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This piece of legislation is interesting even to some of us who are not legal brains or judicial officers. It enjoins the “warring parties to come up with an amicably agreed arrangement” as to which parent shoulders which responsibility over the children.
The role of the courts in a mutually agreed arrangement, one assumes, is to sanction and formalise such an arrangement. After all it is within the home that divorce or separation finds its origins in the first place, so stresses the legislation. The legislation aims primarily to obviate or preclude, the inundation of the courts with applications by parties seeking maintenance and exclusive custodianship or guardianship of minor children.
Furthermore, the law serves to bring about equality of responsibility with respect to the needs of the children as opposed to the payment of direct maintenance to one party by another party. In other words this can be termed shared responsibility between father and mother. One might then pose a pertinent question:
“In whose custody will the minor children be while the ‘amicably agreed’ arrangement lasts?”
An interesting example was proffered by a father of three sons who is already in this type of arrangement, and who affirms that it has worked well with him, his former wife and their sons. He has custody of the children three days per week and the mother for the remainder of the days. Another question is how sustainable this arrangement is given the likelihood that divorced parents may be separated by long distances.
“Ha”, says the law. The parties should have thought seriously about this aspect, or possibility, before allowing their marriage to become irretrievably incompatible.
Regardless of the distance between them, the parents must come to an agreement and that agreement should, nay must, not inconvenience the children one iota. The distance might be one kilometre or 100km but the bottom line is that the arrangement has to be wholly agreed in the best interest of the children. Nothing more, nothing less.
Some lawyers and judicial officers, both on the bench and in the inferior courts, still believe that the mother is the only parent or person in the extended family who is capable of loving a child or children. This view is a fossilised relic and is as far from the truth as the North Pole is from the South Pole.
Love, whether for children or for one’s spouse or for sport, is not and cannot be quantified or measured or calibrated in degrees. Loving and love coupled together are a recondite and abstruse concept.
Both parents are ideally, capable of loving and showing love to their offspring. However, we should concede that for biological reasons there is more natural bounding and filial attachment between mother and child than is the case between father and child. Not every mother applies for custody because she is capable, materially; to meet all the basic material needs of a child on a daily basis and is in the “best interest” of the child. This phrase has been used in many circles including the courts, glibly and ad infinitum. Some in the legal and law fraternity have been heard saying that the best interest of the child can best be served by granting custody to the mother “even if she lives in a one-roomed dwelling or in a dump.”
As it is many a child’s well-being has been cast to the dogs because of the misinterpretation and misapplication of this antiquated principle.
The principle has come to mean many different things to different judicial officers. I make a statement here, that it should not be the duty of the courts to adjudge that a mother is the one who has the best interest of a child. Rather, I argue that it is the reality on the ground which judges and magistrates and other like institutions which should be considered in determining which parent gets custodianship of the children.
There are two key elements which are salient above all others, and above love. These elements are the material needs of a child and the environment. We all know what material needs are. They are acquired by means of money and if the courts deny a child these material needs just because the parent or relative who has them in sufficient amounts is presumed to have no love for the child, you are now ill-defining and misinterpreting the logical meaning of the “in the best interest of the child” principle. One lawyer was heard to say that “a custodianship is not about money, it is about love.”
Need I reiterate what I have just stated above: love does not exist in a vacuum. My argument here is confirmed with a situation in which two parties be they biological parents or a third party versus a parent or even in cases where a third party wants to wrestle the child from the custody of irresponsible parents.
The writer feels strongly that our Zimbabwean law, the civil law especially, needs to evolve and become a bit more scientific. Hitherto the courts are ensconced in the now archaic Roman Dutch law dictum “dura lex sed lex” (the law is harsh, but it is the law).
Yes, it is to be accepted that the law should be hard in some respects if it has to have meaning and relevance. However, modern law should be flexible. Zimbabwean civil courts are too rigid hence most of their judgments are standard judgments as if they are forged in a foundry plant. They should now embrace the “tempori parendum” principle (yielding to the times or move with the times.)
I come back nearer home, to SA. Early this year the Johannesburg municipality wanted to evict tenants who had actually become a community. They refused and went to court. The court ordered the two parties to go home and come back holding hands and beaming with satisfaction: the municipality was now going to construct new dwellings for the community. Until that happened the community would stay put. This is what we call innovative and creative law!
It is so basic and simple even from a lay perspective. Zimbabwe’s civil law fails to come down to earth where the game is played between the “warring parties.” It’s not enough to say that legislators should change the law. In progressive countries judges can do so by their judgments in their august courts in the same way that they can actually cause an amendment to the existing law to take effect by setting precedents in their judgments. High courts especially can amend a constitution in the progressive countries of the world.
The concept of shared responsibilities and equality in broken homes needs to be revised in order to address the fundamental imperatives of granting custody to either parent or a third party. The law per se does not in itself deliver justice. The law is inanimate. It is not present when the game is played. The law is a belated referee. You see, we are talking about a child. We are shaping its future. The errors we make have long term- negative effects on the child.
Zimbabwean lawyers and judicial officer will always say: “The law says.” Fine, but what do you yourself say as a custodian of justice? “The law says” is actually akin to a poor carpenter who blames his tools.
Our courts are so sedentary that they do not even bother to research as to who the culprit is in the breakup of the marriage or co-habitation. If the culprit to the breakdown of the union were to be established then that party to the dispute should be disqualified from claiming custodianship. This is scientific law. All too often, if not invariably when the two parents are wrangling for custody, the real custodian of the child or children is relegated not into the background but into oblivion. This is how our law works. It is not scientific. It is the law of the status quo. The courts have yanked children into poverty and where they wallow in squalor because the law says “in the best interest of the child”. The civil courts have contributed to the stunted physical growth of some children because of the unconducive environment and social milieu into which they are dumped when they are at a tender age.
Surely it is a crazy judgment when a court grants custody to a parent merely because he or she has a job and maid without the court verifying the statements and whether the salary or wages can meet the needs of the child. Some of us know that in days gone by the courts would ask the Department of Social Welfare to conduct an in loco inspection of the home of the applicant and then submit a report of its expert advice. Nowadays the courts are too lazy and sedentary, I suppose.
Our Zimbabwean law is not dynamic. Yes, the law has to be hard; otherwise it will be wearing dentures but the law has to move with the times. It must not be aloof from the society whose life and activity it regulates.
The media should also play its role in all this by allowing space for society to engage the courts in debate. The dichotomy between the law courts and society is just too wide for comfort.
Online Reporter