The Guardianship of Minors Amendment Bill
The Guardianship of Minors Act protects children upon divorce or judicial separation, of their parents. When a decree of divorce or judicial separation is granted by the High Court of Zimbabwe, the court looks at the best interests of the child. , “The guiding principle in all matters involving a child, is the promotion of the child’s best interest at all times. In Zimbabwe, the Guardianship of Minors Act (Chapter 5:08) regulates the law regarding minors, in accordance with the provisions of the Constitution Section 81(2). A minor according to the law is any person under the age of 18
Part of the reason for the amendment is to bring the Guardianship of Minors Act in line with provisions of the constitution, which grants women the same rights as men when it comes to custody and guardianship of minors. The Guardianship of Minors Act and the proposed Amendments establish the critical fact that where there is a dispute, the rights, needs, and welfare of the child trump the rights of parents.
Guardianship and Custody are important concepts in law with regards to minors in Zimbabwe. The Bill seeks to amend the Guardianship of Minors Act by amending sections 3, 4, and 5 of the Act respectively. The Amendment Bill introduces important legal terms which are:
(a) Legal custody—arises by virtue of the parents being married to each other or by virtue of an order of separation.
(b) Guardianship means– a legal right allowing either parent to manage the minor’s affairs including health, education needs, financial security or any welfare
The Bill seeks to repeal section 3 of the current Act and substitute it with new provisions on the exercise of joint guardianship and custody by parents as well as giving both parents equal rights in consultation with the other.In any decision concerning the child, both parents consult each other and a consensus must be reached. However, the amendment does not abolish the common law which states that the father is the dominant parent whose decisions on custody and guardianship prevail over the mother’s. The amendment gives the High court a deciding role in the event of a dispute between the parents (but only if the mother applied to the court) giving the mother custody of her children in the event of separation
In connection with an order of maintenance of a minor (whether or not as part of an order for divorce or separation), the court may expressly give any direction as to the manner in which the joint guardianship is to be shared or exercised
- Section 4 and 5 have been amended to delete certain provisions which appears as follows :
Section 4 (“Guardianship and custody of minors”) (1) (b) is amended by the deletion of “consent to a marriage”. Parents are not allowed to give consent to marriage of minors. Marriages of minors are outlawed in Zimbabwe.
Section 5 (“Special provisions relating to custody of minors”) (1) is amended by the repeal of “the mother” and substitution of “either of the parents”. The amendment provides that if parents separate either of the parents will have custody pending a court order.
It should be noted that the same law applies to customary law marriages, divorces as well as the civil law position stressing that the common position must ensure that both parents have equal rights and have to agree.
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