuing arbitration, the appellant approached the maintenance court under the Maintenance Act 99 of 1998 to enforce the maintenance order and recover arrears. The maintenance court granted relief and rejected the respondent’s jurisdictional objection based on the arbitration clause. On appeal, the High Court held that only an arbitrator could decide whether the dispute fell within s 2(a) of the Arbitration Act 42 of 1965 and set aside the maintenance court’s order. The appellant then appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order dismissing the appeal to that court with costs, thereby restoring the maintenance court’s jurisdiction and order.

The case clarifies that arrear maintenance and enforcement of maintenance orders fall within the exclusion in s 2(a) of the Arbitration Act and are not arbitrable. It reinforces the statutory role and exclusive jurisdiction of maintenance courts, affirms that arbitration agreements cannot oust access to courts in maintenance matters, and harmonises arbitration law with the protective purposes of family and maintenance legislation.