The ongoing battle to collect or pay maintenance has been an ongoing struggle that has had to be endured by many a single parent, and unfortunately, will continue to be a battle, as parties sometimes try to avoid their financial obligations, for whatever reason. It is an absolute necessity for every single parent to know what their rights are, when it comes to maintenance for their minor children. Obtaining a Court order, declaring what amount of maintenance will be payable, is simply the first step, in the struggle to collect or pay maintenance.
The question that is often asked, is whether you are allowed to claim outstanding maintenance, arising from a Court order and if so, how much of the outstanding maintenance can you collect. The Prescription Act 68 of 1968 sets out the different timelines to consider when prescription of a claim is considered. While most claims prescribe after 3 years, the Act makes provision for Court judgments to only prescribe after 30 years. The question now arises whether a Court order for the payment of maintenance is considered to be a judgment or not, and therefore, whether a claim for outstanding maintenance will only prescribe after 30 years. This has been an ongoing debate in the legal fraternity for some time. The Supreme Court of Appeal provided clarity on this debate when it ruled that a Court Order, directing payment of maintenance, is indeed a judgment and will accordingly be dealt with as such when the question of prescription arises.
So, can outstanding maintenance prescribe? YES, absolutely, but only after 30 years if your claim for outstanding maintenance is in terms of a Court order.
Know your rights when you have to collect or pay maintenance! However, please do not hesitate to contact us if you are uncertain what to do, when you are in the very unfortunate position of having to claim outstanding maintenance, or whether unreasonable maintenance claims are made against you.
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