The parties were married and subsequently divorced by order of the High Court. They had two children. A Consent Paper was made an order of court requiring the respondent to pay US$500 per month as maintenance for the two children (US$150 for each child and US$200 for accommodation), contribute equally to school fees, and provide medical aid cover. The applicant sought upward variation of maintenance from US$500 to US$2,517 per month for the remaining minor child (the first child having attained majority), claiming changed circumstances and alleging she was unduly influenced to consent to the original order as she was self-acting. She claimed the respondent earned approximately US$8,000. The respondent opposed, stating he had complied with the order, his income had decreased from US$1,800 as a mine manager to approximately US$1,000 from part-time work, he pays US$720 in support, and denied owing arrears or that there were changed circumstances warranting variation.
1. The application for upward variation of maintenance is dismissed. 2. The respondent is ordered to continue paying maintenance in the sum of US$500.00 per month for the minor child. 3. The claim for arrear maintenance is dismissed. 4. Each party shall bear its own costs.
To obtain variation of a maintenance order under section 8(2) of the Maintenance Act [Chapter 5:09], the applicant bears the onus to establish good cause by demonstrating that there has been a material change in the conditions that existed when the order was made, such that it would be unfair to leave the order in its original form. Good cause requires more than mere dissatisfaction with the existing order and must be supported by cogent evidence. A change in circumstances may include changes in income earning capacity, financial resources, needs of the child, or obligations of the parties. Maintenance must balance the needs of the child against the means of the parties, and a child should not be exposed to a lifestyle beyond the parents' capacity to afford.
The court observed that the fact that an applicant is now legally represented does not constitute a change in circumstances justifying variation of terms that were willingly agreed to and signed in a consent order. The court also noted that while the Consent Paper allocated US$500 for two children with US$150 specifically for the child who has since attained majority, it was in the best interests of the remaining minor child that the respondent continue paying the full US$500 per month, despite the respondent not having requested a reduction following the first child attaining majority. The court emphasized the principle from Kasu v Kasu that both parents have an obligation to maintain their children according to their means while trying to ensure children enjoy the quality of life they were accustomed to before divorce.
This case reinforces important principles in Zimbabwean family law regarding variation of maintenance orders. It emphasizes that: (1) The applicant seeking variation bears the onus to prove changed circumstances amounting to good cause; (2) Mere dissatisfaction with an existing order is insufficient - material change in circumstances must be demonstrated; (3) Subsequent legal representation does not constitute changed circumstances warranting variation of a voluntarily entered consent order; (4) Courts will balance children's needs against parental means and will not impose maintenance beyond the capacity of the paying parent; (5) Allegations of undue influence must be substantiated with evidence. The judgment provides guidance on the application of section 8(2) of the Maintenance Act [Chapter 5:09] and section 11 of the Matrimonial Causes Act [Chapter 5:13].