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Claiming arrear maintenance with a maintenance order
26 April 2022  | Robert Dobie
Failure by a party to comply with a Maintenance order that was granted by a competent Maintenance and/or Divorce  Court in regards to either spousal maintenance or maintenance regarding minor children is some what of a recurring theme in civilisation.

Each and every day Maintenance Courts around South Africa deal with this almost everlasting problem of non compliance towards Maintenance Orders.
Ex spouses and/or biological fathers or mothers tend to struggle in obtaining much needed maintenance compensation from their not so significant ex other.    
The question that should be asked and answered is, on what basis an aggrieved party or a party in whose favour a maintenance order was granted can approach a Maintenance Court to recover the arrears maintenance from the defaulting party ?

Section 26 of the Maintenance Act 99 of 1998  (hereinafter referred to as the Act) 
makes provision for any party who is in possession of a maintenance order to approach a Maintenance Court and recover any arrear maintenance, as well 
as interest on the arrear amount  from a party against whom such an order was made and/or defaulted to perform in terms of such an order.

Furthermore the Act provides three distinctive ways in which arrear maintenance may be recovered from a party in default of a maintenance order. 
Section 27 of the Act provides for the sale of the movable property of the person in default of a maintenance order and even provides that a Maintenance Court can make an
 order for the sale of the immovable property of such a person, should the value of the movable property be insufficient and the circumstances surrounding the matter provides 
for such an order to be made.

Section 28 of the Act   provides for a Maintenance Court to make an order for payment  in terms of 
an emolument attachment order against the salary of the defaulting party, until such unsatisfied arrear
 maintenance and interest is paid in full. As a last remedy the Act, under Section 30 provides for a Maintenance Court to make an order in terms of the attachment of any debt. 
In the recent case of Simon Roy Arcus v Jill Henree Arcus (4/2021) [2022] ZASCA 9, an Appellant was ordered to pay arrear maintenance of more than three million Rand towards the Respondent, after the Appellants failure to comply with a maintenance order that was made by a  Court  more than 20 years after the parties divorce from each other in 1993. Furthermore the Supreme Court of Appeal ruled that a maintenance order is to be considered as nothing less than a “judgement debt” and for that reason only prescribes after a period of 30 years.

In conclusion is it important for a party in possession of a maintenance order to know their right regarding the recovery of arrear maintenance, as well as their responsibility to either seek legal help or to approach a Maintenance Court on their own behalf. The non compliance with an order that is made by a Court, which includes a maintenance order is a criminal offence and is punishable by way of imprisonment or on the alternative a fine.  
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