Divorce, Child Custody and Child Maintenance in Malawi

Divorce in Malawi happens through the courts when a marriage has broken down irretrievably, meaning you and your spouse can no longer live together as husband and wife.² Before the court grants a divorce, both parties must have made arrangements for their financial future and undergone marriage counselling.⁶ You can also apply for judicial separation, which legally separates the couple by court decree without ending the marriage.²

Applying for maintenance and custody

A party to a marriage, a child, or a person specified in law may apply to court for a maintenance order against the other party.³ The court will consider various factors when deciding on maintenance for necessaries of life including shelter, food and education.³ Similarly, when proceedings for nullity, judicial separation, divorce or other matrimonial matters are filed, the court can make a maintenance order during or after these proceedings.⁴⁵

Custody and child welfare

When the court makes an order for maintenance or custody of a child, the decision must be based on the best interests of the child.³ The child justice court will consider the child’s views, whether siblings should stay together, and any other relevant matters.⁴ The court has power to grant custody or access to the child and can attach appropriate conditions to its order.⁴

How maintenance is enforced

Maintenance orders become enforceable 30 days after they are made, though the child justice court can order a longer period if circumstances require.⁵ Unless the court orders otherwise, both parents share joint responsibility to maintain a child.⁵ The person with custody receives the maintenance funds and must administer them on behalf of the child.⁵ Local government officers responsible for child welfare receive a copy of the maintenance order and make quarterly reports to the child justice court about how the funds are being managed.⁵

Changing or ending orders

A court having jurisdiction where an order was made may vary or discharge the order later if circumstances change.³ If a person ordered to pay maintenance moves to a foreign country, the court can send a certified copy of the order to the appropriate authority in that country.²