Isabel Palasida Correspondent
When people divorce, usually there is a lot of acrimony between the divorcing parties since there are a lot of issues that are supposed to be worked at upon divorce. There are accusations and counter accusations of who could have caused the hostilities.
Another issue would be who gets what in terms of matrimonial property.
If the parties have children the issue of who takes the children is also central.
For the parent who takes custody, he or she also requires maintenance for the children from the non-custodial parent.
Even in situations where there are no children, the issue of maintenance is also a thorny one since either party may require to be maintained by the other.
Therefore there are a lot of emotions that arise and frequently this is one of the stumbling blocks in terms of a smooth and swift divorce.
In as much as it is given, that minor children of the marriage require maintenance upon divorce of their parents, the High Court, being the upper guardian of minor children, makes sure that their welfare is guaranteed and hence a maintenance order in favour of the custodian parent is granted.
However, there is one issue that has not received as much attention and rave as the others upon divorce and this is what is called spousal maintenance.
Nevertheless, the few cases that this issue featured in e.g. Locardia Karimatsenga v Morgan Tsvangirai wherein she was seeking a US$15 000 spousal maintenance per month to “sustain the lifestyle she had become accustomed to after their marriage” took a prominent role in the media.
Spousal maintenance upon divorce (post-divorce spousal maintenance) is described as a payment by one spouse to their former spouse in order to assist them to support themselves.
There have been various debates as to whether upon divorce a spouse has a duty to continue maintaining the other considering that the divorce is the end of the road for the parties per se.
Our laws provides for spousal maintenance and Section 7(1)(b) of the Matrimonial Causes Act (Chapter 5:13) provides as follows; that
“The payment of maintenance, whether by way of a lump sum or by way of periodic payments, in favour of one or other of the spouses …”
Section 8 of the same Act goes further and states that an order for maintenance in respect of a spouse ceases when he or she dies or remarries.
Upon divorce there is need to minimise hardships occasioned to either of the spouses and Section 26(c) of our Constitution brings that to the fore and it reads 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 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.”
In essence, what that means is that spouses should be placed in a position they would have been had the normal relationship continued.
One of the formulas which are used by the court to come up with a figure in calculating this is the aspect of the life style the parties were living as alluded to in the Karimatsenga matter. In fact if one’s claim is based on this, then the party who is claiming should clearly show what he or she intends to use the money for and this amount is what they used to enjoy as a couple before the breakdown of the marriage.
Maintenance is not meant to be an entitlement simply because he or she was married at some stage.
In most instances that is the folly since one would be taking a marriage as a meal ticket for the rest of their life.
Frequently and because of human nature, parties to this ordinarily want to spite the other and hence the demand for maintenance even in situations which do not require it.
Under common law, spouses are under a reciprocal duty to support each other and naturally it is not always the case that a husband has the sole mandate and duty to support a wife upon divorce but if the wife has the means to support a husband, then courts are enjoined to award as such.
If either spouse states that they require assistance from the former spouse since they are unable to maintain self, then the court has no option but to award the maintenance.
There should be no discrimination as the above stated Clause in our constitution buttresses.
However, with the coming in of a working wife/woman and women’s liberation, that seems to be influencing change more especially where a woman demands to be looked after upon divorce.
Justice Manyarara in one of his judgments spelt this out when he said that courts nowadays are no longer prepared to award maintenance to young women who were, prior to their marriage, working and are able to continue working after the divorce.
The said judge went further and stated that middle aged women who, during the subsistence of the marriage, dedicated their lives to taking care of the home and children are entitled to what he called rehabilitated maintenance for a period sufficient to enable them to be trained or retrained for a job or profession.
However, for those elderly women who would have sacrificed their lives to taking care of a home and are now too old to earn their own living and are unlikely to remarry, they are supposed to receive permanent maintenance.
The same can also be said about the men because of the equal rights discourse.
As Justice Mwayera in another matter said; “Maintenance after divorce is only granted in exceptional circumstances and the need must be clearly spelt out”.
It is not meant to fix or gain an advantage over the other spouse.
It is therefore clear from the above that there are some things that are taken for granted.
Even though there is a law that determines who gets maintenance after divorce, it is up to the courts to decide who gets it.
Isabel Palasida works for Zimbabwe Women Lawyers Association. Those in need of legal advice please get in touch with us at Zimbabwe Women lawyers Association – 17Fife Avenue, Harare – Tel: (04)708481 /706676 – Hotline: 0782 900 900 /0776736873 – Toll free: 08080131