DOMESTIC RELATIONS
MAUREEN SAMULELA TRESHA
MANAGING PARTNER
SEPO LEGAL PRACTITIONERS
Types of marriage in Zambia
• Customary
• Religious marriages
• Statutory marriages
Recommended laws
• Matrimonial Causes Act Number 20 of 2007
• Matrimonial Causes Rules of England 1973
• Marriage Act Chapter 50 of the Laws of Zambia
DISSOLUTION OF MARRIAGE
• A divorce petition can only be brought to
court after a year of marriage
• Parties are not prohibited from presenting a
petition after a year based on what happened
within the first year
PETITION FOR DIVORCE AFTER
JUDICIAL SEPARATION
• Same facts presented at petition for judicial
separation can be presented later for divorce
• Facts presented at the judicial review will be taken
as ready proved at point of petition for divorce
based on the same facts but the Court must receive
evidence from the Petitioner
Ground for divorce
•Marriage has broken down
irretrievably
Fact One
ADULTERY
• It should be proved that the respondent has committed
adultery and the petitioner finds it intolerable to live
with the respondent Sec 9(1)(a)
• Adultery is condoned if after the adultery parties live
together for a continuous period exceeding six months
or periods together exceeding six months. A period for
six months or less is disregarded. Sec 12
ADULTERY Cont’d
• The Person that the petitioner committed adultery with
shall be cited as a party to the proceedings
• If there's no sufficient evidence against the person who
committed adultery, that person will be removed as a
party to the proceedings on an application being made.
This application is made at the close of the case.
ADULTERY Cont’d
• Damages can be claimed from the person who has
committed adultery with a party to a marriage Sec 11
• Damages shall not be awarded where the adultery was
condoned
• Damages shall not be awarded where the adultery
happened over 3 years before date of petition
Fact 2
Unreasonable behaviour
• It should be proved that the respondent has
behaved in such a way that the petitioner
cannot reasonably be expected to live with the
respondent
Fact 3
Desertion for a continuous period of two years
• The Petitioner must prove that the respondent has deserted the petitioner
for a continuous period of at least two years immediately preceding the
presentation of the petition
• A married person whose conduct constitutes just cause or excuse for the
other party to the marriage to live separately or apart, and occasions that
other party to live separately or apart, shall be deemed to have wilfully
deserted that other party without just cause or excuse, notwithstanding that
the person may not in fact have intended the conduct to occasion that other
party to live separately or apart
Desertion Contd
Four elements are looked at for desertion to occur:
• The defacto separation of the parties
• The intention of the other party to remain separated
• The lack of consent on the part of the deserted party
• The absence of any reasonable cause for withdrawing from
cohabitation
Desertion contd
• The Court may treat a period of desertion as having
continued at the time when the deserting party was
incapable of continuing the necessary intention, due to
mental illness or otherwise, if the evidence before the
Court is such that, had that party not been so incapable,
the Court would have inferred that the respondent's
desertion continued at that time.
Desertion contd
• Where a husband and wife are parties to an agreement
for separation, whether oral, in writing or constituted by
conduct, the refusal by one of them, without reasonable
justification, to comply with the other's bona fide request
to resume cohabitation constitutes, as from the date of
the refusal, wilful desertion without just cause or excuse
on the part of the party so refusing.
Living apart for a continuous period of two
years with consent
• The Petitioner must show that the parties to the marriage
have lived apart for a continuous period of at least two
years immediately preceding the presentation of the
petition and the respondent consents to a decree being
granted;
Living apart for a continuous period of two
years with consent
• It should be clear that the respondent consents to the
divorce
• The parties to a marriage may be held to have separated
notwithstanding that the cohabitation was brought to an
end by the action or conduct of only one of the parties.
Sec 15
Living apart for a continuous period of five
years
• The Petitioner must prove that the parties to the
marriage have lived apart for a continuous period
of at least five years immediately preceding the
presentation of the petition.
