The Guardianship of Minors Amendment Act 2022 was gazetted on the 20th of May 2022 and it was long overdue since there was a need to align the Act with the Constitution which is the supreme law of the land. This Amendment to the Guardianship of minors Act [Chapter 5:08] (hereinafter referred to as the Act) introduces the concept of joint guardianship and custody by parents and this is in line with section 80(2) of the Constitution. In the spirit of aligning with the Constitution, the Amendment gives both parents equal rights in matters of guardianship and custody. It further prohibits parents from consenting to their minor children's marriage, which is a plausible development given the outcry regarding the rampant child marriages in Zimbabwe.
Analysis of the key aspects of the Amendment
The Amendment gives both parents equal rights when it comes to the matters of guardianship as well as custody and bars parents from consenting to marriages of their minor children. Prior to the Amendment, the Act assumed that fathers were the guardians of minor children, whilst it favored mothers when it came to child custody issues.
The Amendment includes definitions of custody and guardianship, which were missing in section 2 of the Act. The Amendment divides custody into categories: Legal custody and Actual custody. Legal custody is that which arises as a result of the parents' marriage or as a result of a separation or a divorce order. Actual custody, on the other hand, refers to custody of children born outside of marriage (born out of wedlock). The Act's definition of Actual custody, on the other hand, recognizes the usual legal view that minors born out of wedlock are in the mother's custody.
In cases of parental separation prior to the Amendment, mothers enjoyed automatic custody rights over their minor children. However, the Amendment has given this viewpoint a new dimension. If parents' divorce or go on separation, Section 5 of the Amendment now states that "any of the parents" can have custody until a court ruling assigns custody to either of them. The legislation now explicitly states that upon separation, either the father or the mother can obtain custody of the minor children.
Furthermore, there was no definition of guardianship in the Act. The definition of Guardianship has been added to the Act to mean a legal right that allows either parent to oversee the minor's affairs, including health, education, financial security, and other welfare concerns. The Amendment deleted section 3 of the Act and replaced it with new provisions concerning parental guardianship and custody. The old section 3 of the Act provided that it was the duty of the father to consult the mother on questions of guardianship and thus gives the father superior rights to the mother over guardianship rights. The Amendment Act has thus modified this position and gives both parents equal guardianship rights in consultation with each other.
The old section 3 provided that all rights in respect of a child born out of wedlock that is including custody and guardianship were vested in the mother. The father of a child born out of wedlock had no rights at all in relation to the child. Such a father was in the same situation as a third party in relation to the child. The position has slightly changed with the introduction of equal rights of both parents to custody and guardianship of minors. The new position brought about by the Amendment Act is that the parent who has custody of the child, whether it is the father or the mother, has the right to exercise guardianship rights over the child unless there is a court order stating that the non-custodial parent is required to be consulted on any issue concerning the guardianship of the minor.
Another remarkable feature to the Act is the prohibition of consenting to child marriages. The provision to the Act was in conflict with the current Constitution as it allowed guardians to consent to minors' marriages. Section 4 of the Amendment has removed the reference in Section 4 of the Act to parents consenting to their minor children's marriage. Now that the marriage of minors has been outlawed, parents cannot give such consent. This provision aligns with section 78 of the Constitution that says that anyone who has attained the age of 18 has the right to found a family.
Ultimately, the Amendment has introduced extremely important factors that impact parents' guardianship and custody rights. Although this new law of joint custody and guardianship appears to relate to parents who live together, it stresses out that parents must exercise their guardianship rights in consultation with one another. Another key aspect to keep in mind is that when parents live apart, the custodial parent, who can be either the father or the mother, will exercise all guardianship powers over the children unless a court decision, such as a maintenance order, requires the parents to consult each other. The court has been empowered in other instances to expressly give any direction as to the manner in which the joint guardianship is to be shared or exercised.
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