Pauline Mubaiwa v Trust Mainzaqnise Chigwada

The plaintiff and defendant met in 1997, fell in love, and entered into an unregistered customary marriage. They had one child, Mandipa Bekezela Chigwada, born on 24 November 1999. The relationship deteriorated, leading to separation. The plaintiff initially sought distribution of assets claiming a universal partnership, custody of the minor child, and maintenance. During evidence, the plaintiff revealed that assets were acquired from illegal foreign currency trading activities. The defendant agreed to custody being awarded to the plaintiff but disputed the quantum of maintenance (US$3000 per month) and sought broader access rights. At the time of the hearing, the child was 15 years old, attending boarding school, with fees and school expenses paid by the defendant. The plaintiff had recently been released from prison in January 2015 after serving 4 months of a 6-month sentence.

• Whether the court should distribute assets claimed to have been acquired through a universal partnership funded by illegal activities
• What constitutes reasonable access rights for a non-custodial parent to a minor child
• What constitutes reasonable maintenance for a child in boarding school whose school fees and expenses are already paid by the responsible parent
• Whether the requirements of section 6 of the Maintenance Act [Chapter 5:09] were satisfied
• Whether the child's best interests supported remaining in boarding school

1. The plaintiff was awarded custody of Mandipa Chigwada born on 24 November 1999. 2. The defendant shall have access and stay with the minor child for two weeks during every school holiday. 3. The defendant shall pay school fees, buy uniforms twice per year, meet all the minor child's school needs including pocket money, holiday tuition and casual clothes twice per year, until she attains the age of majority. 4. The defendant shall during every school holiday pay maintenance to the plaintiff in the sum of US$250 for the maintenance of the minor child, until she attains the age of majority. The plaintiff's claim for distribution of assets was withdrawn.

Courts will not distribute assets acquired through illegal activities, applying the clean hands doctrine even in family law matters. In determining reasonable maintenance under section 6 of the Maintenance Act [Chapter 5:09], three factors must be established: (1) legal liability to maintain; (2) ability to contribute; and (3) failure to provide reasonable maintenance. "Reasonable maintenance" must be assessed considering: the responsible person's actual means and income; the dependant's genuine needs based on existing circumstances, not hypothetical future arrangements; the standard of living of both parties; and contributions already being made by the responsible person. Maintenance claims that are unreasonable or unsupported by the actual circumstances will be rejected. In access and custody matters involving mature children, the child's expressed views and best interests must be given serious consideration and weight.

The court observed that the use of the words "reasonable maintenance" and "contribute" in the Maintenance Act was deliberately intended to avoid unreasonable maintenance claims and to ensure what is granted can reasonably be expected to maintain the dependant and be paid by the responsible person. The word "reasonable" is colored by the responsible person's and dependant's standard of living, the means of the responsible person, and possible contribution from the other parent. The court noted that a 15-year-old child should not be treated like a very young child who may not know what is in her best interest, and her views must be taken seriously. The court commented that withdrawing a child from boarding school where her performance shows significant progress may have the demoralizing effect of burdening her with travel time replacing study time. The court recognized that girl children have feminine needs that mothers are better positioned to attend to, which should be factored into maintenance awards even if modest.

This case is significant in Zimbabwean family law jurisprudence for: (1) applying the "dirty hands" doctrine to prevent distribution of assets acquired through illegal activities, even in domestic partnership disputes; (2) emphasizing the importance of considering a mature child's views (15 years old) in custody and access matters; (3) interpreting "reasonable maintenance" under section 6 of the Maintenance Act [Chapter 5:09] in the context of a child in boarding school with most expenses already covered; (4) affirming that maintenance claims must be adjusted to the responsible person's actual means and the child's genuine needs, not hypothetical future arrangements; and (5) recognizing that both parents should contribute to a child's maintenance according to their respective means and the child's best interests.