December 8, 2016

When does a maintenance order prescribe?

Sabina Chivasa

When the family is happy and the parents are still together, the question of maintenance is never really an issue as the expenses of the household are generally shared in some form or manner. Maintenance becomes a real sticking point when parties decide to go their separate ways. Whether the separation is amicable or not, when finances get involved, it’s often the case that you need to brace yourself for a fight.  Whether it’s spousal maintenance or maintenance for the kids, the party responsible for the maintenance is going to dispute the figure! We’ve all heard of those American hip hop celebrities with multiple ‘baby mamas’ who get thrown in jail for defaulting on child support. Whether they are just being vengeful or genuinely irresponsible and living above their means, or the maintenance figures demanded really are outrageous, it is not uncommon for people to skip maintenance payments. This brings me to the topic of this article: When does a maintenance order prescribe?

The case of M v M which was decided in 2012 at the KwaZulu Natal High Court, Durban adequately addresses this question. The court of second instance had to answer the question of whether the appellants claim to her husband’s pension benefit had prescribed. Because settlement agreements are often subsequently made into maintenance order, this is a good case to look at to see how the courts handle the matter of prescription when it comes to maintenance orders.

In analyzing the prescription of the appellants claim to the respondent’s claim to her husband’s pension, the court provided the following:

In terms of the Prescription Act, the running of prescription of a debt begins when the debt becomes due, and in the case of an ordinary debt, the debt becomes extinguished after a period of 3 years.

Section 12(3) of the Act provides:

“A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises. Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care”

The debtor claiming prescription in these circumstances bears the onus to allege and prove such knowledge or deemed knowledge.

To be regarded as having obtained actual knowledge of the facts for the purposes of Section 12(3) of the Act, the knowledge is required to be more than merely a suspicion, supposition or opinion.  The case of Minister of Finance and Others v Gore NO provides us with the following:

“It is well established in our law that:

(a) Knowledge is not confined to the mental state of awareness of facts that is produced by personally witnessing or participating in events, or by being the direct recipient of first-hand evidence about them.

(b) It extends to. a conviction or belief that is engendered by or inferred from attendant circumstances.

(c) On the other hand, mere suspicion not amounting to conviction or belief justifiably inferred from attendant circumstances does not amount to knowledge.

It follows that belief that is without apparent warrant is not knowledge, nor is assertion an unjustified suspicion, however passionately harboured; still less, is vehemently controverted allegation or subjective conviction.

It appears from the above case that the courts view maintenance orders as having the same prescription as “other debts”. Maintenance orders would therefore prescribe within 3 years. It is also submitted that prescription would run from the moment the maintenance becomes due and payable and beneficiary has knowledge of such thereof. It is also worth noting that the duty to maintain and support one’s dependents subsists as long as the dependent is not self-supporting.

Robin Twaddle & Associates ©2017, All rights reserved. - Disclaimer