Living apart for a continuous period of five
years contd
• The respondent to a petition for divorce in which the
petitioner alleges five years separation may oppose the
grant of a decree on the ground that the dissolution of
the marriage will result in grave financial or other
hardship to the respondent and that it would in all the
circumstances be wrong to dissolve the marriage. 18
Calculations of time
• For the purposes of proceedings for a decree of
dissolution of marriage, in calculating any period for
which the parties have been living separately and apart,
and in considering whether such period has been
continuous, no account shall be taken of any one period,
not exceeding six months, during which the parties
resumed cohabitation with a view to reconciliation.
Nullity of marriage
Marriage is void when:
27. (1) the parties are within the prohibited
degrees of consanguinity or affinity;
(2) either of the parties was under the age of
sixteen;
Nullity of marriage contd
3. the parties have not complied with the requirements of
the Act with respect to the solemnisation of the marriage
as specified in subsection (2) of section thirty-two of that
Act;
4. that either party to the marriage was lawfully married to
some other person at the time of the marriage; or
5. the parties to the marriage are of the same sex
Voidable marriage
29. A marriage not being a marriage that is void,
shall be voidable on the grounds that—
(a)the marriage has not been consummated due to
the incapacity of either party to consummate it;
COURT WILL NOT GRANT UNLESS
satisfied that the incapacity to consummate the
marriage also existed at the time when the
hearing of the petition commenced and that—
(I) the incapacity is not curable;
CONTD
(II) the respondent refuses to submit to such medical
examination as the court considers necessary for the
purpose of determining whether the incapacity is curable;
or
(III) the respondent refuses to submit to proper treatment
for the purpose of curing the incapacity.
CONTINUED
(b) the marriage has not been consummated due to
the wilful refusal of the respondent to consummate
it;
© consequence of duress, mistake, unsoundness of
mind or otherwise
CONTD
either party to the marriage did not validly consent
to it,
• COURT SHALL NOT GRANT unless it is
satisfied that proceedings were instituted within
three years from the date of the marriage.
Voidable marriage
• (d) at the time of the marriage either party, though
capable of giving a valid consent, was suffering, whether
continuously or intermittently, from a mental disorder
within the meaning of the Mental Disorders Act of such
a kind or to such an extent as to be unfitted for marriage;
COURT SHALL NOT GRANT unless it is satisfied that proceedings were instituted
within three years from the date of the marriage.
CONTD
• satisfied that the petitioner was at the time of
the marriage ignorant of the facts alleged.
voidable
• (e) at the time of
the marriage the respondent was
suffering from a sexually transmitted disease in a
communicable form; or
• COURT SHALL NOT GRANT unless it is
satisfied that proceedings were instituted within
three years from the date of the marriage.
COND
• COURT SHALL NOT GRANT UNLESS
satisfied that the petitioner was at the time of
the marriage ignorant of the facts alleged.
CONTD
• (f) at the time of the marriage the respondent was pregnant by
someone other than the petitioner
• COURT SHALL NOT GRANT unless it is satisfied that proceedings
were instituted within three years from the date of the marriage
• COURT SHALL NOT GRANT UNLESS satisfied that the petitioner
was at the time of the marriage ignorant of the facts alleged.
Decree of nullity shall not be granted when
• a) that the petitioner, with knowledge that it was open to
the petitioner to have the marriage avoided, so conducted
oneself in relation to the respondent as to lead the
respondent reasonably to believe that the petitioner
would not seek to do so; and (b) that it would be unjust
for the respondent to grant the decree. 30.
contd
• Notwithstanding subsection (1), the Court shall not grant a decree of nullity
under section twenty-nine on the grounds specified in paragraphs (c), (d), (e)
or (f) of that section unless it is satisfied that proceedings were instituted
within three years from the date of the marriage.
• (3) Notwithstanding subsection (1) and (2), the Court shall not grant a decree
of nullity under section twenty-nine on the grounds specified in paragraph
(e) or (f) of that section unless it is satisfied that the petitioner was at the
time of the marriage ignorant of the facts alleged.
Under incapacity to consummate
• Court should be satisfied that the incapacity to consummate the marriage also
existed at the time when the hearing of the petition commenced and that—
(a) the incapacity is not curable;
(b) the respondent refuses to submit to such medical examination as the court
considers necessary for the purpose of determining whether the incapacity is curable;
or
(c) the respondent refuses to submit to proper treatment for the purpose of curing the
incapacity.
