The Sunday Mail
Legal Matters with Tichawana Nyahuma
It was Professor Welshman Ncube who once said “there is no pleasure without responsibility”.
This remark was apparently directed particularly at those among us who have children all over the place but fail, refuse and/or neglect to ensure that their needs are catered for.
Some of those men have the lame excuse that because the mother is claiming maintenance from two other men for two children, then she is an unworthy person who should not claim the assistance because she is producing children for financial gain.
This is obviously nonsensical and we all know it.
Under our law, each parent has an obligation to maintain their children, each according to his or her means. Deliberately refraining from doing so is an offence.
Maintenance is provided for under the Maintenance Act (Chapter 5:09). I must say this is one of the most progressive pieces of legislation on our statute books.
Its main purpose is to ensure that those who take pleasure in the act of procreation also take care of their children, be they the mothers or the fathers.
The old adage that one cannot eat his own cake and have it is appropriate.
Minors of, especially, estranged couples are usually in the custody and care of their mothers. Now, because some fathers do not reside with their children, they tend to forget and neglect their responsibilities and obligations towards these children.
This is most foul.
If upon discussion and request, the father continues to be irresponsible, the mother is entitled to seek the courts’ assistance to get the father to play his part in raising his children.
Incidentally, it is not only the natural mother who is entitled to claim maintenance for the minors, but any person who has custody and care of the children in question.
Where, for instance, the children were in the custody of their mother and she migrates to another country or dies resulting in the children being placed in the custody and care of their grandmother, aunt, other relative or any other person not even related to them, then that person is – at law – also allowed to claim maintenance for the children from their father.
This is logical because the law is intended to protect the children. It should, therefore, not matter who approaches the court as long as the person does so for the sole benefit of the children.
It should be noted, however, that if the claimant goes on to abuse the funds, then any other person may approach the court with evidence so that appropriate action for the benefit of the children is taken.
The inverse is also true though uncommon.If the children are in their father’s custody or any other person, then the father or that other person is entitled to claim maintenance from the errant mother.Maintenance for the children does not only arise because the parents no longer reside together or only where they are divorced.If one of the spouses becomes irresponsible and neglects his/her responsibilities even though they live under the same roof and sleep on the same bed, the other parent is perfectly entitled to beat the path to the Maintenance Court for relief.
If the parties are going through a divorce, the maintenance claim doesn’t have to wait for the conclusion of those proceedings because whatever the Maintenance Court would have awarded can always be assimilated into the divorce order when it is granted.
In a case where the child, (“the dependent” according to the Maintenance Act), has attained the age of majority but is still in need of support because, for example, he/she is still at school/college,the child has the right to approach the Maintenance Court for relief.
He/she does not need anyone else’s support, authority or representation to claim the maintenance from the responsible person.
The process
`The procedure at the Maintenance Court is pretty straightforward.
The claimant may have to pay the prescribed fee (sometimes there is no fee at all) and then complete the relevant forms, one of which is a summons or court application which is served on the responsible person by the police directing him/her to appear in the Maintenance Court on a particular date and time to answer to the claim.
Although proceedings are conducted before a magistrate, when presiding over a maintenance hearing, he or she sits not as a magistrate but as a maintenance officer. His/her role is to conduct an inquiry into the matter. It is not a trial.
In particular, it will be to discover the financial means and obligations of the responsible person and then compare that with the needs of the children.
If the responsible person has other children that he takes care of, that is also taken into account by the Maintenance Court before arriving at an appropriate award for the claimant.
“Children” refers to biological children and includes any step-children.
There are some mothers who believe that the “small house’s” or adulterine children should not be considered. That is not so. Those children deserve and are entitled to be looked after by their biological fathers.
The award
Once the maintenance officer issues an award, the responsible person must abide by it. Failure to do so is a criminal offence which attracts a maximum of 12 months imprisonment, at the court’s discretion.
That provision does not sit well with me because once the responsible person is jailed, that removes all capacity to look after the children.
So are there any options?
I believe that other methods of enforcement that are non-custodial, such as community service, be employed. After all, the children will suffer more when the parent is in jail.
Since around 1990, more women in Zimbabwe have gained access to wealth, thanks to the advent of Independence and Government policies that removed barriers to education and access to economic opportunities by women that were once the preserve of men under the Smith regime.
Because of something that I have failed to quite place my finger on, but which I can only speculate to be pride, some women raise children single-handedly maybe because they just want to spite the fathers, or because they believe the courts will not help them.
I have to say such attitudes are wrong because while it may be true that the mothers are able to take care of their children today, who knows what the future holds? Is it not better to claim the maintenance and then invest for the children?
After divorce
So what is the position when the spouses divorce? Why is maintenance for the erstwhile spouse necessary?
TO answer that I can do no better than quote the Honourable Justice Chitakunye in Matongo v Matongo (HHC14/2012) where he quoted Honourable Justice Gowora in Kangai v Kangai (HH51/07) thus: “A woman who has been divorced is no longer entitled as of right to be maintained by her former husband until her remarriage or death. Where the woman is young and had worked before the marriage, and is thus in a position to support herself, where there are no minor children, she will not be awarded maintenance.“If she had given up her job to look after the family she will be awarded maintenance for a short period to allow her time to get back on her feet. Where the divorced woman is middle-aged she will be given maintenance for a period long enough to allow her to be trained or retrained.
“On the other hand elderly women who cannot be trained or remarried are entitled to permanent maintenance.
The honourable judge referred to Chiomba v Chiomba 1992(2) (ZLR197) wherein the Supreme Court endorsed the statement made in Hahlo South African Law of Husband and Wife 5 ed at pp 363-4 that: “It remains to be said that with the emergence of the ‘working wife’ and ‘woman’s liberation’, the attitude of the courts towards the award of maintenance has been changing the world over.
“Cases where maintenance is awarded to the husband, while still rare, are no longer unknown. The idea that marriage ought to provide the wife with a ‘bread ticket for life’ is on its way out. Not long ago, an ‘innocent’ wife who obtained a divorce on the ground of her husband’s misconduct could count on being awarded maintenance until death or remarriage almost as a matter of course.
“Today, the courts are no longer prepared to award maintenance to a young woman who has been working before marriage, and can be expected to work again after the divorce, at least if there are no young children of the marriage.
“At most, if she has given up her job, she will be awarded a few months’ maintenance to tide her over until she finds a new one.“Middle-aged women, who have for years devoted themselves full-time to the management of the household and care of the children of the marriage, are awarded ‘rehabilitative maintenance’ for a period sufficient to enable them to be trained or retrained for a job or profession.
“‘Permanent maintenance’ is reserved for the elderly wife who has been married to her husband for a long time and is too old to earn her own living and unlikely to remarry.
“As Mr Justice Moorehouse remarked in the Canadian case of Knoll [(1969) 2 QR 580 at 584; 6 DLR (3d) 201 at 205]: ‘In this day and age the doctrine of assumed dependence of a wife is in many instances quite out of keeping with the times … The marriage certificate is not a guarantee of maintenance’.”
It would be superfluous for me to add anything to these words by these learned judges except one point which was apparently not referred to.
It is that the other reason why our courts now frown upon spousal maintenance upon divorce is that they are now more inclined towards “a clean break” unless one of the spouses caused the other to abandon his/her vocation during the subsistence of the marriage.
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