Simon Roy Arcus v Jill Henree Arcus

The parties divorced in 1993 and concluded a consent paper, made an order of court, in terms of which the appellant undertook to pay maintenance to the respondent until her death or remarriage, and to their two minor children until they became self-supporting. The appellant failed to pay maintenance for many years. The respondent only demanded payment of arrear maintenance in December 2018 and, in February 2020, caused a writ of execution to be issued for arrears of approximately R3.5 million. The appellant sought to stay execution and to have all maintenance debts accruing more than three years prior to service of the writ declared prescribed, contending that maintenance obligations are not judgment debts but ordinary debts subject to three years’ prescription.

The appeal was dismissed with costs. The maintenance obligations arising from the consent paper made an order of court were held to be judgment debts subject to a 30-year prescription period.

The judgment authoritatively clarifies that maintenance orders, including those arising from divorce consent papers made orders of court, constitute judgment debts under the Prescription Act. It strengthens enforcement of maintenance claims by confirming a 30-year prescription period, thereby enhancing protection for maintenance beneficiaries, particularly women and children, and closing a potential loophole relied upon by maintenance defaulters.