JUDICIAL SEPARATION
• Shall rely on facts that are used to prove irretrievable breakdown of a
marriage Sec 34
• The effect is to relieve the petitioner of the right to cohabit though the
parties remain married
• What happens when a party dies intestate?
• What procedure should be taken where a party wants to have a
marriage dissolved when they are on separation?
Question
Can order of separation be discharged?
Answer and cross petition
•
•
•
•
•
•
Heading
Caption with answer and cross petition
Opening statement
Paragraphs admitted
Paragraphs partially admitted
Paragraphs disputed and own position added
Contd
Heading (cross petition)
•
•
•
•
•
Response to ground
Facts
particular
Prayer
dated
contd
• Respondents signature
• Respondents or advocates address
• Petitioners address
Decree Nisii and Decree Absolute
• A decree of dissolution of marriage or nullity of marriage of a
voidable marriage under this Act shall, in the first instance, be a
decree nisii.
• A decree nisi becomes absolute by force of this section at the expiration of a
period of six weeks from the making of the decree. Sec 43
• Either party may apply for decree nisii to be made absolute
contd
• Decree Nisii shall only become absolute where:
• There no children of family
• The children of the family have been taken care of
contd
• Children are defined here as:
• The children of the family who are under the age of
twenty one years at the date of the decree nisi; and
• (b) any children of the family above 21 in relation to
whom the Court has ordered that this section shall
apply.
RESCISSION OF DECREE nisi
• A Decree Nisi may be rescinded by the court
on application by the Respondent, the
Attorney General or any third party called an
intervener.
•
LEAVE TO INTERVENE IN THE
PROCEEDINGS
• In proceedings for a decree of dissolution or nullity of marriage or judicial
separation or where a person applies to the Court for leave to intervene in
the proceedings and the Court is satisfied that the person may be able to
prove facts relevant to the proceedings that have not been or may not
be, but ought to be, made known to the Court, the Court may, at any
time before the proceedings are finally disposed of, make an order entitling
that person to intervene in the proceedings.
contd
• Where an intervention takes place after a decree nisi has been made and it is
proved that the petitioner has been guilty of collusion with intent to
cause a perversion of justice or that material facts have not been brought
before the Court, the Court may rescind the decree.
• Section 46 of the Matrimonial Causes Act
RIGHTS OF INTERVENOR
• A person intervening shall be deemed to be a party in the proceedings with all the
rights, duties and liabilities of a party.
• Where the intervener joins after a decree of dissolution of marriage has been made
but has not become absolute, and shows cause why the decree should not be made
absolute on account of material facts not having been brought before the Court, the
Court may rescind the decree, require further inquiry, or otherwise deal with the
case as it thinks fit.
• Section 83 of the Matrimonial Causes Act
• Section 45 of the Matrimonial Causes Act
contd
• Where a decree nisi has been made but not become absolute the Court may,
on the application of any person who is not a party to the proceedings, if it
is satisfied that there has been a miscarriage of justice by reason of fraud,
perjury, suppression of evidence or any other circumstances, rescind the
decree and, if it thinks fit, order that the proceedings be reheard.
MISCARRIAGE OF JUSTICE BY REASON OF FRAUD,
PERJURY, SUPPRESSION OF EVIDENCE OR OF ANY
OTHER CIRCUMSTANCES
• Where a decree nisi has been made, but has not become absolute, the Court
may, on the application of a party to the proceedings or on the intervention
of the Attorney-General, if it is satisfied that there has been a miscarriage of
justice by reason of fraud, perjury, suppression of evidence or of any other
circumstances, rescind the decree and, if it thinks fit, order the rehearing of
the proceedings.
RESPONDENT ON TWO YEAR
SEPARATION WITH CONSENT MAY
APPLY FOR RESCISSION
• Where a decree has been made but not become absolute in any case where
the petitioner in support of the petitioner's petition relied only on the fact of
two years' separation coupled with the respondent's consent to a decree
being granted and no other fact, the Court may, on an application made by
the respondent at anytime before the decree is made absolute, rescind the
decree if it is satisfied that the petitioner misled the respondent, whether
intentionally or unintentionally, about any matter which the respondent took
into account in deciding to consent.
