Married people have a reciprocal duty of support in proportion to their earnings or means. Traditionally it is the husband who is the main breadwinner and has the duty to maintain the wife. As stated above however, both spouses have a duty of support according to their means. The duty of support is a legal consequence of marriage. This is in line with section 26 of the Constitution of Zimbabwe which provides as follows:
The State must take appropriate measures to ensure that—
(c) there is equality of rights and obligations of spouses during marriage and at its dissolution; and
(d) in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses
An unregistered customary law union is also recognised for maintenance purposes in terms of section 6(3) of the Maintenance Act (Chapter 5:09). The maintenance court is enjoined to have regard to the position that at customary law husbands and wives are primarily responsible for each other’s maintenance. This position has been reiterated in previously decided cases.
Maintenance cannot be used as a way of fixing one’s spouse or settling scores. Thus the court in making an order for maintenance must have regard to a number of factors including the standard of living of the parties, their means and responsibilities and whether the spouse claiming maintenance is able to work. With the emergence of a more ‘liberated and working wife’ the courts’ attitude towards the award of maintenance has been changing the world over. It is therefore not uncommon to find maintenance being awarded in favour of the husband.
In cases of post-divorce spousal maintenance it is now rare to find a court ordering payment of maintenance until the spouse dies or remarries. The court is guided by the Matrimonial Causes Act (Chapter 5:13) when dealing with post-divorce maintenance. The following general guidelines enunciated by Professor Hahlo are followed by our courts in determining post-divorce spousal maintenance in terms of the Matrimonial Causes Act:
- 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 out and earn a living and are unlikely to remarry will require permanent maintenance.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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