Maintenance is the legal obligation that a responsible person is supposed to pay towards the welfare and upkeep of their dependants. A maintenance order can be made in respect of a parent and child, guardian and adopted child, a spouse when legally married, beneficiary of deceased estate, child and parent who can no longer take care of their selves or any other person whom the court may order to pay maintanace. This article shall however focus on parent and child mainatance. It is a fundamental right of every child to have parental care and provision of basic needs for their welfare and upkeep as provided for in the Constitution as well as international instruments like The Convection on the Rights of Children.

Maintenance is governed by the Maintenance Act [Chapter 5:9]. Maintenance is an obligation for both parents but in most cases men have been found guilty of neglecting their children. Maintenance in the legal sense is measured in monetary terms. It is therefore a reasonable amount of money sufficient for the upkeep of a child. This amount of money is determined by the circumstances of each case and there is no standard sum to be paid as maintenance. Maintenance is in most cases paid for children under the age of eighteen but a parent can still be ordered to continue paying for example when the child is now at university and requires fees.

When should maintenance be paid

Upon birth of a child both parents have an obligation to maintain their child. By operation of law and public policy, it is presumed that a reasonable parent will provide for and take care of their child. However, when one party is neglecting or refusing to maintain the child the other party can apply for a maintenance order. Maintenance is the sum payable in terms of a maintenance award by a Maintenance Court after an application. Maintenance is therefore payable after the Maintenance court, which is primarily the Magistrates Court has made an award of maintenance. Maintenance is payable for future expenses to be incurred. A maintenance claim can therefore not be made claiming amounts of money that date back for instance from the period between the child’s birth and when the complaint is made. In essence a maintenance award is for future expenses contemplated from the date of the award if the claim is granted by the court. A claim for arrears is only made in respect of unpaid amounts on an existing maintenance order as explained in the case of Chifamba vs Chifamba HH-28-15.

Procedure when making a maintenance claim

As highlighted above maintenance is paid only when there is a complaint that is made to the maintenance officer (clerk of Court at the Magistrates Court) that a responsible person is failing to provide reasonable maintenance to their dependant and the order is granted by a Magistrate. The complainant can approach the Magistrates court to make a complaint but it is advisable to engage the services of a legal practitioner who makes the complaint on their behalf. The complaint is made to a Magistrates Court in the area in which either the neglecting party resides or the court in which the complainant resides. That is called the court of jurisdiction. Maintenance complaint forms which doubles up as a summons calling upon the specified responsible person i. e father of child to attend a maintenance enquiry are filled and served. The complainant must indicate their bank account on the form or any other modes of payment to be used.

The Maintenance Officer provides a date on the face of the summons that the parties will attend the maintenance enquiry. This date must accommodate at least seven working days notice to the person receiving the summons. On the hearing date, the maintenance enquiry is conducted by a Magistrate who poses various questions to the parties and after being satisfied the court will grant the maintenance order.

Factors considered by the court when making a maintenance order

Factors considered by the court when making a maintenance order are provided for in terms of Section 6 (4) of the Maintenance Act and include the following:

1. The mode of life that the parties had been living.
2. The social status of the parties
3. The earning capacity per month of the Responsible Person
4. The special needs of the child or dependant i.e if there is a medical condition which requires regular medication then that extra expense may be factored in.
5. Whether or not the Responsible person has remarried and has another family. This tends to act to reduce the amount of maintenance payable but it does not absolve of liability. But if a spouse remarries, they cease to be entitled to be maintained by the former spouse.

A maintenance order may be varied whether upwards or downwards depending with the change of circumstances in each case. The variation can be done at the court where the order was initially granted or any other court provided arrangements for the transfer of the court records are made.

Enforcement of a maintenance order

A lot of women have had babies dumped in their hands and they have had to suffer alone at the expense of irresponsible men. They may become so timid to the extent that they believe even if they get a maintenance order, they will avoid paying. However, the law has put in place enforcement mechanisms for one to get the relief stipulated in the order. These mechanisms include:

• Garnishee orders (having the employer of the person against whom award is made directly deduct the whole or a portion of the award from the salary of the person concerned).
• Payments can be made through the clerk of court to avoid confrontations.
• Direct payments into the Complainant’s bank account. This method is easy for the purpose of proving that monies were indeed being paid through the bank statement.

