SHAW v SHAW & ANOR 1992 (2) ZLR 134 (S)

Flynote

Family law — Deceased Persons Family Maintenance Act 1978 — purpose of legislation — factors to be taken into account when deciding whether to award — meaning of maintenance

Headnote

Under the common law, with the dubious exception relating to a minor child, the duty of support owed by a person to another was not transmissible to his estate after he had died. The Deceased Persons Family Maintenance Act 1978 was passed to remedy this position and to ensure that the obligation to support dependents owed during lifetime would not terminate upon death. The policy underlying the legislation is that people who are owed a duty of support ex lege but have either been disinherited or not adequately provided for by the deceased in his will should derive support from the estate of the deceased rather than possibly becoming a charge upon the State. Maintenance for a wife does not mean the provision of mere subsistence; it means providing her with necessaries and conveniences in accordance with the social and economic environment of the previous marriage. The legislation provides for maintenance to be awarded from the estate only to dependents who are in need of such maintenance.

Mrs Shaw had been married to her late husband for thirty-four years and had helped him during his final illness. Nonetheless it was decided that she was not entitled to anything more than the six-month usufruct on a house which the heirs had offered her because she had a sufficient independent income and substantial assets and she had not shown that she had a need for maintenance.