Street Law School

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MAINTENANCE OF MINOR CHILDREN IN ZIMBABWE

 Maintenance is the legal obligation that a responsible person is supposed to pay toward the welfare and upkeep of their dependent. Maintenance is governed by the Maintenance Act [Chapter 5:09].
 Section 4(1) of the Maintenance Act states that a complaint for maintenance or summons for maintenance may be issued where “a responsible person fails or neglects to provide reasonable maintenance for any of his/her dependents”. It should be noted that in terms of the laws of Zimbabwe both parents are obligated to contribute towards the maintenance of the minor child.
 The law on maintenance is well settled. The Respondent who is the responsible person must be legally liable and be capable of paying but be failing to pay maintenance.
 To narrow down the difficulties in identifying a dependent and a responsible person the following circumstances can give guidance:
i. A Parent and their birth child until the minor child reaches 18 years of age which is the age of majority. (However after attaining 18 years necessary expenses such as University fees can be claimed as maintenance)
ii. A Guardian and their adopted Child
iii. A Spouse and their Spouse who are lawfully married (see our article on spousal maintenance).
iv. A beneficiary of a deceased estate, etc.
v. A child and their parent who can no longer maintain themselves (subject to qualification provided under statute such as those suffering from mental illness or disability)
vi. Any other person whom by the order of court is liable to be maintained by a specified person
 The court has stated that minor children are entitled to at least a sixth of the responsible person’s salary. (See Gwachiwa v Gwachiwa SC134/86 ). The Gwachiwa formula is used by the court used as a guideline of starting point for quantification but same is subject to such adjustment depending on the needs of the minor child and the earning capacity and expenses of the responsible person.
 Once Summons have been issued it is up to the responsible person to appear in court to show cause why an order for the maintenance of the dependent should not be made against him/her. If the responsible person proves that they have been discharging their responsibility towards the upkeep of the minor then an order for maintenance may not be granted against them. This is subject to the discretion of the court.
 When assessing the quantum of maintenance to be awarded to a minor child, the maintenance court takes into account the earnings of both parents were added and respective shares allocated to them and the children. Maintenance is payable for future expenses to be incurred.
 Section 4 of the Maintenance Orders (Facilities for enforcement) Act allows for an application to be made seeking a maintenance order against any person who is outside Zimbabwe but in a reciprocating country. A reciprocating country is defined as any country within the territory of the common wealth including England and Ireland.

By Rose F R Mhlanga

SPOUSAL MAINTENANCE

1. The law applicable in Zimbabwe when dealing with matters of spousal maintenance is the section 7(1) (b) Matrimonial Causes Act [Chapter 5:07].
2. In considering the issue of maintenance, we found the following passage, taken from the head note in the case of Chiomba v Chiomba 1992 (2) ZLR 197 (S) to be quite instructive as well as apposite when dealing with spousal maintenance;

“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.”
Maintenance of a minor
3. Only people entitled to permanent an elderly spouse
• who was a house wife or husband,
• with no prospect of remarrying,
• no history of employment and no prospects of learning a new skill
4. The court may grant spousal maintenance for a limited period of time frame to an able bodied spouse who has not been working during the marriage so as to assist them to get their life back on track. This is subject the courts discretion.

By Rose F R Mhlanga

Can I hire a lawyer to assist me when reporting a matter to the police?

Legal matters are generally grouped into two, criminal or civil. Criminal law matters involve the State acting against another person or people for contravening a criminal law. Such matters are cited as the State v X with the State bearing the power to bring the matter to court. When a criminal offence is alleged to have been committed, the State brings the matter to court and the victim (where such a person exists) becomes the Complainant. For example, in r**e, robbery, theft matters, the person who would have been r**ed, robbed or stolen from appears as the complainant. The lawyer representing the State and the victim is the Public Prosecutor more commonly known as the “PP”.

In a criminal trial, the Prosecutor is not particularly the victim’s lawyer but the State’s lawyer. This results in a lot of confusion and lack of direct access to the prosecutor and the police. Due to the nature of criminal matters and the confusion they bring to the complainant, some people and companies opt to engage private lawyers to follow the proceedings, update and advise the victim as well as assist the State with conducting the trial. This is called a watching brief.