• Section 49 Matrimonial Causes Act
PARTIES RECONCILING
• Where a decree nisi has been made in proceedings for a decree of dissolution
of marriage, the Court may, at any time before the decree becomes absolute,
upon the application of either of the parties to the marriage, rescind the
decree if the Court is satisfied that the parties have become reconciled.
Collusion with intent to cause a perversion of
justice
• Where an intervention takes place after a decree nisi has been made and it is
proved that the petitioner has been guilty of collusion with intent to cause a
perversion of justice or that material facts have not been brought before the
Court, the Court may rescind the decree.
• Section 80(1) Matrimonial Causes Act
• Section 46 of the Matrimonial Causes Act
Financial relief
• Any party to a marriage may apply for
maintenance pending suit
• Maintenance pending suit lasts from date of
commencement of suit to conclusion
Consideration for financial relief
• (a) the income, earning capacity and other financial
resources which each of the parties to the marriage has
or is likely to have in the foreseeable future;
• (b) the financial needs, obligations and responsibilities
which each of the parties to the marriage has or is likely
to have in the foreseeable future;
Considerations
• (c) the standard of living enjoyed by the family
before the breakdown of the marriage;
• (d) the age of each party to the marriage and the
duration of the marriage;
• (e) any physical or mental disability of either of
the parties to the marriage; (
Considerations
• f) the contributions made by each of the
parties to the welfare of the family,
including any contribution made by
looking after the home or caring for the
family;.
Considerations cond
• (g) in the case of proceedings for divorce or
nullity of marriage, the value to either of the
parties to the marriage of any benefit, such as
a pension, which as a result of the dissolution
or annulment of the marriage, that party will
lose the chance of acquiring
Consideration contd
• In making an order, the Court shall seek to place the
parties, so far as it is practicable and just to do so, having
regard to their conduct, in the financial position in which
they would have been if the marriage had not broken
down and each had properly discharged their financial
obligations and responsibilities towards the other.
Consideration relating to children
• (a) the financial needs of the child;
• (b) the income, earning capacity, if
any, properly and other financial
resources of the child;
Continued
• (c)
any physical or mental disability of the child;
• (d) the standard of living enjoyed by the family before
the breakdown of the marriage; and
• (e) the manner in which the child was being and in
which the parties to the marriage expected the child to
be educated and trained
Contd
• In exercising its powers under this section the Court shall
seek to place the child, so far as it is practicable and just
to do so in the financial position in which the child
would have been if the marriage had not broken
down and each of those parties had properly discharged
their financial obligations and responsibilities towards the
child.
Maintenance for child whose not the
respondents
Courts considerations
• (a) to whether that party had assumed any responsibility
for the child's maintenance and, if so, to the extent to
which, and the basis upon which, that party assumed
such responsibility and to the length of time for which
that party discharged such responsibility;
Contd
• (b) to whether in assuming and discharging
such responsibility that party did so knowing
that the child was not his or her own; and
• (c) to the ability of any other person to
maintain the child
Periodical payments
• (a) in the case of a periodical payments order, the term shall begin
not earlier than the date of the making of an application for the
order, and shall be so defined as not to extend beyond the death
of either of the parties to the marriage or, where the order is
made on or after the grant of a decree of divorce or nullity of
marriage, the remarriage of the party in whose favour the order is
made; and
Periodical payments contd
• b) in the case of a secured periodical payments order, the
term shall begin not earlier than the date of the making
of an application for the order, and shall be so defined as
not to extend beyond the death or, where the order is
made on or after the grant of such a decree, the
remarriage of the party in whose favour the order is
made.
