Family law

Matrimonial disputes, Divorce, Custody applications, Cohabitation agreements, Maintenance

General

Family law or matrimonial law is the body of law regulating family relationships, including marriage, civil unions, divorce, child custody, and the best interests of the child, maintenance, child abuse and domestic violence.
“As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history […]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it’s a paradise, for judges a purgatory.”— Albie Sachs[3]

Subfields

Divorce
Maintenance (spousal and child)
Guardianship and care of children (custody)
Contact with children (access)
Protection Orders / Domestic Violence

Legislation

Maintenance Act, Act No. 99 of 1998
Divorce Act, Act No. 70 of 1979
Matrimonial Property Act, Act No. 88 of 1984
Mediation in Certain Divorce Matters Act, Act No. 24 of 1987
Domestic Violence Act, Act No. 116 of 1998
Children’s Act, Act No. 38 of 20055
Civil Union Act, Act No. 17 of 2006

Case Law

Failure to pay maintenance can haunt you for up to 30 years

In Arcus v Arcus 2022 JDR 0062 (SCA), the legal question which the Supreme Court of Appeal (SCA) was faced with was whether a maintenance order constitutes a judgment debt and accordingly prescribes after 30 years or constitutes any other debt and accordingly prescribes after 3 years.

When the parties divorced on 27 July 1993, they concluded a consent paper which inter alia provided that the appellant would pay maintenance for the respondent until her death or remarriage, and for their two minor daughters until they became self-supporting. The consent paper was made an order of court. The appellant’s obligations to pay maintenance in respect of the minor children terminated during 2002 and 2005, respectively, when they became self-supporting.

Although the appellant failed to pay the maintenance specified in the consent paper, the respondent did not take any steps to recover the arrear maintenance until December 2018, when she caused a letter of demand to be sent to the appellant via her attorneys. Despite the demand, the appellant failed to pay the arrear maintenance, but commenced paying the monthly maintenance due to the respondent from January 2019.

The appellant lodged an application in the maintenance court for the retrospective discharge of his maintenance obligations in terms of the consent paper (the discharge application) on 27 August 2019, which application was still pending.

The respondent caused a writ of execution to be issued in respect of the arrear maintenance of some R3.5 million on 17 February 2020. The writ was served on the appellant on 18 March 2020.

On 19 June 2020, the appellant brought proceedings in the Western Cape Division of the High Court, Cape Town (the court a quo) for an order, inter alia staying the writ of execution pending the determination of the discharge application. He also applied for a declaration that all maintenance obligations under the consent paper which accrued before 1 March 2017 (being the due date for payment of maintenance three years prior to the date of service of the writ) have been extinguished by prescription.

The appellant argued that since a period of 25 years had elapsed and maintenance had not been paid throughout the subsistence of that period, that the debt had become unenforceable due to prescription.

The court a quo held that the maintenance obligations in the consent paper arose from a judgement debt as contemplated in section 11(a)(ii) of the Prescription Act and are consequently subject to a 30 year prescription period. The appellant appealed this judgment.

The SCA dismissed the appellant’s contention and held that an undertaking to pay maintenance in a divorce order constitutes a “judgment debt” as defined in section 11(a)(ii) of the Prescription Act 68 of 1969 (“the Act”) as they are final, executable and appealable and thus subject to 30 years’ prescription period.

The importance in the distinction between a judgment debt and any other debt is that a judgement debt prescribes only after 30 years, whereas any other debt prescribes after 3 years.

Frequently asked questions

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What are the grounds for divorce?

In South Africa there are only three grounds for divorce, two of which are rare:

  1. Irretrievable breakdown of the marriage

The relationship has deteriorated to the point where it cannot be restored. According to the Divorce Act, Act No. 70 of 1979, certain circumstances can be classed as causing irreversible damage to a marriage:

  • Separation for a continued period of at least one year;
  • Contrary to common belief, and what was the case historically, adultery in itself is not grounds for divorce. It is no longer possible to sue a third party for “alienation of affection”. Adultery is the reason why one spouse may feel there is no likelihood of reconciliation and thus the marriage has irretrievably broken down;
  • The defendant has committed multiple crimes and/or is serving time in jail;
  1. Mental illness; and

Continuous unconsciousness for a period of at least six months.