A watching brief includes a mandate to assist with making a police report, assisting the investigating officer with identifying an appropriate charge, preparing a competent charge sheet and state outline, identifying and interviewing suitable witnesses, assisting with evidence gathering as well as monitoring and preventing any collusion between the accused person and/or their proxy and the police officers. The lawyer maintaining a watching brief also has a duty of observing and ensuring that the prosecutor conducts the criminal trial in a professional and astute manner to secure the conviction of the accused person. The lawyer maintaining a watching brief does not take part in the actual trial. They do not have control over the Prosecutor or the curt but can only assist the Prosecutor.

A watching brief assists the complainant with maintaining accountability by the police and the prosecutors in a criminal matter. A watching brief on behalf of a company assists with accountability to the board of directors.

by Kudzai Pamela Kaseke

WHAT TO LOOK FOR WHEN PURCHASING A PROPERTY IN ZIMBABWE ( PART II)

♤VERIFICATION OF INFORMATION PROVIDED BY OWNER WITH THE MUNICIPALITY
Some properties are yet to have title deeds issued. It is prudent for the purchaser to ascertain from the seller why the property does not have a title deed. The most common reason for urban properties not having title deeds is that the relevant municipality is yet to have the title deeds issued for one reason or another. In such a case the purchaser should request to see the agreement of sale between the seller and the municipality to assess the authenticity of the seller’s personal rights to the property. The purchaser should also approach the municipality or local authority to confirm that there is indeed an agreement of sale between the seller and the municipality. Further, the purchaser should ask if the seller is allowed to sell the property. The agreement of sale may have express conditions that may not allow for the property to be sold. It is important to have this information before finalising a sale as the purchaser may buy a property that the seller is unable to deliver as it is owned by a third party. If the municipality confirms that the property can be sold ask for the requirements for cession so as to ensure that the agreement of sale will comply with same. As previously advised it is important to have a lawyer guide you through this process.

♤VERIFICATION OF WHETHER THE PROPERTY BEING PURCHASED IS NOT ENCUMBERED
It is important the purchaser conducts a search with the Deeds office to ensure that the property does not have any encumbrances such as mortgage bonds or caveats against it. Purchasing a property with a legal encumbrance can be very prejudicial to the purchaser as title to the property cannot be transferred to them and there is a risk of the property being repossessed or sold by the holder of the mortgage bond or caveat. It is essential to get legal advise on whether to proceed with such a sale.

By Rose F R Mhlanga

WHAT TO LOOK FOR BEFORE PURCHASING A PROPERTY IN ZIMBABWE (Part I)

Purchasing an immovable property is a very important and fundamental decision that should not be rushed into. It is very important that a due diligence search be done on the property and on the seller before one undertakes to pay the purchase price. It is advisable that this due diligence search be conducted by lawyers as some of the issues that need to be identified may not be easily accessible or recognizable to a lay person.



1. VERIFICATION OF IDENTITY OF REGISTERED OWNER OF THE PROPERTY

· It is importance that a potential purchaser have sight of proof of ownership by the owner of the property be it by way of title deeds or cession documents from the municipality.

· The purchaser has to meet the seller in person if possible as well as see the seller’s original Identity Document.

· If property is being sold by sales agent ensure that the agent is registered with the Council of Real Estate Agents. Also where possible ascertain if they have the mandate from the purchaser to sell the property. The reason behind that is for the purchaser to ascertain if the seller is the actual owner of the property and that the agent has authority to sell the property.



2. VERIFICATION OF INFORMATION PROVIDED BY OWNER WITH THE DEEDS REGISTRY IF THE PROPERTY HAS TITLE DEEDS

· Once the purchaser has had sight of the title deed and the purchaser’s I.D a deeds search has to be conducted at the Deeds Registry office.

· The Deed’s Registry is the depository of all title deeds in Zimbabwe.

· The purchaser can therefore confirm that the information given by the sell or the seller’s agent is correct and matches the information with the Deeds Registry.


By Rose Mhlanga

Welcome to Street Law School. A Zimbabwean legal awareness blog.We hope you leave our page enlightened.

DISCLAIMER: Any views, opinions and guidance set out in this page are provided for information purposes only, and do not purport to be legal and/or professional advice or a definitive interpretation of any law. Anyone contemplating action in respect of matters set out in this page should obtain advice from a suitably qualified and registered legal practitioner based on their unique requirements.

ANTE-NUPTIAL CONTRACTS

The general rule in Zimbabwe is that the matrimonial property regime is out of community of property.

