Unit 2
INTRODUCTION TO FAMILY LAW
The Legal Framework
The Constitution of the Republic of Zambia, Chapter 1 of the Laws of Zambia and the
Marriage Act Chapter 50, provide the primary legal systems of the laws of marriage. The
two statutes acknowledge civil law marriages and customary law marriages. This is in
accordance with the dual legal system that Zambia inherited at Independence on 24
October 1964.
The dualism comprises civil law and customary law which are
administered under parallel legal systems. Both customary and civil laws have provided
judicial precedents which are an additional source of law.
Aim
The aim of this unit is to introduce you to the laws governing marriages and the structures
of the system in which the laws operate.
Topic 1: CIVIL LAWS OF MARRIAGE
Civil law is based on received English law by virtue of the English Law (Extent of
Application) Act, Chapter 11 of the Laws of Zambia, which makes common law, the
doctrine of equity, and English statutes up to 17 August 1911 (date when Northern
Rhodesia Order in Council commenced)1 applicable to Zambia as well as statutes enacted
by the Republican Parliament. Section 2 of Chapter 11 provides as follows:
Subject to the provisions of the Constitution of Zambia and to any other written
law
(a)
the common law; and
(b)
the doctrine of equity; and
(c)
the statutes which were in force in England on the 17th August 1911 (being
the commencement of the Northern Rhodesia Order in Council, 1911);
and
1 Sovereign Republic of Zambia, per section 3 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia.
5
(d)
any statutes of later date than that mentioned in paragraph (c) in force in
England, now applied to the Republic, or which hereafter shall be applied
thereto by any Act or otherwise shall be in force in the Republic¹.
The Act spelt out therefore, the extent to which the Laws of England would apply to
Zambia for the period between 17 August 1911 and 24 October 1964. Statutory laws
contained in Orders-in-Council, Ordinances and British Statutes specifically adopted,
applied to Zambia. Chapter 10 of the Laws of Zambia is the British Acts Extention Act
set for the Acts of the Parliament of the United Kingdom that are deemed to be of full
force and effect within Zambia unless repealed and replaced by the Zambian Parliament.
The Subordinate Courts Act, Chapter 28 of the Laws of Zambia also extends the
jurisdiction of a Subordinate Court in matrimonial matters to make any order which may
be made by a court of summary jurisdiction under the Summary Jurisdiction (Separation
and Maintenance) Acts 1895 to 1925 and section 11 of the Matrimonial Causes Act 1937
of the United Kingdom.
British statutes are also imported into Zambia by the High Court Act, Chapter 27 of the
Laws of Zambia, which gives the Court in divorce and matrimonial causes and matters,
jurisdiction in substantial conformity with the law and practice for the time being in force
in England
Section 12 of the High Court Act provides that
(1)
All statutes of the Parliament of the United Kingdom applied to Zambia shall
be in force so far only as the limits of the local jurisdiction and local
circumstances permit.
(2)
For the purpose of facilitating the application of the statutes referred to in
subsection (1) it shall be lawful for the Court to construe the same with such
verbal alterations, not affecting the substance, as may be necessary to make
the same applicable to the proceedings before the Court.
6
Much as the intention of Parliament was not to adopt blindly British statutes, it is
inconceivable to what extent courts would apply them so far only as the limits of the local
circumstances would permit without affecting the substance because local circumstances
are far too different and divergent.
Topic 2:
CUSTOMARY LAWS OF MARRIAGE
Customary law comprises local customs and traditions of indigenous peoples and forms
the other system in the dual legal system of Zambia. In the pre-independence period,
customary law was administered by traditional courts (of chiefs and senior head persons
of villages) and by native courts.