EFFECT OF REMARRIAGE
• Maintenance order shall cease to have effect on the
remarriage of that party, except in relation to any
arrears due under it on the date of the remarriage. (s
59(2)
Effect of remarriage contd
• After the grant of a decree dissolving or annulling a
marriage if either party to that marriage remarries, that
party shall not be entitled to apply, by reference to the
grant of that decree, for a financial provision order in the
party's favour, or for a property adjustment order, against
the other party to that marriage
Children above 21
• No financial provision shall be made in favour of a child who has attained
the age of twenty-one unless:
• (a) the child is, or will be, or if an order were made without complying with
those provisions would be receiving instruction at an educational
establishment or undergoing training for a trade, profession or vocation,
whether or not the child is also, or will also be, in gainful employment; or (b)
there are special circumstances which justify the making of an order without
complying with either or both of those provisions.
No maintenance after death
• Any periodical payments order in favour of a child
shall, notwithstanding anything in the order, cease
to have effect on the death of the person liable to
make the payments under the order, except in
relation to any arrears due under the order on the
date of the death. 60
PRESUMPTION OF DEATH AND
DISSOLUTION OF MARRIAGE
• 24. (1) Any married person who alleges that reasonable
grounds exist for supposing that the other party to the
marriage is dead may present a petition to the Court to
have it presumed that the other party is dead and to have
the marriage dissolved, and the Court, if satisfied that
such reasonable grounds exist, may make a decree of
presumption of death and dissolution of the marriage.
cond
• (2) In such proceedings the fact that for a period of
seven years or upwards the other party to the marriage
has been continually absent from the petitioner, and the
petitioner has no reason to believe that the party has been
living within that time, shall be evidence that he or she is
dead until the contrary is proved
Matrimonial Injunction
• 101. (1) Without prejudice to any other powers of the Court,
the Court may, upon application made by either party to the
marriage whether or not an application has been made by
either party for any other relief under this Act, grant an
injunction or other order, as the case may be—
• (a) for the personal protection of a party to the marriage or
of any child of the marriage;
Injunction cont
• (b) restraining a party to the marriage from entering or
remaining in the matrimonial home or the premises in
which the other party to the marriage resides,
Injunction contd
• or restraining a party to the marriage from
entering or remaining in a specified area,
being an area in which the matrimonial home
is, or which is the location of the premises in
which the other party to the marriage resides;
Injunction contd
• (c) restraining a party to the marriage from entering
the place of work of the other party to the
marriage or restraining a party to the marriage
from entering the place of work or the place of
education of any child of the marriage;
Injunction contd
• (d) in
relation to the property of a party to the
marriage; or
• (e) relating to the use or occupancy of the
matrimonial home.
HIGH COURT ACT
Matrimonial injunction
• Order 27 (7) of the High Court Rules reads as follows
• Without prejudice to the provisions of any other rule, the Court on an
application of a party to a marriage shall have jurisdiction to grant an
injunction containing one or more of the following provisions namely
• A provision restraining the other party to a marriage from molesting the
applicant or
Cont d
• A provision restraining the other party from molesting a child living with the
applicant whether or not any other relief is sought in the proceedings
• The provisions of subrule 1 shall apply to a man and woman who are living
with each other in the same household as husband and wife as it applies to
the parties to a marriage and any reference to a marital home shall be
construed accordingly
APPLICATION OF THE MATRIMONIAL
CAUSES ACT AND THE HIGH COURT ACT
• The provision under the Matrimonial Causes Act applies to those married
under the Marriage Act and those marriages recognized under the
Matrimonial Causes Act
• Section 101 of the Matrimonial Causes Act does not apply to those married
under customary law.
• The provision under the High Court Act is wider and applies to any legally
recognized marriage in the country.
contd
• The provision under the High court act goes further to protect a man and
woman living together.