Can I prevent the biological parent of my child from having care and contact if maintenance is not being paid?

A parent may not withhold payment of maintenance if he/she is not allowed by the other parent to exercise his/her right of access to a child. The flip side of the coin is that a parent may not refuse the other parent access to a child when the latter does not contribute towards the maintenance of that child.

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Who must provide maintenance?

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child must be supported or maintained by:

  • his or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or
  • his or her grandparents, whether or not the child’s parents were married to each other. However, this varies from case to case.

The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:

  • The family member who claims support is unable to maintain himself or herself.
  • The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.
    • The main requirement of the means test is that the person who is liable to pay maintenance must have MEANS and the maintenance claimed must be REASONABLE.
Maintenance defaulters, be warned! A new tracking system is on the cards

Reference: https://www.justice.gov.za/docs/articles/20210209-MaintenanceDefaulting.html

A new system has recently been introduced by the Department: Justice and Constitutional Development to track down maintenance defaulters.

For many years, the Department has battled with the physical tracing of maintenance defaulters which caused constant delays in finalising maintenance applications.

Back then, according to the Senior Legal Admin Officer, Ms Josephine Peta, officials had to physically track down maintenance defaulters in order to ensure their attendance in courts. However, she admits, this has proven to be a challenge as maintenance applications would be issued but could not be processed due to defaulter’s whereabouts being unknown.

“This process rendered the maintenance application ineffective as the courts could not process applications or even adjudicate matters due to the non-attendance of the other party,” she explains.

Until recently, the Department has since announced a new tracking system which will be using various online databases and “information hubs” to trace maintenance defaulters. These will enable the courts to finalise more cases and assess the finances of parents who should be paying child support.

Explaining the process, Ms Peta says the Department will use Companies and Intellectual Property Commission (CIPC) registrations, cellular phone numbers registered with network service providers, information from credit bureau, vehicle registrations, as well as other paper trails to find maintenance defaulters.

Ms Peta further reveals most defaulters would conceal their financial records when they appear before the court, meanwhile they are business-owners and shareholders in various companies.  “However, with this new system, we will be able to link defaulters to their businesses and track their assets among other things. This will assist the court to determine the financial positions of defaulters and oblige them to take care of their children accordingly,” says Ms Peta.

Ensuring that children have food on the table, asserts Ms Peta, is the Department’s main priority and due to that, it has committed itself to attend to cases with 48 hours after they are opened. She adds that the Department also has a key performance indicator which commits to finalise every maintenance cases within 90 days from the beginning of the process.

Ms Peta highlights that courts are empowered to create this system by the Maintenance Amendment Act of 2015. For instance, she shares, in 2018; the provision relating to obtaining personal details of the maintenance defaulters was introduced. However, the provision had limitations as it related to obtaining the details of the maintenance defaulters from the cellular phone network providers only.

“As a result, research on this provision was done and it was found that a lot of people buy their sim cards on the streets and as such, these sim cards were not registered hence their information could not be obtained. Also, in instances where the information is sought, it would be outdated. The Department has thus used the provisions of the Maintenance Amendment Act of 2015, Section 6 of the Maintenance Act of 1998 and Section 28 (2) of the Constitution of the Republic of South Africa to create the system”, she explains.

Even so, Ms Peta noted that they are aware of risks of using the system and have put measures in place to comply with the Consumer Protection Act (CPA) as well as the Protection of Personal Information Act (POPIA) to ensure that the information obtained on defaulters, will not land in the wrong hands.

“Due to this, only designated officials will be trained and granted access to the system. Their access will be linked to a unique reference number as well as the case number to prevent unauthorised access to the system. The utilisation of the system by these designated officials will also be monitored by their supervisors who will also conduct weekly verifications,” indicated Ms Peta.

She concludes by this ‘friendly’ warning to maintenance defaulters: “Please take care of your child; if you are not, we will get hold of you in one way or another and make you accountable – just do the right thing.”

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