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Cross Border Maintenance Claims

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Cross Border Maintenance Claims

Maintenance Orders present different types of problems.

Although they are simply Maintenance Orders declaring that one person must regularly and for a fixed period of time pay to another a set sum of money; they may be varied or cancelled depending upon changes in the social and economic circumstances of the parties. The variable nature of these Orders means that they are not final.

One of the biggest difficulties is the enforcement of Maintenance Orders made in a foreign Court, i.e. outside South African borders; in other words, the enforcement of the Court Order across international borders.

In terms of South African Common Law, such an Order may not be enforced in our Courts.

However to remedy this problem, South Africa has established the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963. While the primary purpose of this Act is to fill a gap in the Common Law, it also provides a simplified method for enforcement of the Foreign Maintenance Court Order.

However, it must be emphasised that the Reciprocal Enforcement of Maintenance Orders Act itself only applies to countries designated by the Minister of Justice.

In terms of Section 2(1) of the Reciprocal Enforcement of Maintenance Orders Actthe Act applies only to so-called “proclaimed states”, which are limited to the following,

Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey, Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America (states of California and Florida only), Zambia and Zimbabwe.

In a situation where a country does not fall within the above definition of “proclaimed state”, the following procedure, in terms of the Act, has to be followed:

A Foreign Judgment Credit or must arrange to have a certified copy of the Maintenance Order given by the rendering Court (foreign Court) transmitted, via diplomatic channels, to the South African Minister of Justice.

Thereafter, the Minister of Justice or an official in the Department of Justice must send the Court Order to an appropriate Maintenance Court within the republic of South Africa, which is then obliged to have it registered.

After registration, the Judgment is deemed to be an Order of the registering Court, and, for certain purposes, an Order under the Maintenance Act 99 of 1998.Furthermore, registration of a Maintenance Order made by a foreign Court operates only prospectively. Therefore a Judgment creditor cannot recover any arrears of maintenance incurred before registration.

In addition, the Act covers any Order (other than that of affiliation) for the payment, including the periodical payment, by any person of sums of money towards the maintenance of any other person whom he or she is liable to maintain in accordance with the law of the country in which the Order is made.

However, it must be mentioned that because the registration of a Court Order is an administrative act and is not open to appeal in a South African Court. Provided that the prescribed procedures were followed, a registered Court Order remains enforceable until it is set aside by a South African Court.

Hence, if liability under the foreign system falls away, the order remains in force. In these circumstances, the judgment debtor's only remedy is to apply to the foreign Court for alteration or discharge of the Order, after which the new judgment can be registered under the Act.

Clinton Rademeyer

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