• The application for Matrimonial injunction under the two acts can be
standalone applications which means the it can stand whether or not any
other relief is sought. Where this is the position, the application is made by
way of Originating Summons and Supporting Affidavit
WILFUL NEGLECT TO MAINTAIN
• An application for maintenance citing Wilful Neglect to maintain is only used
by parties to a marriage recognized under the Matrimonial Causes Act. The
marriages recognized under the Matrimonial Causes Act are marriages
solemnised in accordance with the Marriage Act or the law of a foreign state
and not marriages contracted in accordance with customary law. Applications
for this maintenance can only be made in the High Court. This section
applies to any child of the family for whose maintenance it is reasonable in
all the circumstances to expect the respondent to make a proper contribution
Section 4 of the matrimonial Causes Act
contd
• 58. (1) Either party to a marriage may apply to the Court for an order under
this section on the ground that the Respondent
• (a) being the husband, has wilfully neglected
•
(i) to provide reasonable maintenance for the applicant; or
• (ii) to provide or to make a proper contribution towards, reasonable
maintenance for any child of the family to whom this section applies; or
contd
• (b) being the wife, has wilfully neglected to provide, or to make a proper
contribution towards, reasonable maintenance—
• (i) for the applicant in a case where, by reason of the impairment of the applicant's
earning capacity through age, illness or disability of mind or body, having regard to
any resources of the applicant and the respondent respectively which are, or should
properly be made, available for the purpose, it is reasonable in all the circumstances
to expect the respondent so to provide or contribute;
•
or (ii) for any child of the family to whom this section applies
Making the application
• The application is made using Originating Summons plus supporting
affidavit
• Inter Parte Originating Summons from the High Court Act can be used in
this application
Note on heading
• Both headings are acceptable
• Application could be in sub court or high court
•
Convention on the
rights of a child
30/06/2019
Convention on the rights of a child
•
•
•
•
•
Signed 1990 ratified 1991
Best interest of a child is paramount
A child means every human being under the age of eighteen years.
Every child has the inherent right to life.
Every child shall have the right from birth to a name, the right to acquire a
nationality, and the right to know and be cared for by his parents
contd
• Every child has the right to preservation of his or
her identity.
• Every child who is separated from his parents has
the right to maintain personal relations and
direct contact with both parents on a regular basis,
except if it is contrary to the child's best interests.
contd
• Every child has the right to leave any country,
including their own.
• Every child has the right to express his/her own
views freely in all matters affecting them
contd
• Every child has the right to freedom of expression.
• Every child has the right to freedom of thought,
conscience and religion.
contd
• Every child has the right to freedom of association and to
freedom of peaceful assembly.
• Every child has the right to privacy.
• Every child has the right to protection of the law in case of
interference or attacks on said privacy.
cond
• Every child has the right to access information and material from a
diversity of national and international sources, especially those aimed at the
promotion of his/her social, spiritual and moral will-being and physical and
mental health.
• Children of working parents have the right to benefit from child-care
services and facilities for which they are eligible.
cond
• Every child has the right to protection from all forms of
abuse, physically or mentally.
• Every child temporarily or permanently deprived of his/her
own family environment has the right to special protection
and assistance provided by the state.
contd
• Every child who is seeking refugee status has the right to receive
appropriate
protection
and
humanitarian
assistance.
• Every mentally or physically disabled child has the right to enjoy
a full and decent life, in conditions which ensure dignity and
promote self-reliance.
cond
• Every child has the right to the highest attainable standard of health and
to facilities for the treatment of illness and the rehabilitation of health.
• Every child who has been "placed" by the competent authorities for the
purposes of care has the right to a periodic review of the treatment provided
the child and all other circumstances relevant to his/her placement.
contd
• Every child has the right to benefit from social
security, including social insurance.
• Every child has the right to a standard of living
adequate for the child's physical, mental, spiritual,
moral
and
social
development..
cond
• Neither capital punishment nor life imprisonment
will be imposed for offenses committed by persons below
18
years
of
age.
• Every child has the right to protection during times of
war.
cond
• Every child has the right to education.
• Every child has the right to enjoy his/her own
culture, to profess and practice his/her own religion
and to use his/her own language.
contd
• Every child has the right to engage in play,
recreational activities, and to participate freely in
cultural life and the arts.
• Every child has the right to be protected from
economic exploitation.
contd
Every child has the right to be protected from the illicit use
of narcotic drugs, and from being used in the illicit
production and trafficking of such substances.
Every child has the right to be protected from all forms of
sexual exploitation and sexual abuse.
contd
• Every child alleged as or accused of having
infringed the penal law has the right to be
presumed innocent until proven guilty.
Every child has the right to prompt access to
legal and other assistance