The traditional courts still perform judicial and
administrative functions while Native Courts have been replaced by local courts and are
governed by the Local Courts Act, Chapter 29 of the Laws of Zambia. By section 68, the
Act provides that the Chief Justice must formulate the rules of practice and procedure in
the administration of customary laws. This has however not been done, and is largely
responsible for outcomes like Kafirsam v The People2. Customary law is unwritten and
is orally passed from one generation to the next, and varies from locality to locality.
Zambia has 73 ethnic groups, each of which practices its own customs and traditions,
although there are many similarities mainly because of intermarriages and other forms of
interaction.
Chiefs and head persons are traditional rulers and custodians of customary laws. Unlike
Local Court justices who on the other hand, are lay people appointed by the Judicial
Service Commission on the recommendation of Chiefs and other people of influence in
society for their knowledge of customary law, and experience gained in working for local
courts, either as interpreters or other experience in the civil service. Local court Justices
may sit with assessors, and do so particularly in cases of intermarriage where laws are
usually in conflict. While there is no appeal from a traditional court, appeal from a Local
Court lies to the Subordinate Court, and from there to the High Court and Supreme Court.
Section 34 of the High Court Act, empowers the Court to call chiefs and other people as
2
(1968) ZR 147. See page 18 for the judgment.
7
witnesses, for their special knowledge of customary law. The chiefs and such persons
may also sit as assessors3 with a High Court judge. The Court may also consult books or
publications considered to be an authority on African customary law. The statutory
provision is intended to facilitate dispensation of substantial justice in matters where
members of the bench are largely ignorant of the various customary laws and seem to
have little legal interest in them.
In Martha Mwiya v Alex Mwiya4, a Mulobezi Local Court in Shesheke District, in the
Western Province of Zambia: the parties were married under customary law. Martha
Mwiya was divorced under the customary law governing the marriage, which did not
entitle a wife on being divorced, to property acquired during the marriage, even if she
helped acquire it. The parties were a modern couple in spite of the law governing their
marriage, and Martha Mwiya was of the opinion that as she had contributed to the
acquisition of property she was entitled to an equitable share. She also wished to be
maintained financially. Both these demands are available to a spouse in a civil marriage.
The local court decided that under Lozi customary laws, a divorced wife was neither
entitled to a share of the property nor to maintenance.
Martha Mwiya appealed to the
Sesheke Subordinate Court, where the decision of the Local Court was upheld. She
appealed to the High Court. Mr Justice Ernest Sakala, (now Chief Justice of Zambia) sat
with two Lozi assessors who unanimously agreed that there is no Lozi custom which
entitles a divorced wife to maintenance or share of the property, even if she helped to
acquire it.
Topic 3: THE PRESENT STATE OF THE LAW
Family law in Zambia as elsewhere is undergoing change as a result of social economic
and other development changes. A major contributing fact is intermarriages, not only
amongst the indigenous ethnic groups of Zambia, but also between them and others from
other countries.
3
4
Section 34 of the High Court Act, Cap 27.
(1977) ZR 113.
8
The other factor is the influence of the received law whereby people tend to blend
customary law practices and civil law requirements into one form of marriage. This has
often resulted in conflict of laws which local court justices resolve according to their own
interpretation without applying any real customary law rule. There is a modern trend to
assume “living” customary law to suit modern life, and this has resulted in uncertainty or
confusion about the estate of customary laws. Thus customary law applied by local
courts is at variance with that applied by traditional courts of chiefs and headmen. The
latter apply actual customary law as it has existed from time immemorial mainly because
in villages there is little interaction with other cultures and there are fewer intermarriages,
whereas in urban and peri urban areas, the socio economic and inter cultural dynamics
have distorted the authenticity of customary laws and practices.
Whereas the fact of a dual legal system has posed problems of the choice of personal
laws to apply to people’s lives, another problem is the reliance on received laws
especially those contained in the English statutes. Zambia has a Marriage Act, but does
not have a divorce statute of her own, and looks to England for the laws.