Out of community of property

What does it mean to be married out of community of property?

It means that:

1. One retains ownership of the property they brought into the marriage.

2. One also retains ownership of what they acquired during the marriage and is registered in their name. They can dispose of it or deal with it as they deem fit without being required to consult the other spouse.

3. Any contribution made by a spouse who is not the registered owner of the property does not give them any claim to the property neither does the contribution give them a claim to the property in the absence of a court order. This sometimes leads to the financial prejudice of the spouse who is not registered as the owner of the property.

4. Where an asset was acquired during the subsistence of the marriage and was registered in the husband’s name, upon the dissolution of the marriage, the wife can only claim part ownership of the asset if she can prove a direct or indirect contribution towards its acquisition. Ownership due to direct or indirect contribution by the spouse whose name is not on the title can only be recognized should the other party whose name is on the title deed agree to transfer a portion of their interest in the property in order to reflect co-ownership or by virtue of a court order.

5. Where a spouse who is not registered as an owner made contributions towards the acquisition of an asset, their interest is not protected. Such a spouse cannot claim, from a third party, for reimbursement of their contributions should the asset be disposed of by virtue of a court order.

As with any general rule, there are exceptions. Parties can enter into an ante-nuptial contract in order to regulate the sharing of the matrimonial assets upon divorce or death. This means that parties can agree to be married in community of property instead of out of community of property.

What is an ante nuptial contract?
Ante nuptial contracts also known as Pre- nuptial Contracts in other countries or more popularly as “pre-nups” are principally governed by the Ante nuptial Contracts Act [Chapter 5:01]. Although the Act itself does not define ante nuptial contracts, section 2 of the Married Persons Property Act [Chapter 5:12] refers to this type of contract as an instrument in writing, signed by each of the spouses prior to the solemnization of their marriage and in the presence of two persons, one of whom shall be a magistrate, who shall subscribe thereto as witnesses, have expressed their wish to be exempt from this Act (Married Persons Property Act [Chapter 5:12]) Act.

Advantages of Ante nuptial contracts
Ante nuptial agreements are advantageous to the spouses as they customise the matrimonial property regime in a way that protects the spouses during the subsistence of the marriage and in the event that the matrimonial relationship is dissolved by divorce or even death.

Parties may agree to the following:
1. That the matrimonial property shall be in community of property. This circumvents cultural practices which require a wife acquiring property to register it in her husband’s name as a sign of respect and submission,

2. That matrimonial property shall be in community of property and state the shares each spouse shall be entitled to. This can be done taking into consideration unions whereby the spouses agree that the wife shall be a housewife thus making indirect contributions to the development of the marriage.

3. None of the matrimonial property may be disposed of in the absence of written consent by the other spouse despite the other spouse not being the registered owner. This prevents the unregistered spouse from being financially prejudiced by the disposal of an asset whose purchase they would have contributed towards.

4. Children from a prior marriage may inherit certain assets.

5. Punitive action towards infidelity by either spouse such as a payout to the wronged party thus incentivizing fidelity.

6. Reward a wife for bearing children in cultures or religions that celebrate bearing several children in a marriage.

In terms of section 3 of the Ante nuptial Contracts Act [Chapter 5:01], ante nuptial contracts are only valid if registered and copies filed with the Deeds Registry. It is thus essential to consult a Notary public who will draft the Ante nuptial contract on your behalf and file same with the Deeds Registry prior to the solemnization of the marriage.

By Kudzai Pamela Kaseke

Family Trust

The creation of a family trust is a way in which you can protect your assets for the benefit of intended beneficiaries. It allows you, as the founder, to create a vehicle that is administered by Trustees and functions the way in which you intend it to both during your lifetime and after you die.

What is a Trust?
A “Trust” is created by way of a "notarial deed” . The Trust
i. Creates a legal institution represented by its Trustees in their official capacity
ii. Can sue and be sued in the name of the all of the Trustees in their official capacity
iii. Can acquire, own and dispose of assets through the Trustees in their official capacity
iv. Can exist in perpetuity subject to the conditions set out in the Deed of Trust.

What are Trustees?
The Trustees are administrators of the Trust. Their duties and powers are defined in the Deed of Trust.

Advantages of a Deed of Trust

• The assets owned by a Trust belong to the Trustees in their official capacity .
Neither a Trustee, Founder nor beneficiaries can personalize the assets of the Trust.

