Introduction
The Tanzania Child Development Policy (2008) has identified five basic rights of the child. These are: i) the child’s right to life; ii) the right to develop; iii) the right to protection; iv) the right to participation; and v) the right not to be discriminated against. There is no doubt that child support obligations touch all the five rights. There is also an underlying assumption that these five basic rights are best enjoyed within the family environment and, as noted in lecture ten, the child’s parents are legally obliged to ensure that the child enjoys those rights. This chapter discusses the legal provisions relating to the duty to maintain and support the child.
Child Maintenance During Marriage
Section 8 LCA states that it shall be the duty of a parent, guardian or any other person having custody of a child to maintain that child. The duty to maintain a child includes the duty to provide food, shelter, clothing, medical care (including immunization), education and guidance, liberty and the right to play and leisure. Much of this has been discussed in lecture ten as part of parental responsibility. It should be noted that child maintenance obligation is normally unproblematic when parents are living together under one roof. Problems arise when parents divorce and the court has to decide who has to have custody of the minor children and who is to provide maintenance for them. Where the husband neglects the family while remaining married to his wife, section 63 LMA requires such a husband to provide maintenance to his wife and his children under s129 LMA. The court has power to order the father to maintain his children under s 130 LMA.
Child Maintenance on Separation or Divorce
The duty to provide child maintenance when parents separate or divorce is narrower than that envisaged above under section 8 LCA. Section 129 LMA expresses this duty accurately. It states that it shall be the duty of a man to maintain his infant children, whether they are in his custody or the custody of any other person. This duty requires that the man provide accommodation, clothing, food and education, or their cost, as may be reasonable having regard to his means and station in life. The woman is also required under s 129(2) LMA to maintain or contribute to the maintenance of her infant children if their father is dead or his whereabouts are unknown, or if and so far as he is unable to maintain them. In this regard, the court is empowered under s 130(1) to order a man to pay maintenance for the benefit of his infant child. The court may also order a woman to maintain or contribute to the maintenance of her infant child or children where it is reasonable to make such an order having regard to the woman’s means. It must be stressed here that although the primary duty to maintain a child is placed upon the man, the mother is also expected to contribute to the child’s maintenance or to assume full responsibility where the father is not able to provide such maintenance due to various circumstances. It must be stressed that under section 46 LCA, the person entitled to receive and administer child maintenance is the person who has legal custody of the child.
Child Maintenance by Unmarried Parent
It was noted in Lecture Ten that an unmarried father may apply to a court of law to be declared a father of a child under s 34(1)(b)LAC. Where the court makes an order of parentage in line with the above cited provisions, a man in respect of whom such an order has been made, shall be under a duty to contribute towards the welfare and maintenance of the child as if the child had been born during wedlock (s41 LCA).
Where no proceedings have been taken out to determine the father of a non-marital child, the court may still make a maintenance order against an alleged biological father on the application of the expectant mother at any time before or after the birth of the child. The court may also require an alleged biological father to pay maintenance for the child if there is evidence that the alleged biological father had within the last twenty four months after the birth of the child paid maintenance for that child.
It is further provided that, in the case of the alleged biological father, the court shall refuse to grant a maintenance order against him unless it is satisfied first, that there is reasonable cause to believe that the man alleged to be the father of the child “is in truth and in fact the father of that child” and that the application for a maintenance order is made in good faith and not for any purpose of intimidation and extortion. And second, the court must be satisfied that the man alleged to be the father has been requested by or on behalf of the applicant to provide maintenance for the child and he has refused or neglected to provide such maintenance or has made inadequate provision (s 43(2) LCA).
Considerations when Making Maintenance Orders
In making the maintenance order, the court shall have regard to the income and wealth of both parents or of the person legally liable to maintain the child, including his financial responsibility with respect to the maintenance of other children.[1] The court shall also consider the cost of living in the area where the child lives and any impairment of the earning capacity of the maintenance payer (s 44 LCA). The court shall also consider the rights of the child stipulated in Part II of the LCA (ss 4-14 LCA) [See Lecture Nine]. It is also provided under s 45(1) LCA and s 136 LMA that before making a maintenance order the court may request a social welfare officer to prepare a social investigation report to assist in the determination of the award. It must be stressed though that s 136 LMA empowers the court also to seek the advice of a person who is trained or experienced in child welfare but shall not be bound to follow advice.
But where the court chooses to order a social investigation report under s 45(1) LCA and the report is produced, the court is bound to consider such report before making a maintenance order. Nonetheless, after considering such report the court still has discretion to follow or not to follow the recommendations contained in that report.
Duration, Enforcement, Variation and Discharge of Maintenance Orders
Subject to express orders by the court, an order for maintenance expires when the beneficiary child attains the age of 18 years (s 47 LCA and s132 LMA). Maintenance may however continue to be paid, despite the child attaining majority age, where that child is engaged in a course of continuing education or training. Application to extend maintenance beyond majority age may be brought either by a parent who has custody of the child; a person who has custody of the child or the child himself or herself. An action may be brought to the court by an interested person, to enforce an order of maintenance within forty five days after the order is made or is due. (Note that s 48(3) LCA speaks of any person, but surely he/she must have an interest in the matter; see s 133 LMA speaks of interested person).
Where the court makes an order for maintenance of a child or children, it may also order the person liable to secure such maintenance in whole or any part of it by vesting any property in trustees upon trust to pay such maintenance out of the income from such property. Every maintenance order made by a court shall be enforceable in respect of any maintenance accrued under such order in the same manner as decree for the payment of money passed by that court and the provisions of the Civil Procedure Code relating to the enforcement and execution of decrees for payment of money shall apply mutatis mutandis to the enforcement of an order for maintenance (s124 (4)LMA).
Variation or discharge of maintenance orders can be made by the court at any time and from time to time on an application by the person having custody of the child or any other person legally liable to maintain the child (s49 LCA). The court may vary or rescind an order for maintenance if it is satisfied that the said order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances of the parties (s 133LMA). The court may also vary from time to time a maintenance agreement made between the parties (s134LMA).
Where the court makes an order for maintenance of a child or children, it may also order the person liable to secure such maintenance in whole or any part of it by vesting any property in trustees upon trust to pay such maintenance out of the income from such property.
Summary and Conclusion
This lecture has discussed child maintenance obligations during marriage and upon separation or divorce. We have also examined the maintenance of a child born to parents who are not married to one another. The factors to be considered by the court when ordering maintenance have been examined. Duration of maintenance orders, their enforcement, variation and discharge have been considered briefly. What requires stressing here is that the statutory duty to maintain a child remains largely upon male shoulders and only exceptionally upon mothers. This may appear to be a natural division of labour in a society where men are predominantly in paid employment while women are home makers. But this approach of the law appears to define child maintenance more narrowly to mean merely the supply of money with which to purchase the child’s needs from the market. But in societies where the child’s needs are obtained from farming and livestock, it is clear that women shoulder, at least an equal, if not a greater maintenance burden. Moreover, if the definitions of child maintenance under s 8 LCA and s 129LMA are to be read to include day to day child care, then again mothers do shoulder the greater burden of child maintenance than men. The next lecture examines child care outside the traditional family.