What if the responsible person is out of the country?

A number of questions arise as to whether a maintenance award can be obtained against a person who is outside the Country. It is common that a responsible person may leave their family and children or abandon them whilst they are in the diaspora. The law has made certain provisions to regulate such situations.

• Section 4 of the Maintenance Orders (Facilities for enforcement) Act allows for an application to be made seeking a maintenance order against any person who is outside Zimbabwe but in a reciprocating country. A reciprocating country is defined as any country within the territory of the common wealth including England and Ireland. Notably, All countries in Southern Africa are in the common wealth.
• The Application can be made in the absence of the responsible person in terms of section 5(1) of the Act and the Applicant has to prove that the person is in a reciprocating country and the justice of the case deserves the order for maintenance.
• A court can only make a provisional order only when an application is made in terms of this section. The Order will however be of no force until it is confirmed by the reciprocating country. The order is transmitted to a court of the reciprocating country through the ministry of Justice.

What happens when the responsible person fails to pay as ordered?

In determining the fate of maintenance defaulters, our courts take an approach that promote the best interests of the child. The courts’ approached was reiterated in the case of S v Chagomoka HH-584-15 where Justice Matanda-Moyo made the following useful remarks on how maintenance defaulters must be treated

“It has never been the intention of the legislature to have defaulters of maintenance serve effective prison terms until the defaulter becomes a habitual offender. Such sentences should only be imposed on very serious wilful defaults. Once a person serves an effective prison term, his or her job is most likely to be lost. Once the job is lost, it means the children would not be looked after. The provisions of the Maintenance Act [Chapter 5:09] ought to be used to ensure that the rights and best interests of children, as enshrined in s 81 of the Constitution are upheld, by holding parents to their duty to maintain their children. The judiciary must endeavour to secure for vulnerable children and disempowered women their small but life-sustaining legal entitlements. It is a function of the State not only to provide a good legal framework, but to put in place systems that will enable these frameworks to operate effectively. Our maintenance courts and the laws that they implement are important mechanisms to give effect to the rights of children protected by the Constitution. Failure to ensure their effective operation amounts to a failure to protect children against those who take advantage of the weakness of the system.

Magistrates must strive to use other sentencing options that ensure the best interests of the children are catered for. Criminalisation of failure to pay maintenance was a way of ensuring that parents take the issue of maintenance seriously. However, magistrates must familiarise themselves with alternative sentencing principles, that ensure the interests of the children are not compromised. A prison term should be reserved for serious defaulters. Magistrates should make use of payment of fines, periodical imprisonment, writs of execution and suspended sentence.”.

Therefore, the rational for the criminal sanction is not punishment for the disobedience for punishment’s sake, but rather to coerce the defaulter to comply with the order in future. Understandingly, it is a remedy of last resort, only to be employed when all endeavours to bring the situation under control have failed, or are almost certain to fail.

This article is for general information purposes only, legal advice must be sought in all areas of the law.

In a divorce matter, the jurisdiction of the court to hear the matter is based on the domicile of the husband at the time the divorce action is instituted. Domicile is the country one treats as his permanent home or lives in and has substantial connection with.

If you are a Zimbabwean citizen and you are granted a divorce order by a court in a country in which the husband was not domiciled, the divorce order will not have any force of law in Zimbabwe until it has been registered in accordance with the law.

Recognition refers to the process of considering the foreign decree of divorce as binding. In order for a foreign decree of divorce to be recognised in Zimbabwe as binding between the parties, an application for its recognition should be made to an appropriate court. If the foreign decree of divorce relates to a marriage contracted in terms of the Customary Marriages Act (Chapter 5:07) the application should be made to the Magistrates’ court. If the foreign decree of divorce relates to a marriage contracted in terms of the Marriage Act (Chapter 5:11) the application should be made to the High Court.

Requirements to be met for a divorce order to be registered

In order for the court to recognize the foreign decree of divorce as binding, the following requirements must be met:

1. The husband was not domiciled in the country which granted the decree of divorce ( he did not treat that country as his permanent home)
2. The law of the country in which the foreign decree of divorce was granted contains provisions which correspond substantially to the relevant provisions of section 3 of the Matrimonial Causes Act.