The Marriage Act is confined to regulations and formalities for contracting a valid civil
marriage. It does not deal with divorce and other domestic relations matters such as
custody and maintenance or financial provision for the spouse or child of the family, or
with settlement of property after divorce.
For these matters, Zambia applies the
Matrimonial Causes Act of England, the current Act in force in Zambia being the 1973
Act, (the MCA 73), although in the UK the Act has been revised, some provisions
repealed and replaced and also consolidated with other divorce laws such as the Divorce
Reform Act 1969 and the MCA 1958.
This has posed a serious problem in the nation because whereas the Marriage Act
regulates marriages, courts look to another country, England, for divorce and other
domestic relations. This requires that the laws of marriage should conform to those in
force in that other country, for them to be in harmony with that country’s divorce laws.
9
There are vast changes in the laws of marriage in England from whence our marriage law
came in 1963, when civil marriages became available to Africans; and there are
enormous rapid developments in the divorce laws in England not matched at all with the
Marriage laws in Zambia which have remained static since 1963. This has created
conflict largely because the Zambian society has values and other conditions which are
totally different and rooted in tradition than values and conditions obtaining in the U.K.
It has also created uncertainty about which British statutes and precedent to follow.
Professor Himoonga writes that in practice courts apply whatever English law is best
known to them5; for instance some apply the MCA 1958, or Divorce Reform Act 1969,
instead of the MCA 73, leading to not only the application of the wrong law by the
courts, but to the application by the various judges of different legal solutions to similar
situations.
Included in this category are the Applied Acts of the Legislature of the Federation of
Rhodesia and Nyasaland which are made applicable to Zambia by virtue of section 2 of
the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia. that
statute was enacted at independence in 1964 for the purpose, among others, of amending
and consolidating the law relating to the construction, application and interpretation of
written law. Section 2 reads as follows:
2 (1) The provisions of this Act shall apply to every written law passed or made
“before or
after the commencement, unless a contrary intention appears in this Act or in
the written law
concerned.
(2) The provisions of this Act shall apply to this Act as they apply to an Act
passed after the
commencement.
5
C. Himoonga Zambia in R Blanpain (ed) International Encyclopaedia of Laws, Kluwer Law International
(2002) p36.
10
The other sources of laws of Zambia, are the statutes in force in England on 17th August
1911, or those which are specifically made applicable to Zambia after that date, by an
enactment of the Parliament of Zambia.
There is also the British Acts Extension Act Chapter 10 of the Laws of Zambia which has
listed English Acts which shall apply to Zambia, as well as the Subordinate Courts Act,
Chapter 28 which imports provisions of the Summary Jurisdiction (Separation and
Maintenance) Acts 1895 – 1925 and section 11 of the Matrimonial Causes Act of 1937,
of the United Kingdom. Section 20 (1) (d) (ii) reads:
Any reference to the term “married woman” or “wife” in the Summary
Jurisdiction (Separation and Maintenance) Acts 1895 to 1925, Matrimonial
Causes Act 1937 and Married Women Maintenance Act 1920 shall be read as a
reference to a “spouse”.
The High Court Act, Chapter 27 of the laws of Zambia provides for the reception of yet
another body of English law when it provides in sections 11 and 12 that:
11.
(1)
The jurisdiction of the Court in divorce and matrimonial causes and
matters shall,
subject to this Act and any rules of Court, be exercised in substantial conformity with the law and
practice for the time being in force in England
(2)
The law and practice for the time being in force for the Probate, Divorce and Admiralty
Divisions of the High Court of Justice in England with respect to the Queen’s Proctor
shall, subject to rules of Court and to any rules made under the provisions of the Colonial
and Other Territories (Divorce Jurisdiction) Acts, 1926 to 1950, of the United Kingdom,
apply to the Attorney-General.
