CHIFAMBA v CHIFAMBA 2015 (1) ZLR 43 (H)

Flynote

Costs — maintenance enquiry — maintenance court may not award costs against unsuccessful party — court may make an award of expenses — such award having effect of civil judgment

Family law — maintenance — maintenance enquiry — nature of proceedings — not an ordinary civil action — successful party not entitled to costs — court's discretion to award expenses

Family law — maintenance — order for — may not be made retrospectively — failure to contribute to maintenance before order for maintenance made — may be taken into account in assessing claimant's future needs

A maintenance order cannot be made with retrospective effect. A claim for arrears of maintenance can only be entertained in relation to an order previously made by a court in terms of s 6 of the Maintenance Act [Chapter 5:09]. However, where there has been a previous failure to maintain, such failure may be relevant in assessing how much maintenance should be F paid in the future. The more a claimant's resources have been depleted by a defendant's neglect in the past to contribute to maintenance, the greater her need for future maintenance might be. This means that, although a maintenance order cannot be made in respect of the past, it can take the past into account.

A G maintenance enquiry is very different from an ordinary civil matter. The expenses that may be incurred by a party in relation to a maintenance enquiry are not synonymous with costs that are awarded in civil matters where, as a general principle, a party who is successful is entitled to claim them. Under s 31 of the Act, where a maintenance court makes a determination, the court may make an award of expenses where it appears just to do so, taking into account the means of the other person. Such an award has the effect of a civil judgment in favour of the party concerned. However, an appeal against the ruling of a maintenance court is in the nature of civil proceedings and courts of appeal may, in appropriate cases, make an order regarding the costs of the appeal.