child &
Family Law.

Ante-nuptial Agreements / Contracts

Ante-nuptial agreements have become common in the modern marriage system. This type of marriage maybe described as unique or “one of its own kind”. The importance of an ante-nuptial agreement is that it separates the parties from their estates or assets. This implies that each party is entitled to their property and bears the risk or profit individually. In addition, an ante-nuptial agreement helps parties to know what they are entitled to upon dissolution of the marriage. In the case of Roche v Middleton & Another HH-198-16 it was held that;

‘At common law, under this form of ante-nuptial contract, the general capacity and property rights of the parties remain unaffected by the marriage. They retain their separate estates. They are not liable for each other’s debts, with the exception of debts contracted for household necessities.”

Requirements for a valid Ante-Nuptial contract

In Zimbabwe an ante-nuptial agreement is recognized where it meets certain requirements. These requirements include the following:

• a. The agreement should be made in terms of the Married Persons Property Act (Chapter 5:12) and should follow the specified format;
• b. Marriage has to be after 1 st of January 1929.The place of matrimonial domicile should be Zimbabwe;
• c. The agreement should be in writing;
• d. Must be signed by both parties;
• e. Agreement is only valid when signed before the solemnization of the relevant marriage;
• f. The contract should be done in the presence of a Magistrate and one other witness;
• g. The agreement should be registered with the Registrar of Deeds. The agreement becomes valid upon registration.

DIVORCE

Divorce proceedings can be contested or uncontested. A contested divorce is where a married couple is unable to agree either on the divorce itself or upon the terms applicable to their divorce eg custody of minor children or property sharing. As a result contested divorces involve going through all the various stages of litigation including giving evidence in court, to obtain a divorce decree. Contested divorces tend to be acrimonious and expensive.

In an uncontested divorce, the married couple agrees on all issues to do with the divorce. There is no dispute over any issue pertaining to the marriage eg custody, maintenance, access or property sharing. Uncontested divorces are quicker, convenient and cost effective as the parties are not required to attend court. The divorce is granted on the basis of papers filed by the divorcing couple.

MAINTENANCE

Maintenance is financial support provided for a person’s living expenses. Maintenance in Zimbabwe is regulated by the Maintenance Act (Chapter 5:09). In the absence of agreement between the parties, the court will determine the amount of maintenance payable. In doing so, the court takes into account the factors set out in section 6(4) of the Maintenance Act. Every Magistrates court is a maintenance court within its area of jurisdiction. Maintenance does not have a retrospective effect but applies to future expenses.

STEPS FOR CLAIMING MAINTENANCE IN ZIMBABWE

Claiming of maintenance is done in the Magistrates Court. A complaint must be made on oath to a maintenance officer of a maintenance court with jurisdiction over the defendant. The complainant must allege that the defendant is failing or neglecting to provide reasonable maintenance for a dependent who they are legally obliged to maintain. The maintenance officer then issues a summons calling upon the defendant to appear before a maintenance court to show cause why an order for the maintenance of the dependent should not be made against them. When the parties attend court an inquiry in terms of section 5 of the Maintenance Act is then made into the complaint.

CUSTODY

Custody refers to the legal right to keep and look after a child. Custody. Issues to do with custody usually become relevant upon divorce. Custody in Zimbabwe is regulated through the Guardianship and Minors Act (Chapter 5:08). In Zimbabwe, the High Court is the upper guardian of all minor children. The best interests of the child are a paramount consideration in all matters concerning the access, guardianship or custody of all minor children.

ACCESS

Access is the right to visit or be visited by the minor child, including staying with the child temporarily, like during holidays or weekends. Non-custodian parents enjoy this right in order to foster a bond between them and the child. Access is also granted as a means of upholding the principle of the best interests of a child. It is in the best interests of a child to be able to spend time with both parents. A non-custodian parent can only be denied access where such denial is in the best interests of the child.

GUARDIANSHIP

Guardianship is a legal right that allows either parent to manage a minor child’s affairs. A parent or other person who acts as guardian of a child must administer and safeguard the child’s property and property interests, assist or represent the child in administrative, contractual and other legal matters as well as give or refuse any consent required by law in respect of the child including consent to the child’s adoption, consent to the child’s departure from the country and consent to the child’s application for a passport.

An inquiry into guardianship is an inquiry into the suitability of a parent to discharge the legal obligations imposed by law on the guardianship of a minor child. The power to divest a parent of guardianship is a power which is exercisable by the courts very sparingly. The granting of guardianship to a third party is done in exceptional circumstances more so where one or both parents of the child are still alive.

CHILD ABDUCTION

The Convention on the Civil Aspects of International Child Abduction was given the force of law in Zimbabwe by the Child Abduction Act (Chapter 5:05). Article 3 of the Convention provides that the removal of a child by one parent is wrongful where the child has been removed from the place where it was habitually resident in breach of rights of custody which the other parent has in terms of the laws of that country and those rights were actually being exercised. Article 12 provides that where there has been such wrongful removal and proceedings for the child’s return have been commenced less than one year from the date of removal, the court “shall order the return of the child forthwith.”