(3)
The jurisdiction of the Court in probate causes and matters shall, subject to this Act and
any rules of Court, be exercised in substantial conformity with the law and practice in
force in England on the 17th August, a1911 (being the commencement of the Northern
Rhodesia Order in Council, 1911). 1837 English Act on wills
11
(4)
No probate of a will or letters of administration granted prior to the
commencement of this Act to any person shall be invalid by reasons only that the right to
the grant was determined in accordance with any law in force in England after the 17 th
August, 1911.
(5)
No suit or other legal proceedings shall be instituted against any person by reason only
that the deceased person’s estate was administered in accordance with the law in force in
England after the 17th August, 1911.
12. (1)
All statutes of the parliament of the United Kingdom applied to Zambia shall be in force
so far only as the limits of the local jurisdiction and local circumstances permit.
(2)
For the purpose of facilitating the application of the statutes referred to in subsection (1),
it shall be lawful for the Court to construe the same with such verbal alterations, not
affecting the substance, as may be necessary to make the same applicable to the
proceedings before the Court.
There appears to be no judicial interpretation of these provisions which imply that
Zambian Courts should apply the law and practice for the time being in force in England
regardless of unsuitability to Zambian values and local circumstances.
The most important law on divorce and other domestic relations in Zambia is the
Matrimonial Causes Act 1973 together with the Matrimonial Causes Rules 1977, of
England, made applicable to Zambia by virtue of the foregoing provisions.
The
Matrimonial Causes Act, MCA 73 provides for divorce, nullity of marriage, separation,
property settlement, ancillary relief and custody of children.
A civil marriage is, therefore, one that is governed by the Marriage Act, with respect to
legal requirements for its validity, and by the Matrimonial Causes Act 1973 of England
and the Matrimonial Causes Rules 1977 for dissolution. There is also the Married
Women’s Property Act 1882 which gives a woman married under statute the right to seek
redress through criminal proceedings for property which she owns separately and solely
from her husband. This Act also makes one spouse competent to give evidence against
12
the other, regardless of the general rule of common law which makes either an
incompetent witness against the other.
Thus sources of civil law of Zambia include both Zambian and English statutes on
marriage, Zambian and British cases and text books, legal publications and materials
including those from other common law jurisdiction. Common law jurisdictions apply
common approaches to legal problems and processes of reaching judicial decisions, and
their main feature is reliance on precedent.
It is important to conclude this part of the chapter by stating that too large a body of
English statutes are of application to Zambia. One has to go through lots of laws and
provisions, statutory instruments and judicial interpretations and practice directions to
establish which English laws are in force in Zambia at any one time. It is also necessary
to state that family law is one of the branches of law undergoing rapid change and
constant revision in England to meet ever changing social and economic conditions.
Similar change though not at the same pace is taking place in Zambia. It is for this
reason that the laws of marriage, divorce and domestic relations be reviewed and enacted
to suit local conditions and circumstances. It is forty years since independence in 1964
and Zambia has built up her own case law and materials, be it that the Zambian courts
have been greatly influenced by British cases, precedent and statute, and by
commonwealth laws. It is time Zambia did away with a dual legal system. A single legal
system means harmonisation of local enactments and laws and replacement of archaic
English statutes, of up to 17 August 1911, most of which long ceased to be law in
England, and no longer relevant to Zambia. Zambian legal practitioners know the gaps in
local legislation, for Practice Direction provides that where local statutes leave a lacuna,
resort must be had to British statutes. Zambia has to a very great extent used the White
Book (Rules of the Supreme Court of England).but the Practice Direction of 2001 has
directed that there shall be no such use of the White Book after the 1999 Edition. It is
envisaged that this reliance shall in the next five years be replaced by local rules.
13
Other Cases
TULLY v TULLY (1965) Z.R 165 (H.C.)
NKOMO v TSHILL (1973) ZR 102 (H.C)
Questions for Discussion
1. What is a dual legal system?
2. Are Zambian Courts bound by decisions of the Courts of England?
3. What is the difference between an ordinary Ordinance and an Act of Parliament
14