Month: August 2022

Variation of Maintenance

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DID YOU KNOW…..That a maintenance order can be varied?

In the event that the circumstances have changed after obtaining an order for such from a competent Court, one can make an application for variation of the order. The circumstances can include the child’s age as well as changed social and economic realities amongst other factors. A maintenance order can be varied either upwards or downwards.

In the case of Hora v Tafamba it was held that the role of a Magistrate in maintenance cases is to;

“Generally, the duty of a magistrate in a maintenance application, more particularly where the parties are unrepresented, is that of an investigative magistrate. He is not merely an umpire in a dispute between two sides. He is the upper guardian of the most important party, the child. He must therefore seek out the relevant facts. He must ask whatever questions are necessary to enable him to give an adequate judgment. He must aim to give the child reasonable financial support without placing an unfair burden on either parent.”

Where circumstances have changed the court will take into account the extent of the change as well as the needs of the minor child/ren. It is important that the applicant in a case for upward variation be in a position to justify the amount that they are claiming as they may at times be called upon to provide a breakdown of the sum that they are claiming from the respondent in the matter.

As with all matters involving children, the guiding principle is that the best interests of the child are of paramount importance. Whatever is decided should be in line with this legal principle.

This is for general information purposes only. Seek legal advice from your Lawyer.

The New Marriages Act – [Chapter 5:15]

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The Marriage Act [Chapter 5:15] (hereinafter referred to as the “Act”) seeks to repeal the current Marriage Act [Chapter 5:11] and the Customary Marriage Act [Chapter 5:07]. These two statues catered to the different marriage regimes in Zimbabwe. The Act looks to have all marriages in Zimbabwe governed by one statute.

In terms of section 2 of the Act, the President of the Republic of Zimbabwe will announce the date from which the Act will become operational:

1 Short Title and Date of Commencement

(2) This Act shall come into operation on a date to be fixed by the President by notice in the Gazette.

To begin with the Act pegs the minimum age of marriage at 18. There are various statues that have been amended as a result of this provision, such as the General Law Amendment Act. The Guardianship of Minors Act prior to its amendment provided for the marriage of a minor with the consent of their parent/s or guardian/s. The Act seeks to prevent the exploitation of child/ren by introducing a jail term and or a fine for adults that facilitate child marriages:

3 Minimum age of marriage

(3) Any person, other than the child concerned, who contravenes subsection (2), shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

[This provision excludes ONLY the child from criminal liability, and imputes the liability on the parent/s or guardian/s of the minor.]

The above cited provision seeks to safeguard the rights of the girl and boy child by advocating for the abolition of child marriage. This change will also curb the extent of sexual exploitation of the children by sexual predators.

Marriages in Zimbabwe are between two parties of the opposite sex (male and female) that are eighteen years of age and above. Despite neighboring jurisdictions observing same sex marriage it is emphasised that in terms of the laws of the country same sex marriages are not recognized nor marriages of parties that have a certain degree of relation. Section 4 of the Act provides that both parties to the marriage must consent to their union for it to be solemnized.

Another change that has been introduced by the Act is the addition of Chiefs as marriage officers when it comes to solemnizing customary law marriages in their districts.

Prior to the Act there were three types of marriages that were recognized under the laws of the Zimbabwe. The marriages are listed below in accordance to their hierarchy;

  • Civil Marriages in terms of the Marriage Act [Chapter 5:11]
  • Customary Marriage in terms of the Customary Marriages Act [ Chapter 5:07]
  • Unregistered Customary law union.

The Act now recognizes more marriages in Zimbabwe.

  1. CIVIL MARRIAGE

This is a monogamous marriage, which means that only one husband and one wife are involved. In the event that a spouse marries someone else, they have committed the crime of bigamy. An offended party in this sort of marriage (by virtue of their spouse’s infidelity) may opt to sue for adultery damages.

  1. CUSTOMARY LAW MARRIAGE

This marriage is between one man and at least one wife; it has the potential to be polygamous depending on the male counterpart. Only the husband in this type of a marriage can marry more than one wife; with the wife in such a marriage not being able to marry another husband. The husband can sue for adultery damages in the event of infidelity. If the husband has only one wife, the wedding can be upgraded to a civil marriage, eliminating the customary law marriage.

  1. UNREGISTERED CUSTOMARY LAW UNION

This is a union where lobola is paid by the husband to the wife’s family, but the couple do not register the marriage hence the title unregistered customary law union.

The Act now recognizes in addition to the 3 marriages, the Qualified Civil Marriage and the Civil partnership. In terms of the Act the number of marriages that will now be observed in Zimbabwe has increased from the traditional 3. The marriages have certain aspects that make them valid in terms of the law.

Of importance to note is the fact that all the marriages will be equal in terms of the law. What this means in terms of Estate Administration and inheritance is yet to be discovered. The next article will focus on the new marriages that are introduced by the Marriage Act [Chapter 5:15].

This article is for general information purposes only. Please contact a Lawyer for advice.

Best Interests of the Child

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BEST INTERESTS OF THE CHILD

This is a legal concept that has been adhered to by the courts when it comes to matters that involve minors such as custody, access, or guardianship. The Courts in determining matters pertaining to children are guided by the principle of the best interests of the minor child. The Constitution provides;

Section 19: Children

  • The State  must  adopt  policies  and  measures  to  ensure  that  in  matters  relating  to children, the best interests of the children concerned are paramount.

Section 81: Rights of children

  • A child’s best interests are paramount in every matter concerning the chil

BEST INTERESTS OF THE CHILD ENTAILS

Some of the factors considered by the Courts are:

  1. The relationship between the parent and the child paying attention to the level of emotional attachment and compatibility (love and affection between child and parent).
  2. The parent’s capacity for interaction with the child, as well as their awareness of, sensitivity to, and comprehension of the child’s feelings.
  3. The parent’s character, physical condition, and mental health condition.
  4. The capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires.
  5. The stability, or lack thereof, of the child’s present surroundings in light of the merits of upholding the status quo.
  6. The gender and age of the child/ren.
  7. The merits or lack thereof of keeping siblings together.
  8. The parent’s ability to give the child guidance as and when such is needed.
  9. The parent’s ability to provide for and take care of the child/ren.
  10. The ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development.
  11. The child’s preference (parental preference), if the court is satisfied that in the particular circumstances the child’s preference should be taken into consideration.

These factors above are not exhaustive and were listed to give the reader some insight into what the Courts take into consideration when making their determinations.

This article is for general information purposes. Seek legal advice from a Lawyer.