MUZONDO v MUZONDO 1985 (2) ZLR 240 (S)

Flynote

Husband and wife — maintenance — arrears — whether wife has a claim for arrear maintenance in respect of herself.

Child — maintenance — arrears — necessary proof — wife receiving assistance from third party — whether may claim arrears from husband.

Evidence — judicial notice — cost of maintaining child.

Legislation — Matrimonial Causes Act [Chapter 39] s 10(1) — desertion — meaning.

Headnote

The appellant husband was ordered by the High Court to pay to the respondent wife arrears of maintenance in respect of the minor children of the marriage. No evidence had been led to establish the amount of maintenance provided by the wife during the relevant period. Moreover the facts were that the wife's father had gratuitously provided for and maintained the children during the period in question.

Held the court, in a proper case, is entitled to use its general knowledge as to the approximate cost of maintaining a child in Zimbabwe.

Held, further, that a wife can claim arrear maintenance for her children in terms of s 10(1) of the Matrimonial Causes Act [Chapter 39] if her husband has failed, even temporarily, to provide the necessary support which the law enjoins. It is not necessary that he should have maliciously deserted her.

Held, further, that the support given by the wife's father was not maintenance provided by the wife and could not be reclaimed from the husband.

Held, further, obiter, that the principle "in praeteritum non vivitur" as applied to wives was old-fashioned and unenlightened and might need reconsideration.