Kudzai Midzi v Tsitsi Midzi

The appellant and respondent entered into a consent maintenance order in May 2013 whereby the appellant was ordered to pay US$1000 per month for their two minor children (Nokutenda Midzi and Mudiwa Midzi). At the time of the consent order, the appellant was also paying the children's school fees in full separately from the maintenance amount. In December 2013, the appellant unilaterally started paying only half of the school fees for their second child while continuing to pay full fees for the first child. On 4 January 2015, the appellant sent an email advising the respondent that he could no longer pay school fees for both children and asked her to pay these fees from the US$1000 maintenance amount. The respondent applied for an upward variation of the maintenance order, while the appellant counter-applied for a downward variation from US$1000 to US$700, claiming his financial circumstances had changed. The trial magistrate granted an upward variation, ordering the appellant to pay US$846.50 per month for school fees, US$122.33 for uniforms, and US$600 per month for general upkeep. The appellant appealed to the High Court.

• Whether there was a change of circumstances warranting variation of the maintenance order
• Whether the change of circumstances warranted an upward or downward variation of maintenance
• Whether the trial magistrate erred in granting an upward variation when the appellant's means had allegedly diminished
• Whether the trial magistrate acted on a wrong principle by considering the appellant's maintenance of his third child in determining the appropriate variation
• Whether the maintenance order granted exceeded the appellant's means
• The proper approach to assessing a party's income and means in maintenance matters where full disclosure is lacking

The appeal was allowed in part. The judgment of the court a quo was set aside and substituted with an order that: (1) The application for upward variation in case No. MC 1784/13 is granted; (2) The appellant is ordered to pay US$623 per month per child towards the maintenance of the two minor children of the marriage until each child attains the age of 18 years or becomes self-supporting whichever is earlier; (3) Each party shall bear their own costs of suit.

1. A change of circumstances for purposes of s 8(7) of the Maintenance Act can arise not only from changes in parties' income but also from a cessation of expenses previously being met outside the maintenance order. 2. Where a maintenance order did not include certain expenses (such as school fees) because these were being paid separately, the cessation of such separate payments constitutes a material change of circumstances warranting variation of the order. 3. In assessing means for maintenance purposes, courts must take a pragmatic view and ascertain not only what monies a party admits to having, but what could reasonably be made available if the party so wished (applying Lindsay v Lindsay). 4. Where both parents are gainfully employed, both should contribute proportionately to children's expenses including school fees and uniforms, with the contribution reflecting their respective means. 5. Children are entitled to maintenance that allows them to enjoy the same standard of living they had been accustomed to or as their parents are living.

The court observed that the appellant's failure to voluntarily tender documents showing his company's financial difficulties until prompted by the trial magistrate did not augur well and pointed to a lack of bona fides. The court noted that had the appellant been sincere about his diminished income, he probably would have been the first to apply for variation rather than waiting for the respondent to do so after he withdrew school fee payments. The court also commented that the trial magistrate's statement about treating all children fairly (comparing maintenance for the appellant's son at Africa University with the two minor children) was not actually applied in calculating the final figures, though the appellant had raised this as a ground of appeal. The court noted approvingly that the trial magistrate used actual school fees and uniform costs rather than the comparative figures mentioned in his reasoning.

This case is significant in Zimbabwean family law for clarifying the approach to variation of maintenance orders under s 8 of the Maintenance Act [Chapter 5:09]. It establishes that a change of circumstances can arise not only from changes in income but also from changes in what expenses a party is willing to cover. The case reinforces the principle from Lindsay v Lindsay that courts must take a pragmatic view of a party's means and not be misled by lack of candor, particularly where a party has multiple income sources. It also establishes that both parents who are gainfully employed should contribute proportionately to children's expenses, including school fees, even where one parent has greater means. The judgment emphasizes that children are entitled to maintain the standard of living they enjoyed previously and that both school fees and general upkeep must be adequately provided for.