DNA results can stop maintenance claim

Where the father disputes paternity, the court still orders him to pay maintenance in the interim

Trust Maanda
Legal Position
THE law in Zimbabwe obliges a responsible person to provide maintenance for a minor child.
A responsible person is a person who is responsible for the paternity of the child. The father has a duty to pay maintenance for his minor child. You can defeat a maintenance claim if you are not the responsible person.
Where the father disputes paternity, the court still orders him to pay maintenance in the interim.
In Zimbabwe, you can be ordered to pay maintenance even while you dispute paternity.
Can you be forced to pay maintenance while disputing paternity?
The Magistrates Court will often order “interim maintenance” while paternity is being proved or disproved.
This is because the law puts the child’s best interests first.
The best interests of the child are paramount. The court won’t leave a child destitute just because paternity is in dispute.
This may be unfair to a father who will turn out to be not the father after the test for paternity is done.
This is how it works: the mother files for maintenance at the Maintenance Court. You deny paternity. The court can order DNA testing.
Until results come back, the court can still make a provisional maintenance order. This means while you wait for proof of paternity or lack of it, the court will order you to pay maintenance.
The child must live to prove whose child he or she is. If the DNA test proves you are not the father, the order is discharged.
If you are, it is confirmed.
The court prefers DNA evidence. You can apply for an order compelling DNA testing. If you paid maintenance, and later DNA proves the child is NOT yours, can you recover the money?
This is the tough part.
As a general rule, no, you cannot easily recover it. Maintenance is money spent for the child’s upkeep in the past, not a debt. Once paid, it is considered “consumed” for the child’s benefit. The law does not automatically give you a right of reimbursement.
Maintenance is not a debt to the mother. It is support for the child. So even if paternity is later disproved, the court asks: “Was the money used for the child?” If yes, it won’t order repayment. But if you can come to court, proving your claim under a cleverly crafted claim, you may succeed.
It may be tantamount to a fraud if the mother actually knew who the father was, but falsely indicated you as a father.
A man who voluntarily acknowledges paternity and pays maintenance cannot later just stop because of doubts. He must bring an application to vary/discharge the order and prove non-paternity. The court will order DNA.
The courts emphasise that in maintenance matters the welfare of the child is paramount. Courts can make interim orders pending proof of paternity. DNA evidence is admissible to prove or disprove paternity.
Do not just stop paying if there is already a court order.
You will be in arrears and risk a warrant of arrest and imprisonment for defaulting. Go to a Maintenance Court immediately and file a notice to dispute paternity application for DNA testing.
Ask the court to make any maintenance order “pending DNA results” and to review it once results are out.
The Act on maintenance empowers the court to order maintenance against “any person who is liable by law to maintain the child”.
Liability is determined by the court. If later disproved, liability ends prospectively, not retrospectively.
Once a maintenance order is in place, you must apply to court to have it set aside. You cannot unilaterally stop paying.
The bottom line is that you may still have to pay interim maintenance. And can only stop after you receive negative DNA results. But you do not just stop.
You got to court and ask it to discharge the maintenance order. I am not aware of any reported Zimbabwean case where a man successfully claimed back all maintenance paid after a negative DNA. Maintenance is the legislature’s intervention to ensure that children’s welfare is taken care of despite the differences that may exist between their parents.
You may not like the mother but that does not or should not affect the welfare of the child.
But men who feel unsure about if they are responsible for the birth of the child, have protection from the same law, in order for them not to look after someone’s child.

Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646