Legal Issues: Maintenance of Children

WE have all heard about maintenance orders made by courts with the intention of forcing an errant parent/guardian to pay a set amount of money every month for the upkeep of their children.

This is an issue which is often misunderstood and misinterpreted by both sides of the divide and in this article, in as simple language as possible, I will explain the basic principals governing this legal minefield.

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It is a natural expectation that children must be looked after by their natural parents or guardians. This means a parent’s responsibilities towards their children are to feed, clothes, educate, provide shelter and medical care to them. However, due to several factors, most of them inexcusable, one or both parents end up neglecting or refusing to take up this responsibility. This normally leaves one of the parents and sometimes relatives, with the burden of shouldering the duties of the irresponsible parent.

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The cost of the children’s upkeep must be clearly stated. This means in the application, one must itemise each and every expense per month, e.g. rent, food, clothes, medical care, and school fees e.t.c. The overriding principle is that a parent is expected to maintain his or her children according to his means. In other words, the court cannot order a parent to pay as maintenance, a sum which exceeds his earnings. An applicant has to ensure that the amount claimed is within respondent’s means.

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In cases where a parent has abandoned his/her responsibilities towards his children, the custodian parent or guardian has every right to approach the court with an application for maintenance. The applicant needs to show the court that the respondent is the person responsible for the upkeep of the children by virtue of being the parent. Applicant will also need to show that respondent has neglected or refused to carry out his duties as a parent.\r\n

In most cases, issues get mixed up. It is important for parties to know that maintenance claims should not be used to settle scores. Often, because the relationship between the parents has broken down by the time the application for maintenance is made, parties try to bring up their differences as part of the application. This should not be. Courts in matters concerning children are guided by the best interests of the children principle.

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There are cases where a parent raises the paternity of the child as grounds for not paying maintenance. The law prescribes that the court will still make an order that he pays maintenance until such time he has paid for paternity tests and results show that he can’t possibly be the father. Simply put, if a father claims as a defence that the child is not his, the onus is on him to prove, by undergoing paternity tests.

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In the meantime, the court will order that maintenance be paid, pending paternity results. In the event that paternity tests show that the respondent can’t possibly be the father and he had been paying maintenance, the general rule is that he does not get a refund.

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The courts will look at respondent’s other responsibilities e.g. if he has other children to look after. The law does not allow respondent to deprive his children of support in order to help other dependants of his e.g. his mother/parent. Children’s needs take precedence over other relatives.

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Parties to a maintenance dispute are encouraged to bring proof of income and expenses to court. Where these documents are unavailable and no meaningful explanation is given by the respondent the court is justified in drawing the inference that the truth has not been told.

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It has been known that parties to a maintenance application have sometimes resorted to dirty tactics like:

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 – falsifying payslips to mislead courts as to their actual income

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– misleading courts as to whether they are employed or not

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– persuading the applicant party to withdraw application on promises of renewing the love relationship

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– Using the maintenance money on things other than the upkeep of the children.

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Whatever the tricks, the children suffer as parents fight a bitter personal war in the minefield called the maintenance lawsuit.

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The Zimbabwe Mail is pleased to introduce Runyararo Munhuweyi (LLBS)’s weekly column which will provide vital commentaries and analysis of legal issues that affect our daily lives. Runyararo can be contacted at: runyararo.munhuweyi@gmail.com\r\n

 

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