by Abby Taka Mgugu
Maintenance laws in some countries in southern Africa are negatively affecting women — the traditional custodians of children — in that they in some instances they are inadequate, or in others, do not take into account rising costs.
It is an inherent notion in all societies that spouses should support each other as well as their children. The support mechanism takes different forms, it can be in cash or kind or both.
The notion of support is governed by both customary and general laws. This notion is at times extended beyond the dissolution of marriages and even to after death – where the widow/widower will claim support from the estate of the deceased spouse.
The issue of support (more commonly known as maintenance) is important as it ensures that development policies directed at increasing family income levels result in the improvement of the lives of women and children. The laws of maintenance are directed at ensuring that family income is shared among all members of the family.
Research carried out by Women and Law in Southern Africa Research Trust (1990 -1991) found that in the six countries that participated in the study, it is mostly women who use the law of maintenance because they do not hold high paying jobs, are not employed due to low educational levels, and are the ones that remain with the children. The study also found women do not utilise the laws of maintenance for themselves in most cases but on behalf of their minor children, be they born in or out of wedlock.
While the law of maintenance (under both general and customary law) exists in all southern African countries, there are differences in Botswana, Lesotho, Mozambique, Swaziland Zambia and Zimbabwe.
General law provides that parents are obliged to support their children regardless of their legal status.
In Botswana and Lesotho, this duty only arises in cases of need. In Botswana, any child is entitled to maintenance from his/her father if “without adequate means of support” or has been “deserted”. In Lesotho, for maintenance to be paid for a child, it is necessary to show that the child has been deserted and as a result the child has become destitute or in want of food and other basic necessities of life.
The burden of proving this falls on the woman, and the law in the two countries assumes that it is the duty of the man to support his family. Yet research shows that in reality, women take on the burden of raising their children as well as caring for their husbands.
In the other countries where research was carried out, it was found that the father of a child is brought to court if he, fails to maintain or is guilty of wilful neglect to provide reasonable maintenance, fails or neglects to provide reasonable maintenance.
Botswana and Zambia have special provisions for children born out of wedlock. Such children are only entitled to maintenance from their fathers only if an application is lodged within 12 months of the birth of the child or if the father had previously paid maintenance for the child during the first 12 months of its life. In these two countries. A minimum amount of maintenance per month is legally stipulated and it is so low that the majority of women do not bother to apply. The legal provision for a minimum amount is discriminatory between children born in wedlock and those born out of wedlock
In Botswana. Zambia and Lesotho, another problem with the law of maintenance is the definition of a “child “. Botswana defines a child as someone under 21 years, not earning his or her own living and a maintenance order can only last until the, child is 13 years old.
This can be extended to 21 years if the child is still receiving education. The same situation prevails in Zambia and extension is only allowed up to the age of 16. In Lesotho, a child is defined as someone under the age of 15.
These legal provisions place a burden on the woman who usually has custody of the child because most children are still in school or starting secondary school when the maintenance orders are legally terminated. It is at this stage when the children’s expenses go up and the burden of applying for the extension of the maintenance order lies with the woman.
Zimbabwe, Swaziland and Mozambique have somewhat fairer provisions. In Zimbabwe. a maintenance order terminates when the person attains the age of 18 or becomes self-supporting. The order can be extended if the child is still attending an institution of learning or is disabled. In Swaziland, a parent has the obligation to maintain his/her child until the age of 21 years or becomes self-supporting. If the child is in an institution of learning the order lasts until the child reaches the age of 25. Mozambique on the other hand does not have an age limit as to the duration of a maintenance order.
This analysis shows that even though maintenance laws exist in the region, they are different and this means that their application will also differ. The administrative procedures will affect women differently and also place a burden on the woman especially when it comes to litigation.
The procedure of claiming maintenance is tedious and cumbersome. and it takes a strong woman to go through with the litigation process In most cases, the women who apply for maintenance are unemployed or hold very low paying jobs and therefore will not have the financial resources to utilise in claiming maintenance. Research has found that professional women do not utilise the law either because they can afford to maintain their children. However, women should be encouraged to utilise the law despite their economic status because the father has a responsibility to maintain his child.
In the end the orders granted are so small that it is not worth the problems. Society still places a stigma on the woman who is using her legal rights for herself or her children. False accusations are levelled against these women in that they misuse the money received as maintenance for their own use. Research has also refuted this allegation based on the argument that the meagre orders women receive are not sufficient to meet the basic needs of the child. It is through this that some women have taken to increase these meagre amounts by engaging in border jumping.
Women too are obliged to contribute to the maintenance of their children however this does not necessarily have to be in cash. The role of being a custodian of the minor children will be taken into account when maintenance orders are considered. (SARDC)
