Online Reporter
Pro Deo, [email protected]
THE Maintenance Act [Chapter 5:09] was never enacted to punish men. Its purpose is straightforward and humane: to provide a legal framework for inquiries, court orders and enforcement mechanisms that ensure dependants are properly maintained.
In this instalment, we focus specifically on child maintenance rather than spousal maintenance. The law is unambiguous. The responsibility to maintain a child rests on both parents, regardless of gender.
Who can claim?
The custodian of a child may lodge a complaint on oath stating that the person legally responsible for maintaining the child is failing to do so. Importantly, the custodian does not have to be a parent.
A grandmother or grandfather who has custody of a minor child is fully entitled under the law to seek maintenance on that child’s behalf. The guiding principle is always the welfare of the child, not the identity of the person providing day-to-day care.
The same principle applies in reverse. Where a father has custody of a child, there is no legal obstacle preventing him from claiming maintenance from the mother. It is therefore incorrect to portray maintenance orders as a mechanism designed to punish men.
What we often observe, however, is that men who are raising children on their own rarely pursue maintenance claims against the mothers. In many cases, this appears to stem from what is commonly described as pride, or perhaps an inflated sense of self-reliance. Whatever the reason, the law makes no distinction between mothers and fathers.
What matters is the well-being of the child.
The child’s interests must always come before the pride or preferences of either parent.
The importance of the inquiry
A recent news article from Matabeleland South has generated considerable public discussion. Pro Deo does not have all the facts surrounding the matter. However, if it is true that a presiding magistrate ordered a father to pay US$200 per month without first conducting an inquiry, that would amount to a serious error in law.
Section 5(2) of the Act provides:
“An inquiry referred to in subsection (1) shall be held in the presence of the responsible person or in his absence upon proof of service upon him of the summons requiring him to appear.”
This inquiry is not a mere procedural formality. It is a crucial part of the maintenance process.
Its purpose is to establish the means and financial circumstances of the responsible person. Before making a maintenance order, the court must determine what the parent can reasonably afford to contribute. A maintenance award should reflect the realities of that person’s income and circumstances.
Where a father is claiming maintenance from a mother, the court will also take into account his own contribution towards the child’s upkeep. Maintenance is based on shared responsibility.
The law recognises that both parents have a duty to provide for their children according to their respective means. It is not intended that one parent shoulders the entire burden while the other contributes nothing.
Do not ignore the summons
One of the recurring challenges in maintenance matters is the tendency of some people to seek legal advice from individuals who are neither trained nor qualified to provide it.
A law degree, like any professional qualification, is not obtained casually. Yet many people place their trust in so-called
“pseudo-lawyers” who confidently dispense advice they are not competent to give.
One of the most common and dangerous pieces of advice is:
“Just ignore the summons.”
That is perhaps the worst course of action available.
If you fail to attend court after being summoned, the court is entitled to proceed in your absence and make a maintenance order against you. Once such an order has been granted, attempting to have it varied or set aside can be a lengthy, expensive and frustrating exercise.
It is far better to attend court from the outset and present your circumstances honestly and fully.
If you receive a summons relating to a maintenance claim, make every effort to appear before the court. Bring proof of your earnings and financial commitments. If you support other children, take along their birth certificates. If you pay rent, utilities or other significant expenses, carry supporting documentation where possible.
Payslips remain the ideal form of proof, but in today’s economic environment many people do not receive formal payslips. In such cases, bank statements, affidavits from employers or any other credible evidence of income may assist the court in reaching a fair and balanced decision.
The court cannot properly assess your circumstances if it has no information before it.
And what about paternity?
There is one question that arises repeatedly in maintenance matters:
“Why wait to be told to look after your own children?”
For most parents, the answer is obvious. However, there are situations where a person genuinely disputes paternity.
Where a father has legitimate doubts about whether he is the biological parent of a child, he may raise that issue before the court and request an interim order while paternity is determined. He may also ask the court to order DNA testing.
Courts have become increasingly receptive to scientific evidence in such matters, recognising that questions of paternity can and should be resolved through objective testing rather than speculation or emotion.
Professionals such as Tinashe Mugabe have become widely known for conducting DNA tests and presenting scientific evidence regarding the probability of paternity. Such evidence assists courts in reaching decisions based on facts rather than assumptions.
Where genuine uncertainty exists, DNA testing can provide clarity and help all parties move forward with certainty.
Conclusion
Child maintenance is not about one parent winning and the other losing.
Neither is it about punishment, revenge or settling old scores between former partners.
At its heart, child maintenance is about ensuring that children do not suffer because adults failed to plan properly, communicate effectively or accept responsibility for their obligations.
The Maintenance Act exists to protect those who are least able to protect themselves: children.
Attend court when summoned. Be truthful about your financial means. Provide the court with the information it needs to make a fair decision.
Above all, remember that supporting your child is not only a legal obligation. It is a moral responsibility that every parent owes to the next generation.
