AS Zimbabwe joins the world in commemorating the 16 Days of Activism Against Discrimination and Gender-Based Violence, it is an appropriate moment to interrogate the laws that still entrench discrimination — sometimes subtly, sometimes blatantly.
One such law becomes most visible at one of the most vulnerable moments in a family’s life: the dissolution of a marriage and the question of who assumes custody of minor children.
For generations, patriarchy, customary norms and even Roman-Dutch legal traditions assigned rigid domestic roles. Women were presumed to be caregivers — bearers of children, providers of emotional labour and keepers of the home — while men were cast as breadwinners and decision-makers.
Italian dictator Benito Mussolini once crudely summed up this worldview: “War is for men, what childbearing and the kitchen is for women”.
This worldview no longer reflects modern society.
Women now occupy positions of leadership, excel in professions once closed to them and share breadwinning responsibilities.
Men too increasingly play nurturing and caregiving roles. That reality makes the current law governing the custody of minors not only outdated but discriminatory.
A default rule based solely on gender
The Guardianship of Minors Act, Section 5, provides that when parents separate, custody of minor children automatically vests in the mother until a court orders otherwise.
In relevant part, the law states: Where either of the parents of a minor leaves the other and such parents commence to live apart, the mother of that minor shall have the sole custody of that minor until an order regulating the custody of that minor is made under section four or this section or by a superior court such as is referred to in subparagraph.
In plain terms, the law gives mothers default custody purely on the basis of gender, without any inquiry into the child’s best interests — the very standard our Constitution demands.
This position was affirmed in (Vice-President Constantino) Chiwenga v Marry Mubaiwa (SC 26/20 & SC 86/20), where the Supreme Court emphasised that courts must follow Section 5 when determining custody upon separation.
“The lawmaker has laid out elaborate laws and procedures for the regulation of issues to do with custody and guardianship of minor children,” the Supreme Court stated.
“The applicable law regulating the custody of children where their parents begin to live apart is to be found under s5 of the Guardianship of Minors Act.
“There was thus no call for the respondent to reach beyond and outside this law to found a claim for custody of her children.”
The effect is that, from the moment of separation and before any court intervenes, the mother shoulders all responsibilities of care — emotional, financial and physical - even where she lacks the means or support to do so.
Courts typically take weeks or months to issue maintenance or custody orders. During that gap, mothers may be overwhelmed, while fathers who are capable and willing to care for their children are legally sidelined.
Some argue that women can simply walk away too. In reality, that only breeds conflict and places children at the centre of adult battles.
We have even seen cases where babies are abandoned at the doorstep of estranged spouses, evidence of how ill-suited the default rule is to contemporary family dynamics.
A law at odds with the Constitution
The default maternal-custody rule is difficult to reconcile with the Constitution of Zimbabwe, which is unequivocal in its protection of equality and children’s rights.
Section 81(2): The best interests of the child are paramount in every matter concerning the child. This principle represents both a constitutional and moral directive that transcends parental preference based on gender.
Section 26(c): Both parents have equal duties to maintain and care for their children.
Section 56(3): Prohibits discrimination on the basis of sex or marital status.
These provisions place both parents on equal footing and demand an assessment of what arrangement best serves the welfare of the child, not what gender the caregiver happens to be.
To their credit, Zimbabwean courts have increasingly moved away from outdated assumptions that mothers are natural caregivers. Instead, they have adopted a more objective, welfare-centred approach, often drawing from the influential McCall v McCall factors, which include:
Age and sex of the child/children. If the children are very young, they are usually placed with the mother
Stability and continuity of care
The child’s own view, particularly if the child is mature enough to express themselves
The love, affection, or other emotional ties that exist between parent and child, and the compatibility of the parent with the child
The capabilities, character, and temperament of the parent and their impact on the children’s needs and desires
The ability of the parent to communicate with the child and their insight into, understanding, and sensitivity to the child’s feelings
The capacity and disposition of the parent to provide the guidance the child requires
The ability of the parent to provide for the child’s basic physical needs, such as food and clothing
The ability of the parent to provide for the child’s educational well-being and security, both religious and secular
The ability of the parent to support the child’s emotional, psychological, cultural, and environmental development
The mental and physical health and moral fitness of the parent
A call for legislative reform
Zimbabwean courts have developed a consistent jurisprudence that the best interests of the child supersede all other considerations, including parental wealth, gender and convenience.
The courts, acting as the upper guardians of all minors, have clarified how this principle must be applied in practice.
Collectively, these authorities show a decisive judicial trend in favour of gender-neutral and welfare-centered custody adjudication.
The outdated custody laws that place an unfair burden on women must be re-evaluated in light of modern societal dynamics and constitutional principles.
As Zimbabwe continues to strive for gender equality and the protection of children’s rights, it is imperative that our legal framework reflects these values.
The best interests of the child should always guide custody decisions, ensuring that both parents are given equal consideration, regardless of gender.
Only then can we foster a more just and equitable society for future generations.
Mhlanga is a law student at the University of Zimbabwe.
Both Mhlanga and Karasambudzi are law students at the University of Zimbabwe.