The aforementioned said Section 3 provides the following;

Without prejudice to any other basis of jurisdiction which the High Court has, the High Court shall have jurisdiction to entertain an action for divorce, judicial separation or nullity of marriage, where the wife is the plaintiff or applicant –

If the wife has been deserted by her husband and, immediately before the desertion, the husband was domiciled in Zimbabwe, notwithstanding that the husband has changed his domicile since the desertion, or

1. If the marriage was celebrated in Zimbabwe and the wife has resided in Zimbabwe for a period of at least two years immediately before the date of commencement of the action and is still so residing, notwithstanding that the husband has never been domiciled in Zimbabwe; or
2. If at the date of commencement of the action the wife is a citizen of Zimbabwe and, immediately before that date, she has been ordinarily resident in Zimbabwe for a period of not less than two years and is still so residing.

The appropriate court must also be satisfied that the foreign divorce order is genuine and that it was granted by a competent court in the relevant country. The court recognizes the foreign decree of divorce by registering it as an order of that court. The court order is then submitted to the Registrar of Marriages.

The rationale behind the registration of the foreign divorce decree is that there is need to update the status of the parties to the divorce in the country which solemnized their marriage. The parties will be considered a married couple as long as they have not registered with an appropriate court.  The divorce decree handed down by a foreign court and submitted same to the Registrar of Marriages.

Re-marriage after divorce

After having successfully registered a foreign divorce decree in the appropriate court, either of the divorcees may want to marry a foreigner in the country in which they are resident. The party intending to re-marry must obtain a certificate of non-marriage from the Registrar of Marriages.

[1] Section 12(1) of the Matrimonial Causes Act

Are you aware that the case of Sadiki vs Muteswa HH-249-20 affirmed that the common law position that the mother of a child born out of wedlock (parents not married) is given the sole guardianship and sole custody of the child, denying the natural father of the child the same rights is unconstitutional and is no longer the position of the law Zimbabwe.

To understand the new position better, it is important to have a brief background of the previous common law position.

Old position of the law

Previously under common law the mother of a child born out of wedlock enjoyed inherent rights of sole custody and sole guardianship of the child. The father of a child born out of wedlock was just like any other third party whose only relevance was considered when it comes to the issue of payment of maintenance. The father would pay maintenance without even seeing the child he was paying maintenance for. The father of such child was equated to any third party and as such the custody rights that vested in the mother could only interfered by approaching the courts if the mother was not exercising such rights properly. It therefore followed that a father of a child born out of wedlock could not go 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 he can interfere with the rights of the mother. It was regarded that it was in the best interests of the child that the rights of the mother should not be interfered with.

New Position of the law

As highlighted above the case of Sadiki vs Muteswa HH-249-20 has brought changes in the law governing custody and guardianship of children born out of wedlock. The current and new position of the law is that the mother and father of a child born out of wedlock whether under general law or customary law can now have joint custody and joint guardianship over their minor child. The mother together with the father can exercise rights of guardianship in consultation with each other. If a decision of either parent on any matter in relation to guardianship is incompatible with the other parent’s wishes and likely to affect the life, health and morals of the minor chid and the parents cannot reach an agreement, either party may approach the High Court to determine which is in the best interest of the minor child.

The court ruled that the common law position discriminated a child born out of wedlock by treating the child as if he or she had no father save for the purposes of maintenance. The treatment of a father of such a child like any other third party in matters concerning custody, access and guardianship showed that the child was fatherless and deserving no paternal care or attention save for the purposes of maintenance. The child was in essence being regarded as a commodity of some sort given that without rights of access, custody or guardianship the maintenance contribution was essentially channelled through the mother.

It was also ruled that it is unfair discrimination to deny a child the benefits of associating with his or her biological father, which is an aspect of parental care, on the mere ground of the marital status of the parent at the time the child was born. This common law principle was inconsistent with provisions of Section 81(1) (a) and Section 56 (1) and (3) of the Constitution which provides for rights of children to parental care and non-discrimination of the basis of being born inside or out of wedlock. In conclusion, the new position of the law is that both parents of a child born out of wedlock can now enjoy joint custody and joint guardianship rights of their minor child. In deciding such cases the best interests of the minor child are of paramount significance.