If You Are Divorced Pay Your Maintenance!

In 1993 Simon and Jill Arcus divorced. They signed a consent Order which required Simon to pay monthly maintenance to his wife until she died or remarried. He also agreed to pay maintenance for their two minor children until they became self-supporting. The agreement between them was made an Order of Court.

Written By of Cowan-Harper-Madikizela Attorneys

Despite the Order of Court Simon failed to pay maintenance to his wife or their two minor children.  The minor children became self-supporting in 2002 and 2005.  It is interesting that although she had the right to do so, Jill Arcus did not take any steps to enforce the Order of Court.  She only started to take steps to enforce the Order in 2018, 25 (twenty-five) years after her divorce.  At that time her lawyers wrote a letter of demand to her former husband demanding payment of the arrear maintenance, which at that stage amounted to approximately R3.5 million.  

Mr Arcus agreed to start paying her monthly maintenance but he refused to pay the arrears. It appears that at that stage Mr Arcus, some 25 (twenty-five) years later had acquired some assets. Jill Arcus had a Warrant of Execution issued authorising the Sheriff to attach and sell her former husband’s assets for the arrear maintenance that he owed her.  

Simon Arcus went to the Cape Town High Court for an Order to declare that any arrear maintenance he owed, excepting for that which was less than 3 (three) years old, had prescribed under the Prescription Act because the claim was not enforced timeously.  

The Cape High Court disagreed, and in a recent judgment the Supreme Court of Appeal also disagreed, and Simon Arcus now has to pay the arrear maintenance.  The Supreme Court of Appeal has held that a maintenance claim, which has been made an Order of Court, will only prescribe after 30 (thirty) years.  

To add to his misery Mr Simon Arcus must now also pay his ex-wife’s legal costs, including the costs related to the Appeal to the Supreme Court of Appeal.  

The matter is reported as Simon Roy Arcus v Jill Henree Arcus (4/2021) [2022] ZASCA 9.

Lennard Cowan

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