• The Trustees can buy assets in the name of the Trust and dispose of them.
Should an asset be purchased by the Trust and registered in its name, its disposal can only be done by the Trustees in their official capacity and not by an individual associated with it.

• The Trust is run for the benefit of its beneficiaries in accordance with the objects of the Trust
Where the beneficiaries are the Founder’s children and descendants, any income generated by the Trust is for their benefit. Should the Founder die or no longer be able to personally provide for the upkeep of the beneficiaries, the Trust can continue to do so undisturbed.

• A Trust is a means of ensuring that the interests of the beneficiaries are looked after during and after the Founder’s lifetime. One does not have to worry about their children’s financial wellbeing after their demise as the Trust will continue to exist and operate after the Founder’s death. The Trustees will continue to carry out their mandate per the Deed of Trust

• The Trust continues to run even after the death of one or more of its Trustees.
Even after the death of the Founder, a Trustee or Beneficiary, the Trust continues to exist. Deceased Trustees are replaced in terms of the Deed of Trust.

• Assets of a Trust do not form part of a Trustee’s or beneficiaries’ estate when they die.
Because the assets belong to the Trustees in their official capacity, the death of any individual associated with the Trust does not affect the assets.. At most, the deceased is replaced as a Trustee or beneficiary of the Trust in accordance with the Deed of Trust.

• Trust assets do not form part of the matrimonial property of the Founder or Trustees.
Any assets that form part of the Trust cannot be claimed.

• Assets are not affected by the financial demise of one or more of its Trustees.
Where a Trustee or beneficiary has a judgment entered against them, the Trust assets are not affected by the judgement as they do not belong to the individual.
Creditors cannot claim Trust assets in satisfaction of the debt.

Protection offered by a Trust.

By transferring ownership of their immovable property to a Trust, one protects themselves against the following common scenerios:

• Upon the death of one or both of their parents, the house in which the children of the deceased live is sold by relatives to the prejudice of the children,

• A woman buys a stand or house, registers it in the partner/husband’s name and the partner/husband proceeds to sell it without consulting the partner/wife to the prejudice of the family.

• A property is bought and registered in a relative or friend’s name in order to protect the asset from a philandering husband only for the trusted friend or relative to dispose of the asset without consulting the purchaser of the property.

• A parent purchases assets and registers them in their child’s name only for the child to dispose of the property despite the fact that the parent resides in said property.

It is thus advisable to set up a family Trust that states who the beneficiaries are, how they are to benefit from the Trust as well as how the Trust is to be run to the best advantage of the beneficiaries.

By Kudzai Pamela Kaseke

Will vs. Family Trust
Both are viable and excellent options. Most people need a will, but not everyone needs a trust. Whether or not you need a family trust depends on your age, how wealthy you are, and whether you have beneficiaries. You have to consider the pros and cons of each and see what is best for you.

Pros of having a Will that provides for the creation of a Family Trust:
o Avoid probate on your assets Because all property passing through a living trust does not have to go through probate, it can be distributed to beneficiaries after the death of the grantor. This is only relevant if the family trust was registered before the founder’s death and if the property had already been transferred to the trust before hand.
o You can plan for the possibility of your own incapacity and have your wished placed onpaper making them legally binding for all future generations of beneficiaries.
o Use it for any size estate; and
o Allows you to establish provisions specifying when any beneficiary will be entitled to any access to the assets held in trust.
o You have control what happens to your property after you are gone. For instance where you think you need to limit access or control your heirs have over their inherited property i.e. Where you choose to leave a large sum to a minor, a trust can establish how and when the child will receive the money or you can state specifically how to pay for a child’s education. With a standard will your property can be passed on to those heirs but a will alone does not allow you to exercise much control over their use of the property.
o A properly constructed trust can help protect your estate from your heirs’ creditors, future spouses or from beneficiaries who may not be good at money management.
o You choose the trustees who will manage the trust and specify how they will manage the trust.
o Rarely challenged in court after your death unlike when a will is involved.

Cons of having a Will that also provides for the formation of a Living Trust:
• Is more expensive to set up than a will because it must be actively managed after it is created.
• A living trust is useless unless it is funded. Therefore, you have to make sure you allocate funds just for the general administration of the trust. Property should be transferred to the Trust this means that you need to pay all the fees required to change title from your name to that of the Trust.
• Are more complex to create than a will. A living trust must be prepared, sign