Month: April 2016

The plight of the father of an out of wedlock child

The plight of the father of an out of wedlock child

I pay maintenance yet l am denied other rights over my child, like custody and access among others.

The position of the law in Zimbabwe is why elevate the legal status of an illegitimate father to that of a spouse in a divorce situation?

The rights of access, custody and guardianship of a child born out of wedlock are vested in the mother of the child. The father has no such rights, “the legal position is that in Zimbabwe custody rights in relation to a child born out of wedlock vest in the mother of the child, the father of such child is equated to any third party and as such the custody rights that vest in the mother can only be interfered with if the mother is not exercising such rights properly”.

Muchechetere in Cruth v Manuel expounded that, It therefore follows, in my view, that a father of a child born out of wedlock cannot come to court and simply allege that because he is the father of the child, or he is richer than the mother, or he pays maintenance etc, it is in the interests of the child that the rights of the mother should be interfered with.” The learned judge further expounded that it would be elevating the legal status of an illegitimate father to that of a spouse in a divorce situation and negating the accepted principle of law that he has no inherent right in the child born out of wedlock.”

Does this position help in the child’s development? Is it in the best interests of the child?

Sonia Fashi

Can the courts compel spouses to remain in marriage when the other party is insisting on divorce?

Can the courts compel spouses to remain in marriage when the other party is insisting on divorce?

The aim of the courts is on the preservation of the marriage institution, family unity is important, but what if there is no longer love, affection and respect and one of the spouses no longer wants to be a party to that union.

The position is, the courts cannot force parties to remain in love. In a recent judgment, Muremba ruled that the courts have no power to compel couples to remain in marriage when one party insists on divorce even if the other party feels he or she is still in love. The fact that one is no longer interested in the marriage should be reason enough to end it. Why force a party into a relationship that he or she no longer wishes to be a party to, even if such party is strongly opposed to the divorce?

So as it stands, the court has no legal basis to force a relationship if it is not working and a party personally insists on divorce. Such decision must be respected by the courts. Marriage is not a prison, especially where no love, affection and respect no longer exists. A party to divorce proceedings should not be seen to justify to the courts why they want divorce. Once an application for divorce is filed, it is evidence that one or both parties to the marriage no longer want to be involved and the divorce must be immediately granted.

What implication does this have on the institution of marriage?. Is this law progressive or not?


Adultery damages

Should we really sue someone (an adult for crying out loud) for having an affair with a married man or woman?  Aren’t these adultery damages archaic? What is your take on these damages?

What does the law say pertaining these damages?

Adultery damages are legal. Justice Mwayera in a recent judgment ruled that, “adultery damages are a legal claim which is meant to protect the sanctity of marriage”. She stated that decisions of foreign courts to declare such damages unconstitutional were not binding in Zimbabwe. In terms of Zimbabwe policy and values, adultery remains wrongful and unlawful as it serves to compensate the injured party. She expounded that the marriage institution is founded upon morals and the Constitution which is the supreme law of the country that protects that very morally, underpinned relationship. Intrusion in the marriage institution by adultery therefore remains wrongful and there is nothing unconstitutional about an adultery damages claim.”

Who can sue for adultery damages?

The type of marriage determines who can sue for such damages. In a Civil Marriage [Chapter 5:11], the husband or wife can sue a third party for the said damages. In a Registered Customary Law Marriage [Chapter 5:07], it is only the husband who can sue the third party because such marriage is potentially polygamous (it allows a man, if he so wishes to marry more than one wife but the woman cannot do so). Pertaining an Unregistered Customary Law Union (UCLU), this union is not registered but lobola has been paid, in this union, only the man can claim adultery damages since the union is also potentially polygamous and women in these unions have no right to sue for adultery damages.

Who can be sued for adultery damages?

Unfortunately the law provides that, it is only the third party who can be sued for adultery damages. The third party is the person who interferes into the marriage of the spouses.

South Africa recently outlawed these damages. Should we follow suit? Should spouses be responsible for protecting and safeguarding their marriage rather than making a legal claim against someone for having a consensual affair with her husband or his wife? Why sue the third party and not the adulterous spouse for adultery damages?.