Are you aware that the case of Sadiki vs Muteswa HH-249-20 affirmed that the common law position that the mother of a child born out of wedlock (parents not married) is given the sole guardianship and sole custody of the child, denying the natural father of the child the same rights is unconstitutional and is no longer the position of the law Zimbabwe.
To understand the new position better, it is important to have a brief background of the previous common law position.
Old position of the law
Previously under common law the mother of a child born out of wedlock enjoyed inherent rights of sole custody and sole guardianship of the child. The father of a child born out of wedlock was just like any other third party whose only relevance was considered when it comes to the issue of payment of maintenance. The father would pay maintenance without even seeing the child he was paying maintenance for. The father of such child was equated to any third party and as such the custody rights that vested in the mother could only interfered by approaching the courts if the mother was not exercising such rights properly. It therefore followed that a father of a child born out of wedlock could not go to court and simply allege that because he is the father of the child, or he is richer than the mother, or he pays maintenance he can interfere with the rights of the mother. It was regarded that it was in the best interests of the child that the rights of the mother should not be interfered with.
New Position of the law
As highlighted above the case of Sadiki vs Muteswa HH-249-20 has brought changes in the law governing custody and guardianship of children born out of wedlock. The current and new position of the law is that the mother and father of a child born out of wedlock whether under general law or customary law can now have joint custody and joint guardianship over their minor child. The mother together with the father can exercise rights of guardianship in consultation with each other. If a decision of either parent on any matter in relation to guardianship is incompatible with the other parent’s wishes and likely to affect the life, health and morals of the minor chid and the parents cannot reach an agreement, either party may approach the High Court to determine which is in the best interest of the minor child.
The court ruled that the common law position discriminated a child born out of wedlock by treating the child as if he or she had no father save for the purposes of maintenance. The treatment of a father of such a child like any other third party in matters concerning custody, access and guardianship showed that the child was fatherless and deserving no paternal care or attention save for the purposes of maintenance. The child was in essence being regarded as a commodity of some sort given that without rights of access, custody or guardianship the maintenance contribution was essentially channelled through the mother.
It was also ruled that it is unfair discrimination to deny a child the benefits of associating with his or her biological father, which is an aspect of parental care, on the mere ground of the marital status of the parent at the time the child was born. This common law principle was inconsistent with provisions of Section 81(1) (a) and Section 56 (1) and (3) of the Constitution which provides for rights of children to parental care and non-discrimination of the basis of being born inside or out of wedlock. In conclusion, the new position of the law is that both parents of a child born out of wedlock can now enjoy joint custody and joint guardianship rights of their minor child. In deciding such cases the best interests of the minor child are of paramount significance.
