Thursday, 17 November 2016


THE High Court says the law regarding spousal maintenance has evolved drastically in tandem with the “liberation” of women and therefore women should disabuse themselves of the notion that a marriage certificate guarantees them of livelihood even after the marriage has been dissolved.

High Court judge, Justice Alphas Chitakunye, recently re-stated this position as he finalised a protracted divorce of a Kadoma businessman, Joel Madzivanyika and his wife, Tapiwa.
Chitakunye highlighted that it was important for lawyers to note the changes to the law regarding post marital maintenance and advise their clients properly.
The businessman filed for divorce in 2005, but the case was not finalised, as the couple appeared to have reconciled and lived in “cold peace” for another seven years until the wife resuscitated the divorce proceedings in 2012. 
In her original pleas, Tapiwa, who was then a self-actor had not asked for maintenance for herself, but only for the three minor children and a portion of the marital estate.
However, when she resuscitated the divorce proceedings with the assistance of a lawyer, she was now demanding US$300 per month for herself for life, in addition to the maintenance of the one child who is still a minor.
“The manner in which this ‘claim’ for maintenance was smuggled in leaves a lot to be desired especially that defendant was now legally represented and ideally a proper counter claim laying the basis for the claim ought to have been made,” noted Justice Chitakunye who is reputed as an expert in family law, before taking time to lecture the parties on the changes that have taken place since spousal maintenance was introduced in 1985.
“With the advent of women’s emancipation, the wife is no longer assured of post-divorce maintenance just on the asking. While in the past a wife could be assured of post-divorce maintenance for life, the modern trend has been to require the wife to justify the need for post-divorce maintenance, its duration and quantum thereof,” Justice Chitakunye pointed out. 
“It is no longer just for the asking. A spouse seeking post-divorce maintenance must justify the need for such maintenance. The party must also justify the duration of the post divorce maintenance. This is in addition to the obvious need to justify the quantum of the maintenance.”
He noted that this position had been so for a very long time, and buttressed this by citing a judgment from a 1992 case (Chiomba vs Chiomba) in which the judge ruled thus: 
“When a woman applies for maintenance at the time of divorce in terms of s 7(1) (b) of the Matrimonial Causes Act 1985 the criteria to be applied are set out in Section 7(3)[now s 7(4)] of the Act. It used to be thought that where an ‘innocent’ woman divorced her husband on the ground of his misconduct she was entitled to maintenance until her death or re-marriage, whether or not she was able to work and support herself. This is not the position today. The changed attitude of the court has been brought about by the emergence of the working wife and ‘woman’s liberation’”.
Justice Chitakunye then pointed out that generally in deciding on spousal maintenance for women who are able to work, the general guidelines, enunciated by Professor Hahlo concerning South African law are applicable in Zimbabwe as they are in accordance with the intention underlying the provisions relating to maintenance in the Matrimonial Causes Act.
These Hlalo general rules are as follows:*Marriage can no longer be seen as providing a woman a bread ticket for life. A marriage certificate is not a guarantee of maintenance after the marriage has been dissolved.
*Young women who worked before marriage and are able to work and support themselves after divorce will not be awarded maintenance if they have no young children. If a young woman has given up work she will be awarded short-term maintenance to tide her over until she finds a new job.
*Middle-aged women who have devoted themselves for years to the management of the household and care of the children should be given “rehabilitative” maintenance for a period long enough to enable them to be trained or retrained for a job or a profession.
*Elderly women who have been married for a long time and are too old to now go and earn a living and are unlikely to re-marry will require permanent maintenance.
“In the present case, the court ruled that the wife was not entitled to be maintained because there was an even balance between the parties regarding their responsibilities, prospects, youth and income after the payment of maintenance,” Justice Chitakunye pointed out. Financial gazette


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