The ManicaPost
Trust Maanda
THE Maintenance Act is a law that provides for maintenance of dependants by responsible persons.
The Matrimonial Causes Act provides for maintenance of spouses and children on divorce.
The two Acts provide for how eligible persons can obtain maintenance.
The Deceased Persons Family Maintenance Act makes provision for maintenance of persons from the estate of a deceased person.
The Act defines dependants who can benefit from the estate of the deceased and sets out the procedure of applying for the maintenance.
This article focuses on maintenance claims against a living person.
Every magistrate court is a maintenance court.
Maintenance proceedings are not strictly civil proceedings, but are an enquiry.
The application for maintenance is easy to make.
Forms of the application are obtained from the Clerk of Court.
A dependant is a person in relation to a responsible person whom that responsible person is legally liable to maintain.
A responsible person is the person legally liable to maintain a dependant.
To obtain a maintenance order, the dependant, who is the applicant, should prove that the person from whom maintenance is sought, the respondent, is legally liable to maintain the dependant, he is able to pay and he fails or neglects to provide maintenance.
Applicant should prove paternity if the respondent disputes it, in the case of a child. Where paternity is disputed, the court may order maintenance pending paternity tests.
If the respondent’s paternity is excluded, the order will be discharged.
If the applicant claims maintenance as a spouse of the respondent, she should prove the marriage.
To prove that the respondent is able, but neglects, to contribute towards the maintenance, applicant must produce proof of respondent’s earnings.
The court will award maintenance after assessing the needs of the dependant and the financial ability of the responsible person.
Parents have a mutual duty to support their children.
Maintenance is not for personal enrichment.
Neither is it meant to settle scores by making unreasonable demands. The claim is for reasonable maintenance.
The responsible person must not quit his job or incur more liabilities in order to evade maintenance.
The maintenance awarded can be deducted from respondent’s salary by his employer and paid directly to the applicant.
The order can be varied upwards whenever circumstances change, such as cost of living, inflation, and new needs such as school and medical fees.
It is a criminal offence, liable to imprisonment, not to comply with an order of maintenance.
A respondent who becomes unable to pay maintenance in terms of the order, rather than defaulting payment, should apply for downwards variation, or if circumstance dictate, a termination of the order.
A maintenance order issued in terms of the Maintenance Act and Matrimonial Causes Act is terminated when, among other things, the child dies, is adopted by another person; or the child marries; or the child attains majority age, if the order of maintenance is not extended to be effective beyond the age of majority.
With respect to the wife, the order will cease if, among other things, she dies or remarries; or an order of divorce is made which includes an order for the maintenance of the wife.
In terms of the Matrimonial Causes Act, which relates to divorce, the divorce court may order that the spouse be maintained after divorce until she dies, or remarries, or if the order is discharged for some reason, whichever occurs first.
Post-divorce spousal maintenance is not just for the asking. A spouse must justify the need, the quantum and the duration of such maintenance.
A spouse that needs post-divorce maintenance must show that they are unable to sustain themselves, hence the need for the other spouse’s support.
Marriage is not a meal ticket for life.
A marriage certificate does not guarantee maintenance after divorce.
A young woman who worked before marriage and is able to work and support herself after divorce will not be awarded personal maintenance.
If she gave up work for marriage, she will be awarded maintenance temporarily until she finds a new job.
If she remarries, the duty to maintain her will be assumed by the new husband.
A woman who devoted herself to household duties will be given “rehabilitative” maintenance for a period long enough for her to get training or qualification for a job.
Elderly women who have been married for a long time and are too old to work and unlikely to remarry will get permanent maintenance.
If making children or marriage is pleasure, then the law of maintenance ensures that pleasure corresponds with responsibility.
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
