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Maintenance Statutes in Six Countries in Southern Africa

Published online by Cambridge University Press:  28 July 2009

Alice Armstrong
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Extract

This article will analyse the legislative provisions relating to financial maintenance for women and children in six countries of southern Africa: Botswana, Lesotho, Mozambique, Swaziland, Zambia and Zimbabwe. These are the six countries involved in the Women and Law in Southern Africa research project, a comparative research project and network of researchers in the region. For the first two-year phase of the project, 1990–1991, the project is studying maintenance laws, their application and administration, and the attitudes, customs and practices which influence maintenance law in the six countries. This article is a background paper for that project, which will by analysing legislative provisions give the researchers in the project an idea of some of the various options for law reform.

Type
Articles
Information
Journal of African Law , Volume 34 , Issue 2 , Autumn 1990 , pp. 132 - 144
Copyright
Copyright © School of Oriental and African Studies 1990

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References

1 For a fuller discussion of the maintenance law in Botswana see, Molokomme, Athaliah, “The Mosaic of Botswana Maintenance Law” Botswama Notes and Records Vol. 19, 129.Google Scholar

2 Cap. 28:03.

3 S.3(1) and (2).

4 However, in such a case if the wife was divorced a maintenance order for the children could be given ancillary to the divorce.

5 Cap. 28:03.

6 S.4(1).

7 Proclamation 60 of 1959.

8 Under s. 3A as amended by Deserted Wives and Children (Amendment) Act No. 1 of 1977.

9 S 5(l)(a) and (b).

10 S 5(2).

11 The Maintenance Act 35/1970 s. 5(l)(a).

12 For the subordinate courts: s. 4 of the Summary Jurisdiction (Married Women) Act of 1895 (U.K.) and s. 1(1) of the Married Women (Maintenance) Act, 1920 (U.K.) as amended by s. 1(1) of the Summary Jurisdiction (Separation and Maintenance) Act, 1925 (U.K.); for the High Court: s. 23(1) of the Matrimonial Causes Act, 1950 (U.K.). (Selected U.K. statutes are made applicable to Zambia by the English Law (Extent of Application) Act (cap. 4) and s. 11 of the High Court Act (cap. 50).)

13 S. 26(1) of the Matrimonial Causes Act, 1950.

14 I am indebted to Ana Pessoa Pinto for most of the information on Mozambique in this article, and to Tania Dos Remedios for translating the legislation involved.

15 Civil Code, Title V, Dos Alimentos, Art. 2015.

16 Civil Code, Title V Art. 2020.

17 Which came into effect by virtue of Directive No. 1/82 of the then Tribunal Superior de Recurso (Higher Appellate Court).

18 Cap. 35, as amended.

19 No. 33 of 1985.

20 Customary Law and Primary Courts Amendment Act 21 of 1982 s. 4(b)(4)(a). The Customary Law and Local Courts Act 1990 repeals the Customary Law and Primary Courts Act and it amends the Maintenance Act by adding s. 6(3): “(3) for the purpose of determining whether or not a person who is subject to customary law is legally liable to maintain another person, a maintenance court shall regard—(a) husbands and wives at customary law as primarily responsible for each other's maintenance; (b) the parents of a child as being primarily and jointly responsible for the maintenance of that child until the child attains the age of majority or becomes self-supporting”; s. 30 and Schedule Part III s. 4(3). Note, however, that the 1990 Act is not yet in force.

21 See, Nhalpo, R. T., “No cause for optimism: bigamy and dual marriage in Swaziland”, in Armstrong, and Ncube, (ed.), Women and Law in Southern Africa, Harare, 1987, 125–134.Google Scholar

22 Deserted Wives and Children Protection Act, s. 2.

23 The Maintenance Act 35 of 1970, s. 2.

24 Customary Law and Primary Courts Amendment Act no. 21 of 1982, s. 4(b)(4)(a). The Customary Law and Local Courts Act, 1990 also speaks of “husbands and wives at customary law”, and makes no reference to the legal validity of the marriage.

25 Deserted Wives and Children Proclamation 60 of 1959, s. 2.

26 Lesotho: Deserted Wives and Children Proclamation 60 of 1959, s. 10; Botswana: Deserted Wives and Children Protection Act, cap. 28:03, s. 5.

27 The Maintenance Act s. 15(3).

28 The Maintenance Act s. 10.

29 S. 2.

30 Cap. 28:02.

31 Deserted Wives and Children (Amendment) Act No. 1 of 1977, s. 3.

32 Zambia Research Group, “Pilot Study on the Existing Law Relating to Maintenance: Methodological Considerations” (unpublished project paper) 1990, 34.

33 Civil Code Title V Art. 2013.

34 The Maintenance Act, cap. 35, s. 2.

35 Ibid., s. 11(1).

36 No. 21 of 1982.

37 Determined under s. 3 of the Customary Law and Primary Courts Act 6 of 1981. (See also, Galen, D. P., “Internal conflicts between customary and general law in Zimbabwe: family law as a case study” 1983–1984 Zimbabwe Lean Review, 3–43.Google Scholar)

38 1967–1970 Lesotho Law Reports 328.Google Scholar

39 Customary Law and Primary Courts Amendment Act 21 of 1982, s. 4(b)(4)(b).

40 Affiliation Proceedings Act s. 6.

41 Bastardy Laws Amendment Act, above.

42 It is actually not clear why the customary law could not be invoked on the question of paternity, but this has not happened, perhaps because of colonial judicial interpretation, see Ncube, , Family Law in Zimbabwe, Harare, 1989, 59–64.Google Scholar

43 For an excellent discussion see Ncube, , op. cit., 44–66.Google Scholar

44 S. 3(2).

45 Subordinate Courts Act, cap. 45, s. 20(l)(e).

46 Act No. 11 of 1990.

47 Matrimonial Causes Act, 1950 (U.K.) s. 26(1).

48 Deserted Wives and Children Proclamation 60 of 1959, s. 8(2) and Deserted Wives and Children (Amendment) Act 1 of 1977, s. 3.

49 Deserted Wives and Children Protection Act, cap. 28:03, s. 4(2).

50 S.C.11/1984.

51 Galen, D. P., “Arrear Maintenance and the Jurisdiction of Community Courts in Custody Disputes” 1983-1984 Zimbabwe Law Review, 260–266Google Scholar and Ncube, W., op. cit., 94–96.Google Scholar

52 Act No. 33 of 1985.

53 1955 Southern Rhodesia Law Reports 70.Google Scholar

54 Ncube, , op. cit., 94–5.Google Scholar

55 The Maintenance Act s. 12.

56 Maintenance Amendment Act, 1987, s. 3 amending s. 6 of the principal Act.

57 The Maintenance Act s. 24.

58 Subsidiary Legislation to the Subordinate Courts Act, Order XXXVII, s. 11.

59 Directo 417/71, s. 103.