The dangers of cohabiting: a children’s rights perspective

By Fadzai Mamvura

Many young people, who want to get married, are finding it harder and harder to pay roora (lobola) or take a step further and be married by civil rites, most commonly referred to as a Chapter 5:11 marriage because of high wedding costs and expectations.

It has therefore become very common for young people in love to opt to cohabit, some with the hope of formalising their relationship in the future but for others as a permanent living arrangement. The property rights of those cohabiting have already been discussed in an earlier article in which we asked if Cohabiting is marriage.

You will find that in some instances, if not most, there are children born as a normal consequence of cohabiting for a number of years. What then happens to those children when the parties involved decide to call it quits or one of them dies? What is the fate of the children as their parents’ “union” is not considered as any form of marriage under Zimbabwean Law?

Under such a scenario, there are three critical questions to consider:-

Who takes custody of the minor children?

What rights of access does either of the parents have to the minor children? and

Who is liable (responsible) for the upkeep of the minor children?

  1. Custody

In law, the mother of any child born out of wedlock is considered the custodian of such a child. What this means is that if a couple is cohabiting and decide to go their separate ways, it is the mother who will have custody of the children. The mother’s right in this regard is only tampered with by the court in very rare circumstances where the father can show why she is not a fit and proper person to raise the child or why it would be in the best interests of the child to live with someone else.

  1. Access

All rights in respect of a child born out of wedlock are vested in the mother and she has the same rights as those of the parents of a legitimate child. The father of a child born out of wedlock has no rights at all in relation to the child. This means that unless legitimate grounds are raised to interfere with the mother’s rights then the father of the child cannot approach the court seeking to interfere with those rights simply because he is the biological father of the child.  That is the law.

  1. Maintenance

A child, whether born in or out of wedlock, must be maintained. Each party ought to contribute to the maintenance of the child according to their means. It is not only a person who is formally employed that should bear the responsibility to pay maintenance. With the way the economy is at the moment, many people are working in the informal sector. They often do not have a written record of their earnings, but this does not stop the court from making a determination on how much each party must contribute towards the maintenance of a minor child.

The court will look at, among other things, your lifestyle, to come to its determination. In the event of death, a child should still be maintained by the estate of the late parent whether or not the child was born in or out of wedlock. This will be the subject of a future brief.

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