Abstract
This article delves into child custody and maintenance laws of Zimbabwe in the event of divorce. It analyses the legal framework, including the Children’s Act, the Guardianship of Minors Act, the Matrimonial Causes Act, and the Deceased Persons Family Maintenance Act collectively ensuring that the best interests of children are prioritized, with mechanisms for both custodial arrangements and financial support. The articles also touches on the applications by courts, the practical challenges faced by families, and the legal processes involved in securing child maintenance. These laws empower courts to make decisions that reflect the welfare of the child, allowing for flexibility and enforcement to adapt to changing circumstances.
Keywords: Child Custody, Child Maintenance, Divorce Law, Guardianship of Minors Act, Best interests of the child, Maintenance Act
NOTE: The legal research was done using Case Rover, an AI-powered legal research tool for lawyers in Zimbabwe.
Background on Child Custody and Maintenance Law
Research using Case Rover on the role of the Guardianship of Minors Act, Chapter 5:08 states that
Prompt:
“The Act emphasizes the best interests of the child as a fundamental principle in custody and guardianship matters. It allows the High Court or a judge to grant sole guardianship or custody of a minor to either parent if it is deemed in the minor’s best interests (Section 4(1)). If parents live apart, the mother automatically gains sole custody of the minor until a court order is made (Section 5(1)). This provision ensures the mother retains custody unless a court decides otherwise. Furthermore, any custody order lapses if the parents reconcile and live together again (Sections 4(2) and 5(7)(b)).”
Using Case Rover as the main search platform l researched on the Matrimonial Causes Act, Chapter 5:13 which stated
“Section 7(1)(b) empowers the court to order the payment of maintenance for any child of the marriage upon granting a decree of divorce, judicial separation, or nullity of marriage. This maintenance can be structured as either a lump sum or periodic payments. Section 8(2) specifies when maintenance payments for a child cease, typically when the child dies, marries, is adopted, reaches the age of eighteen, or becomes self-supporting. However, maintenance can be extended beyond eighteen if the child is receiving education or training or if special circumstances justify it.”
The last researched act on Case Rover was the Children’s Act which
“establishes children’s courts with jurisdiction over matters involving the welfare of children, including custody issues (Part II, Sections 3-5). These courts are empowered to make orders regarding the custody of children, ensuring their welfare and rights are protected. Section 20 outlines the powers of a children’s court to make orders regarding the placement of children in certified institutions, foster care, or the custody of a parent or guardian. The Act emphasizes the importance of the child’s welfare in custody decisions, allowing courts to seek the opinion of the child where appropriate (Section 19(2)(d)).”
How the Acts affect the child custody and maintenance during and after divorce
Preceding research using Case Rover shows that the Guardianship of Minors Act provides for the children’s court to order the non-custodial parent to pay maintenance to the custodial parent, initiated by the mother if she has sole custody (Section 5(3)(a)). The Maintenance Act [Chapter 5:09] applies to these orders (Section 5(5)). Maintenance orders can be varied or rescinded by the children’s court, and the court can enforce orders by directing police officers to ensure compliance (Sections 5(8) and 7).
Furthermore Section 10 of the Matrimonial Causes Act addresses the inquiry into the custody and maintenance of children during divorce proceedings. If the court requires evidence to determine if proper provision has been made for the children’s custody and maintenance before granting any decree. Under Section 10(2)(a), the court can commit children into the custody of one of the parties or another person deemed fit, ensuring the best interests of the children are prioritized.
To add on part VI of the Children’s Act deals with contribution orders, which are akin to maintenance orders. Section 49 allows a children’s court to make a contribution order against a respondent for the maintenance of a child, young person, or pupil. This includes children who are the subject of inquiries or have been placed in care. Contribution orders can direct payments to be made from the earnings of the respondent, ensuring financial support for the child’s maintenance (Section 49(2)). The Act also provides for the enforcement of these orders, treating them as civil judgments (Section 51).
Discussion on the role of child custody and maintenance law using Case Law
Case law in Zimbabwe provides significant insights into how courts approach issues of child custody and maintenance in divorce proceedings and the following cases l obtained using Case Rover Case law in Zimbabwe provides significant insights into how courts approach issues of child custody and maintenance in divorce proceedings like in the following proceedings:
i. Ikekpeazu v Ikekpeazu HB 247/21
In this case, the court awarded custody of the children to the mother, reflecting the common practice of granting custody to mothers, especially when both parties agree. The court ordered the father to pay maintenance as per an existing order, demonstrating the importance of maintenance being within the non-custodial parent’s financial means. The case also highlighted the principle of the best interests of the child, ensuring that both parents contribute to the child’s welfare (Ikekpeazu v Ikekpeazu HB 247/21).
ii. Makunde v Makunde HC 282/23
This case involved a custody dispute where the court granted sole custody to the father, considering the children’s best interests. The decision was influenced by factors such as the children’s current living environment and the mother’s plans to relocate abroad. The case illustrates that while financial capability is considered, stability and continuity in the children’s environment are prioritized (Makunde v Makunde HC 282/23).
iii. Chapaner nee Cardoso v Chapaner HC 517/17
The court awarded custody to the mother with reasonable access to the father, emphasizing the importance of maintaining parental relationships. The father was ordered to pay maintenance based on his income and the child’s needs, reflecting the principle that maintenance should not be punitive but within the payer’s means. The case reinforced the paramountcy of the child’s best interests, as enshrined in both national and international legal frameworks (Chapaner nee Cardoso v Chapaner HC 517/17).
iv. Ncube v Siansole N.O. & Anor HB 119/24
This case involved a third-party custody application by the child’s aunt. The court emphasized that custody by a third party requires exceptional circumstances and must be guided by the child’s best interests. The case highlighted the procedural necessity of a curator ad litem to represent the child’s interests, demonstrating the legal framework’s commitment to safeguarding children’s welfare (Ncube v Siansole N.O. & Anor HB 119/24).
To conclude Zimbabwean case law on child custody and maintenance emphasizes the best interests of the child as the guiding principle by considering various factors, including the child’s living environment, parental financial capabilities, and the maintenance of parental relationships.
Conclusion
From the research the author did using Case Rover l came to the conclusion that, the legal framework in Zimbabwe, encompassing the Guardianship of Minors Act, the Matrimonial Causes Act, and the Children’s Act, establishes a comprehensive system designed to safeguard children’s well-being during and after divorce. These acts not only define parental obligations regarding custody and maintenance but also empower the courts to make decisions that prioritize the child’s best interests. By providing clear guidelines for custody arrangements and financial support, and by allowing for flexibility in adapting to evolving family dynamics, Zimbabwean law aims to mitigate the adverse effects of divorce on children, ensuring their continued stability and development. Ultimately, the effective application of these laws is crucial in fostering a supportive environment for children navigating the complexities of parental separation.
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