On the 22nd of May 2022 a new law on Guardianship of minors was passed. This law is known as Guardianship of Minors Amendment Act, 2022.This law brings in some progressive changes to matters involving the welfare of children. The new law introduces legal definitions to the terms ‘custody’ and ‘guardianship’ and brings both parents to equality in exercising their rights over the affairs of children in consultation with each other. The Constitution of Zimbabwe provides that, “A child’s best interests are paramount in every matter concerning the child”. This calls upon the State to “adopt policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount. It is against this background that this law has been introduced.

The Guardianship of Minors Amendment Act 2 of 2022 has amended sections 3, 4 and 5 of the Guardianship of Minors Act (Chapter 5:08). The Amendment Act provides as below;

The Amended Act provides in Section 2 for the definition of the legal terms Custody and Guardianship. This is a welcome development as the previous Act did not contain a definition of these important legal terms. These definition of custody makes reference to parents in a marriage and those not married. The definitions are set out below as below;

definitions––
“custody”, in relation to a minor, means––
(a) legal custody arising by virtue of the parents being married to each other or by virtue of an order of separation or divorce; or
(b) actual custody, where the parents are not married to each other (without derogating from the common law position that minors born out of wedlock are in the custody of the mother); “guardianship” means a legal right allowing either parent to manage the minor’s affairs including health, education needs, financial security or any welfare

2. The new Amended Act also substitutes section 3 with new provisions on the exercise of guardianship and custody by parents. Before the amended Act, section 3 of the Act provided that it is the duty of the father to consult the mother of questions of guardianship and thus gave superior rights to the father. The Amended Act has changed this position and gives both parents equal rights in consultation with each other. It introduces joint guardianship and custody by parents. It provides below,

Section 3 is repealed and substituted by—
“3 Exercise of joint guardianship and custody by parents

(1) The parents of a minor, whether married or otherwise, shall exercise their rights of guardianship and custody in consultation with each other:
Provided that where the parents are not living together as man and wife, the custodial parent shall exercise all guardianship rights in relation to the child in his or her custody, unless the non-custodial parent by virtue of a court order (whether a maintenance order, order of divorce or otherwise) is required to be consulted on any issue in connection with the guardianship of the child.

(2) 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.”

3. Section 4 and 5 have been amended to delete certain provisions as appearing in the current Act as shown below;

Section 4 (“Guardianship and custody of minors”) (1)(b) is amended by the deletion of “ the power to consent to a marriage”.

Section 5 (“Special provisions relating to custody of minors”) is amended— (a) in subsection (1) by the deletion of “the mother” and the substitution of “either of the parents”;

(b) by the deletion of subsection (2) and the substitution of—
“(2) Where—
(a) the parent of a minor (“the custodial parent”) has the sole custody of that minor in terms of subsection (1); and

(b) the other parent or some other person removes the minor from the custody of the custodial parent or otherwise denies the custodial parent the custody of that minor; the custodial parent may apply to a children’s court for an order declaring that he or she has the sole custody of that minor in terms of subsection (1) and, upon such application, the children’s court may make an order declaring that the custodial parent has the sole custody of that minor and, if necessary, directing the other parent or, as the case may be, the other person to return that minor to the custody of the custodial parent.”.

Guardianship and Custody are important legal concepts when dealing with the affairs of a minor children. The provisions of the Guardianship of Minors Amendment Act of 2022 are in the best interests of minor children as it seeks to improve the current state of the law on guardianship and custody.

For any inquiries relating to Guardianship, Custody or any children’s rights or family law matters, kindly get hold of our Family Law Practice Group on info@mmmlawfirm.co.zw