MHLANGA v MHLANGA 2014 (2) ZLR 601 (H)

Flynote

Family law — c husband and wife — divorce — maintenance — approach to — treating parties on equal basis — need to achieve substantive equality — unequal power dynamics that may apply — one party may be at a disadvantage compared to other

Headnote

The appellant appealed against the grant of maintenance to his wife and child. The parties were in the process of divorce. The appellant had been employed at an embassy abroad and for a time his wife, the respondent, and their child stayed with him. They returned to Zimbabwe on holiday and when he went back to his foreign posting he told his wife that shewould be staying in Zimbabwe. At the time this happened, the respondent was pregnant with another child.

The appellant, apart from disputing his financial status, argued that, with the emergence of equality, young women can no longer expect maintenance for life as a result of their marriage, more so where a woman has workedbefore and is young enough to obtain employment. The appellant argued that the respondent fell squarely into this envisaged bracket where maintenance for herself was not called for and to grant it infringed the concept of equality.

Held, that while self-reliance is to be applauded and accords with the principle of equality between men and women as a core constitutional value, theapproach to equality must always aim at achieving substantive, rather than merely formal, equality in light of the circumstances of each case. Interpreting equality to always entail a gender neutrality approach that emphasises sameness between men and women can lead to the very inequality which the Constitution enjoins the courts and society to guard against. Such an approach does not distinguish between men and women

in any way, neither does it recognise the unequal power dynamics that may be inherent between the parties that may, to a large measure, be largely contributory to the dispute in question.

Whilst an approach to equality founded on women's sameness with men clearly has its uses depending on the circumstances to be addressed, it is, however, not the only approach to achieving equality between the sexes, nor is it always appropriate for all issues. Equality is a fundamental constitutional principle, but the methodological approach to its actual achievement is by no means through a singular constant such as sameness, and the courts should not treat it as if it were. There are other pertinent approaches that the court can embrace in giving effect to equality, such as the "difference approach". There is also the "disadvantage approach". These two approaches were equally manifest in the matter in the court below. Equality may be achieved by recognising the differential effects of power between men and women that arise within a particular context and that may place a woman at a disadvantage compared to a man. In this case, the respondent was at a relative disadvantage at having joined him abroad as a spouse, temporarily forgoing the opportunity to advance her own career. When she returned, she was unemployed and pregnant and without an income. To seek to deny her even bridging support on the pretext that she could work would be to miss the point that is manifested by real life situations that can lead to inequality. In the face of lack of meaningful gains for women as a marginalised group, using sameness as the standard of equality (de jure equality), the reality is that increasing emphasis is being placed on the role of power play and power dynamics between the sexes in understanding the failure to achieve equality in real life settings (de facto equality). The respondent presently had no earning capacity and therefore was in a considerably weaker and disadvantaged economic position compared to the appellant.