With Fidelicy Nyamukondiwa
Child Maintenance Law in Zimbabwe
Maintenance is the financial support given to a dependent for the provision of food, clothing and other basic needs. Under common law, both parents have the responsibility to financially support their minor children. The Maintenance Act (Chapter 5:09) is the principle legislation in so far as child maintenance is concerned. It was mainly enacted to ensure that those entitled to maintenance benefit from it. This editorial is an abstract of child maintenance law in Zimbabwe.
Who can apply for maintenance?
If a parent or any responsible person neglects or fails to maintain a child, the child is entitled to apply for maintenance. Any person with child custody or a probation officer can apply for maintenance on behalf of the child. If for example, a grandmother is living with her grandchildren, she can apply for maintenance if the responsible person neglects to financially support the children.
If a mother neglects to financially support her child, the father can approach the court for an order compelling the mother to financially support the child. Marriage is neither a requirement nor a bar to apply for maintenance. Put differently, an unmarried person can claim for maintenance on behalf of his or her minor children. Similarly, a married spouse can apply for a maintenance order against his or her partner even where they will be living under the same roof.
Ordinarily, maintenance should be paid until a child attains the age of eighteen years. A magistrate can extend the payment of maintenance for a ‘child’ who has attained 18 years where it is necessary.
How to apply
No money is needed to apply for maintenance. It’s just a matter of approaching a Magistrates court and make a complaint under oath. The responsible person is thereafter summoned to appear in court. If he/she willfully absents self, a maintenance order can be made in absentia. A birth certificate is important but its absence does not bar a person from applying. It would be sufficient for a person to say under oath that John Doe is the father. If John disputes paternity, it would be his duty and financial responsibility to prove that he is not the father. A provisional order for the payment of maintenance must be made by the court pending DNA paternity test results.
Failure to comply with a maintenance order.
A person who fails to make payments in compliance with a court order must be arrested for committing an offence. Unwillingness to work or the incurring of unreasonable debts or obligations cannot act as defences. If convicted, a person can be imprisoned for up to 12 months. Serving jail time does not extinguish maintenance arrears. Neither does it suspend a maintenance order. An imprisoned convict can make a written application for his/her release stating that arrears have now been paid. The High Court has however emphasized in the cases of S v Chikwata HH 455/15, S v Chagomoka HH 484/15 and also S v Chiraya HB 220/17 that a prison term should be reserved for serious defaulters.
The best interests of the child are overriding in all matters concerning the child. The principle object and primary purpose of the Maintenance Act is to ensure that those entitled to maintenance are well taken care of by the responsible persons. Courts are always open to ensure children are afforded the financial and parental support they deserve.
Fiat Justitia Ruat Caelum!
Fidelicy Nyamukondiwa writes in his personal capacity. Contactable on 0785827154 firstname.lastname@example.org | @FidelNyams