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Arrear maintenance disputes and enforcement of a maintenance order cannot be sent to arbitration in South Africa. In VJ v VJ and Another (258/2023) [2024] ZASCA 92 (11 June 2024), the Supreme Court of Appeal confirmed that section 2(a) of the Arbitration Act 42 of 1965 excludes matrimonial causes and matters incidental to them from arbitration, meaning parties cannot rely on an arbitration clause to divert a maintenance enforcement dispute away from the maintenance court.
Divorce settlement agreements often include a broad clause saying “any dispute arising from this agreement must be referred to arbitration”. When a maintenance payer later disputes liability (often relying on a dum casta clause or alleged cohabitation), they may try to use that clause to block the maintenance court and force the recipient into a private, expensive forum.
VJ v VJ matters because it reinforces that maintenance enforcement sits inside a statutory scheme designed to keep the courts accessible and effective. Parties cannot contract out of that scheme by inserting an arbitration clause. (SAFLII)
The parties divorced in 2015. A settlement agreement was made an order of court. Two features are key.
Later, the maintenance recipient approached the maintenance court on an ex parte basis to recover arrear maintenance under the Maintenance Act enforcement mechanisms, and obtained an order including an interdict affecting the payer’s bank account.
The payer objected to the maintenance court’s jurisdiction, arguing that the dispute belonged in arbitration because of the settlement agreement clause. (SAFLII)
The High Court effectively treated it as if an arbitrator should decide whether the dispute was excluded by section 2(a) of the Arbitration Act.
The Supreme Court of Appeal found that approach unsustainable in this context: the court must determine whether the Arbitration Act prohibits arbitration of the dispute, and a general arbitration clause cannot override that statutory exclusion.
Section 2(a) excludes from arbitration “any matrimonial cause or any matter incidental to any such cause.”
So the real issue becomes: is enforcing and collecting arrear maintenance a “matrimonial cause” or “incidental” to one?
The Maintenance Act creates the maintenance court system and gives maintenance courts jurisdiction over matters arising under the Act.
It also provides enforcement machinery (including warrants of execution and related remedies) to recover arrear maintenance efficiently through the statutory forum rather than private processes.
A critical practical point is that maintenance obligations may need variation, suspension, or discharge through court processes provided by statute. Maintenance courts also have statutory powers in this space.
That matters because it is very difficult (and often impossible) to square private arbitration with statutory powers that remain with the courts
A key move in the judgment is that the SCA looked at the dispute as it was presented in the maintenance court: it was about enforcing an existing order of court and collecting arrears, not a free-standing contractual interpretation dispute.
That framing reduces the force of the “but we agreed to arbitrate” argument, because enforcement of a court order is not the same as a contractual quarrel about what parties intended.
The SCA treated “incidental” as wide enough to include disputes that are connected to, or flow naturally from, matrimonial litigation and its legal consequences—especially where a statute creates a specialist forum and enforcement process.
The Maintenance Act is meant to provide accessible and effective enforcement. If an arbitration clause could routinely divert arrear maintenance enforcement to arbitration, it would undermine the statutory purpose (including speed and affordability).
The SCA’s reasoning reinforces a broader principle: private agreement cannot be used to displace statutory schemes and the courts’ role in matters the legislature has assigned to them, particularly in maintenance enforcement.
The Supreme Court of Appeal upheld the appeal and confirmed that the maintenance court could proceed. Put simply:
Even a well-drafted arbitration clause should expressly exclude:
This is not just “nice drafting”. Without carve-outs, you invite costly jurisdiction fights.
Post-divorce disputes can look like “contract disputes”, but if what someone is actually doing is enforcing an order of court, the analysis changes materially.
The practical route is usually not “force arbitration”. The payer should ordinarily bring the correct statutory application to vary/suspend/discharge the maintenance order, supported by evidence, in the proper forum.
The case dealt with spousal maintenance arrears, but the reasoning is grounded in the maintenance enforcement system and the Arbitration Act exclusion. It is therefore highly relevant to maintenance enforcement generally.
Yes, potentially. VJ v VJ does not say arbitration is always impermissible between former spouses. It says that maintenance enforcement and arrears recovery, as a matter incidental to a matrimonial cause and regulated by statute, is not arbitrable.
If you are owed arrear maintenance, you do not have to be pushed into private arbitration just because a settlement agreement contains an arbitration clause.
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