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The Guardianship of Minors Act 2022 was published in the Official Gazette on 20e of May 2022 and it was long overdue as it was necessary to align the law with the Constitution which is the supreme law of the land. This amendment to the law on guardianship of minors [Chapter 5:08] (hereinafter referred to as the Law) introduces the concept of joint parental guardianship and custody, which is consistent with Article 80(2) of the Constitution. In the spirit of alignment with the Constitution, the amendment gives both parents equal rights to guardianship and custody. It further prohibits parents from consenting to the marriage of their minor children, which is a plausible development given the outcry over child marriages plaguing Zimbabwe.
Analysis of the main aspects of the Amendment
The amendment gives both parents equal rights to guardianship and custody and prohibits parents from consenting to the marriage of their minor children. Prior to the amendment, the law assumed that fathers were the guardians of minor children, while it favored mothers in matters of child custody.
The amendment includes definitions of custody and guardianship, which were missing from section 2 of the Act. The amendment divides custody into categories: legal custody and actual custody. Legal custody is that which results from the marriage of the parents or from an order of separation or divorce. Effective custody, on the other hand, refers to custody of children born out of wedlock (born out of wedlock). The law’s definition of actual custody, on the other hand, recognizes the usual legal view that minors born out of wedlock are in the custody of the mother.
In the event of the parents’ separation before the Amendment, the mothers automatically benefited from the right of custody over their minor children. However, the Amendment has given this point of view a new dimension. If the parents divorce or separate, section 5 of the amendment now states that “either parent” can have custody until a court order awards custody to one of them. them. The legislation now explicitly stipulates that in the event of separation, the father or the mother can obtain custody of the minor children.
Moreover, there was no definition of guardianship in the law. The definition of guardianship was added to the law to mean a legal right that allows either parent to supervise the affairs of the minor, including health, education, financial security and other well-being issues. The amendment deleted section 3 of the law and replaced it with new provisions regarding parental guardianship and custody. The former Section 3 of the Act provided that it was the duty of the father to consult the mother on matters of guardianship and thus granted the father superior rights to the mother in guardianship rights. The Amendment Act has therefore changed this position and gives both parents equal guardianship rights in consultation with each other.
Former Article 3 provided that all rights relating to a child born out of wedlock, including custody and guardianship, belonged to the mother. The father of a child born out of wedlock has no rights over the child. Such a father was in the same position as a third party in relation to the child. The situation has changed slightly with the introduction of equal rights for both parents in matters of custody and guardianship of minors. The new position brought by the amendment law is that the parent who has custody of the child, whether it is the father or the mother, has the right to exercise guardianship rights over the child. unless there is a court order stating that the non-custodial parent is required to be consulted on any matter concerning the guardianship of the minor.
Another notable feature of the law is the prohibition against consenting to child marriages. The provision of the law is contrary to the current Constitution as it allows guardians to consent to marriages of minors. Article 4 of the amendment deleted the reference in article 4 of the law to parents consenting to the marriage of their minor children. Now that underage marriage is outlawed, parents cannot give such consent. This provision is in line with article 78 of the Constitution which stipulates that anyone who has reached the age of 18 has the right to found a family.
Ultimately, the amendment introduced extremely important factors that affect parental guardianship and custody rights. Although this new law on joint custody and guardianship seems to concern parents who live together, it insists that parents must exercise their guardianship rights in consultation with each other. Another key aspect to bear in mind is that when parents live apart, the custodial parent, who may be the father or the mother, will exercise all powers of guardianship over the children unless a court order, such as than a support order, only requires the parents to consult each other. The court has been empowered in other cases to give express directions as to how joint guardianship is to be shared or exercised.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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