The Sunday Mail
Where maintenance is granted for a spouse or against one of the parents of a child, the motive is to make sure that the child or the spouse’s welfare is catered for.
Coddy Fungai Naymundanda
This is done in terms of Section 8 of the Maintenance Act (Chapter 5:09) which looks into the appropriate level of maintenance payable.
Maintenance can be defined as financial support paid by a person for the benefit of a dependent spouse or civil partner and or dependent children. Spouses or civil partners are required to maintain each other according to their means and needs.
Parents, whether married or not, are responsible for the maintenance of their dependant children. If the parties cannot reach an agreement about maintenance, an application can be made to the court for a maintenance order.
That the duty to maintain the child lies on both parents is unavoidable, though the common trend is that men have been the main subjects of such actions. Whether this is due to societal and traditional dictates which view men as breadwinners is not clear.
Nonetheless, it is undeniable that some men in Zimbabwe are now crawling out of the medieval dustbins of pride by gathering their guts to also claim maintenance from the mothers of their children or their spouses.
This might be due to the fact that gender imbalance advocacy efforts have clearly empowered some women to the extent that they are even capable of looking after all the children, pay all the bills and even take care of the man himself.
Such is the reality of life today and turning a blind eye on that is tantamount to running away from cold land only to find oneself in frost land.
The general principles are that a child with divorced parents is entitled to be maintained by them, and they are correspondingly obliged to provide everything that is required for proper living and upbringing according to their means, standard of living and station in life.
When an order is made by a maintenance court, the rate is generally fixed on the basis of the needs of the child and the respective means and circumstances of the parents as they can be reasonably foreseen.
The main problem is when one wants to have the amount of money payable reduced or increased. This principle is usually termed as the variation of the terms of a maintenance order and such applications are usually handled by the court which would have originally granted the maintenance order.
One can imagine the load the courts might have faced during the hyper-inflationary era where maintenance orders were constantly varied as a result of the sums payable being eroded by inflation.
It must be remembered that in an application for the increase or reduction of maintenance, the court will not readily interfere with the original award, but there is a duty on it to do so where sound reasons for interference exist. Such reasons differ but the commonly cited are loss of employment, overwhelming debts, reduced or increased income, sickness which can lead to incapacity, increase of responsibilities, to mention but just a few.
Proof of earnings or anything to prove that there are changes in personal circumstances are essential to have the maintenance award varied. The only difficulty faced by many is to deal with parties who forge or act in cahoots with the employer to produce fake salary slips, just to frustrate the other party.
The courts are guided by the fact that maintenance proceedings are not trials where one side emerges victorious and the other vanquished but are inquiries for the benefit of the minor children or dependants. In such an inquiry, the court itself is concerned to see that the interests of the child, subject to litigation, are safeguarded. This is crucial and impacts on the approach of the court in such matters.
l am of the opinion that the strict rules in ordinary civil actions can be relaxed to some extent in relation to an inquiry of this nature, because the court as upper guardian of all minor children is particularly concerned with the welfare and interests of all minor children, and the fullest inquiry should be afforded.
Prospective applicants should not, however, mistake this relaxation of the courts’ rules as a weakness or the courts’ tolerance of litigants’ carelessness and lack of observance of rules but points to the importance of the inquiry.
Thus, it should be remembered that it is not a standard that can be used to grant validity to invalid proceedings all in the name of protecting the best interests of minor children.
Importantly, the suit is between the minor children and their father and the mother is their agent or the other way round. Sadly, many usually misconstrue and correctly so, that it is the parent who is instituting the proceedings for his or her benefit, instead of the child.
The constant belief by most men is that it is hard to part ways with their money where they strongly believe that another man now courting their ex-spouse will spend it or she will spend it to better herself than for the benefit of the child.
Whether this is true or not, one must live with the practical realities of life that no periodical audit reports or accounting statements of how the funds were used are submitted to the court and the one paying.
Thus, in court actions, visiting the custodial parent with an award of costs should only be done in cases of abuse of the process by such parent. Otherwise where he or she acts on behalf of the children, the issue of costs should not arise.
In terms of the Maintenance Act (Chapter 5:09) the State bears some of the costs for the issuance of process and enforcement of orders. In the circumstances, the parents should also shoulder some of the costs of litigation instituted on behalf of the minor children.
The law demands compliance with maintenance orders and where one does not comply, they are charged with contravening section 23(1) of the Maintenance Act (Cap 5:09) which criminalizes that inaction and is meant to induce the party to pay the arrears as ordered.
While lack of means may be a defence to the charge, it must be raised if one wishes to do so. However, the main predicament which befalls many is that they fail to make any payments for months, leading the other party to report them to the police.
In such cases, the cumulative maintenance arrears would have reached unimaginable levels and it might not really assist an accused to argue that he or she could not afford to pay.
If dissatisfied about an award of maintenance, the only way to resolve that where there are proper grounds is by way of appeal whilst there is still time. The law protects the vigilant and not the sluggard.
This is essentially so because the penalty provided for non-compliance with the maintenance order in contravention of the Act is very harsh as it does not provide for an option of a fine but custodial term not exceeding one year.
This clearly shows the intention of the legislature on the nature of sentences to be imposed for non-compliance with maintenance orders. As stated earlier, the court is the upper guardian of all minor children and a party’s conduct of failing to comply with a maintenance order designed to protect the welfare of children’s needs is viewed seriously by the court.
Another complex situation which confuses a lot is where an order has been made in favour of more than one child and the amount due to each child under the order has not been apportioned or in other words divided.
For example, where an amount of say $700 is awarded for the maintenance of four children without specifying how much each should receive.
This problem usually occurs when one of the children dies and the parent starts paying a reduced amount, having deducted an amount for the deceased child without approaching the upper guardian of the child – the court.
This is not allowed by the law and such deductions are not recognized and one can still be criminally charged for not complying with the court order.
This is because the Maintenance Act specifically states that the order shall not cease with respect of a child’s death but shall remain in force until varied or discharged by the court. Without a variation order having been made in terms of the Act, the party is under a duty to pay the amount as ordered towards the maintenance of the surviving children. One is bound by law to pay the money.
The above is testimony that variation of maintenance awards can be possible where sound reasons can be furnished to the court.
It would, however, be improper to seek reduction where the other party can prove that one frequently plays golf, goes on holidays, hosts dinners, parties on a constant basis, has membership to exclusive clubs and enjoys other privileges of a related nature.
Clearly, this is a case where the court must take a hard-headed view of the means of the applicant and not be misled by appearances. Such an approach is really called for especially where the applicant would be exceptionally frugal with the truth.
At the end of the day, it goes without saying as Professor Welshman Ncube rightly pointed out in one of his writings, there should be no pleasure without responsibility.
Coddy Fungai Nyamundanda is a legal practitioner who writes in his personal capacity. Feedback: [email protected]_
