The law on maintenance: What every parent has to know

FUNGAI CHIMWAMUROMBE
AND TAKUNDA GOMBIRO

“Or what man is there among you who, if his son asks for bread, will give him a stone? Or if he asks for a fish, will he give him a serpent?” if you then being evil, know how to give good gifts to your children, how much more will your father in heaven give good things to those who ask him –Jesus Christ in Matthew 7 vs 9-10 NKJV.

The end times ought to be approaching and approaching fast! If during Jesus’ time men had the kindness in their heart to acknowledge and take care of their offspring regardless of the inherent evil they possessed, then today’s men have become evil at a whole new level.

Whilst maintenance is an obligation of both parents as will be shown in the article, the male half of procreation has been the guilty party in abandoning its blood.

However, maintenance does not relate to a Parent and Child relationship alone, although it is the predominant relationship that is affected.

What is maintenance?

Maintenance is the legal obligation that a responsible person is supposed to pay toward the welfare and upkeep of their dependant. Maintenance is governed by the Maintenance Act [Chapter 5:09].

Maintenance in the legal sense is measured in monetary terms. It is therefore the reasonable amount of money sufficient for the upkeep of a dependant.

This amount of money is at all times determined by the circumstances of each case. No single figure can be pegged as the sum to be paid for maintenance as will be shown later in the article. Other aspects of the welfare of the Dependant are governed by the Legal concepts of Custody, Guardianship and Access.

The Act defines a dependant in section 2 as “any person whom a responsible person is legally liable to maintain.

A responsible person is simply described as a person who is legally liable to maintain another.

To narrow down the difficulties in identifying a dependant the following circumstances can give guidance:

a. A parent and their birth child until the child reaches 18 years of age which is the age of majority. (However after attaining 18 years necessary expenses such as University fees can be claimed as maintenance)

b. A Guardian and their adopted Child

c. A Spouse and their Spouse who are lawfully married.

d. A beneficiary of a deceased estate

e. A child and their parent who can no longer maintain themselves (subject to qualification)

f. Any other person whom by the order of court is liable to be maintained by a specified person

For the purpose of this article, much focus will be on the Parent and birth child maintenance.

When should maintenance be paid

Upon birth of a child, both parents have an obligation to maintain their child.

By operation of law and indeed through public policy, it is presumed that a reasonable parent will provide for and take care of their child.

Maintenance is the sum payable in terms of a maintenance award by a Maintenance Court. Maintenance is therefore payable after the Maintenance court, which is primarily the Magistrates Court.

Maintenance is payable for future expenses to be incurred. In the case of Chifamba v Chifamba HH-28-15 Justice Tsanga with Justice Chitakunye concurring made the following remarks:

“A maintenance order cannot be made with retrospective effect. A claim for arrears of maintenance can only be entertained in relation to an order previously made by a court in terms of s 6 of the Maintenance Act [Chapter 5:09].

However, where there has been a previous failure to maintain, such failure may be relevant in assessing how much maintenance should be paid in the future.

The more a claimant’s resources have been depleted by a defendant’s neglect in the past to contribute to maintenance, the greater her need for future maintenance might be.

This means that although a maintenance order cannot be made in respect of the past, it can take the past into account.”

It is clear from the above that a maintenance claim can therefore not be made claiming amounts of money that date back for instance to the period of time between the child’s birth and when the complaint is made.

In essence, a maintenance award is for future expenses contemplated from the date of the award, if the claim is granted.

A claim for arrears is only made in respect of unpaid amounts on an existing maintenance order.

Procedure when making maintenance claim

  1. Maintenance is paid only when there is a complaint that is made to the maintenance officer (Who is a clerk of Court at the Magistrates Court) that a responsible person is failing to provide reasonable maintenance to their dependant.

The complainant has to physically approach the Magistrates court to make a complaint unless if they engage a legal practitioner who makes the complaint on their behalf.

2. The complaint is made to a magistrates court in the area in which either the neglecting party resides or the court in which the complainant resides. That is called the court of Jurisdiction.

3. The complainant then fills a maintenance complaint form, which doubles up as a summons, calling upon the specified responsible person, that is, the father of the child to attend a maintenance inquiry.

4. The complainant must indicate their bank account on the form. This will be explained later in the article.

5. The Maintenance Officer provides a date on the face of the summons that the parties will attend the maintenance inquiry. This date must accommodate at least seven working days’ notice to the person receiving the summons.

6. On the hearing date, the maintenance inquiry is conducted by a Magistrate who poses various questions to the parties. See guidelines to be discussed below.

7. Upon a proper inquiry the Magistrate makes a maintenance award.

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889. Takunda Gombiro is a partner at Chimwamurombe Legal Practice and his email is takunda@zenaslegalpractice.com

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