AN ANALYSIS OF THE CONFLICT BETWEEN CUSTOMARY AND
CIVIL LAW MARRIARIAGES, A ZAMBIAN CASE STUDY.
BY
AUDREY TRERUKAI CHISENGALUMBWE
Student Number: 1105131212
Class
: 2023
Supervisor
: Mr Makesa
A Dissertation submitted to the Faculty of Law of the Livingstone International University of
Tourism Excellence and Business Management in partial fulfilment of the requirements for
the award of the Degree of Bachelors of Laws (LLB).
DECLARATION
I, AUDREY TRERUKAI CHISENGALUMBWE, do hereby declare that this dissertation is
my authentic work, and to the best of my knowledge, information and belief, no similar piece
of work has previously been produced at LIUTEBM University Zambia or any other institution
for the award of Bachelor of Laws Degree. All other works in this essay have been duly
acknowledged.
Signature………………………………….
Date……………………………………..
i
DEDICATION
I dedicate this work to the almighty God who in his power has seen me through and provided
strength for me to successfully complete this research. My family, friends and relatives in all
circles of life. Your prayers, financial support and encouragement throughout this journey of
studying law is highly appreciated and will never be forgotten.
To my lectures Mr Makesa and all law faculty lecturers at LIUTEBM university. Your tireless
guidance and teachings have made me reach this far, I shall forever be grateful for all you have
made me become in life.
To you all I say thank you with a heart full of appreciation.
ii
ACKNOWLEGEMENTS
Firstly i would like to thank the Lord God almighty for the grace, gift of life, wisdom and the
good people that he has surrounded me with who have positively helped me spiritually,
mentally and financially so as to accomplish this research work. Secondly my parents for being
there for me even when i felt like giving up they have always been my source of strength.
Wonderful dedicated and supportive lecturers for the tireless guidance and commitment
towards this work. I thank Mr Makesa for encouraging me through this journey not to give up
on myself and spiritual life.
Once more these people’s individual contributions, forbearance, encouragement and ingenuity
shall forever momentously be cherished. Their constructive criticisms also led to this thesis to
have concrete form and direction. Unwittingly, their priceless efforts are but a reward to the
general society. And all my friends (Loveness Mwamulimba) to you all I say thank you very
much for your understanding, encouragement and support.
iii
ABSTRACT
This Document emerged from a study that focused on analyzing the conflict between
customary and civil marriages in Zambia. The study was guided by communalism theory which
places marriages and its institutions at the center of the “togetherness principle”, a philosophy
that is highly practiced and respected in most African communities1. The study was guided by
the following objectives; (a) the background of marriages in Zambia, (b) the conflict between
customary and civil marriages in Zambia and (c) the way forward in harmonizing customary
and civil law marriages. Qualitative mode of inquiry as discussed by (Gupta & Gupta, 2011)
was used to collect data through interviews and focus group discussions. The target population
were traditional Marriage Counsellors, village headmen, married couples, local courts officials,
religious leaders and church marriage counselors among others. Couples and traditional
marriage counsellors were randomly selected using a simple random sampling technique. The
qualitative data gathered from respondents was analyzed according to the emerging themes.
The study revealed that the role of traditional marriage counsellors was to help spouses
understand each other on various domestic matters, encourage openness in marriage, promote
mutual relationships and to unit families. There were also factors that contributed to increased
divorce cases such as lack of counselling services both premarital and marital counselling
services, childlessness, beer drinking, unfaithfulness and family as well as friends’ influences.
It was also noted that areas in which traditional marriage counsellors offered pre-marital and
marital counselling included couples’ love for each other, respect for family members,
faithfulness and infidelity, proper communication, conflict resolutions, maturity, and sexual
satisfaction. The study recommended that married couples should involve marriage counsellors
to help strengthen their marriages.
Keywords: marriage, customary marriage, civil marriage and conflict
1
Adamczak, B. (2017). Communism fir Kids. Translated by Jacob Blumenfeld and Sophie Lewis. MIT Press
iv
TABLE OF CONTENTS
Declaration…………………………………………………………………………………..i
Dedication…………………………………………………………………………………...ii
Acknowledgement……………………………………………………………………….....iii
Abstract……………………………………………………………………………………..iv
Table of Contents……………………………………………………………………………v
CHAPTER ONE: INTRODUCTION
1.0 Introduction………………………………………………………………………………1
1.1 General background against matrimonial laws…………..……………………………....2
1.2 Statement of problem…………………………………………………………………….3
1.3 Objectives………………………………………………………………………………...4
1.4 Research questions……………………………………………………………………….4
1.5 Purpose of study……………..…………………………………………………………..4
1.6 Significance of study…………………………………………………………………….5
1.7 Practical Importance of the Study………………………………………………………..5
1.8 Limitation of the study……………………………………………………………………6
1.9 Chapter one summary…………………………………………………………………….6
CHAPTER TWO: LITERATURE REVIEW
2.0 Introduction……………………………………………………………………………….8
2.1 Theoretical Framework…………………………………………………………………...8
2.2 Framework of Customary Law Marriages ……………………………………………...10
2.3 Chapter two summary……………………………………………………………………17
CHAPTER THREE: METHODOLOGY
3.0 Introduction ……………………………………………………………………………..18
3.1 Research Design………………………………………………………………………....18
3.2 Study areas, sampling and sample size…………………………………………..……...18
3.3 Methodologies…………………………………………………………………….……..19
3.4 Data collection…………………………………………………………………………...20
3.5 Interview in depth……………………………………..…………………………………21
3.6 Chapter three summary………………………………………………………………….23
v
CHAPTER FOUR: RESULTS, INTERPRETATION OF FINDINGS & DISCUSSION
4.0 Introduction……………………………………………………………………..………24
4.1 Presentation of Data .........................................................................................................24
4.9 Chapter four summary………………….……………………………………………..…48
CHAPTER FIVE: SUMMARY, CONCLUSIONS AND RECOMMENDATION
5.0 Conclusion ………..…………………………………………………………………….49
5.1 Recommendations………………………………………………………………………50
Bibliography………………………………………………………………………………..51
Appendix…….………………………………………………………………………….....53
vi
TABLE OF STATUTES
Gender based violence act
High Court Act Cap 27
Local Court Act cap 29
Marriage Act cap 50
Matrimonial Causes Act
Matrimonial proceeding and property Act of 2020
Subordinate Court Act cap 28
vii
CHAPTER ONE
INTRODUCTION
1.0 INTRODUCTION
Marriage is one important word that many people have different definitions in the abstract
sense to mean a social institution, apart from its abstract meaning as a social institution,
marriage has different meanings and these meanings are; the ceremony by which a man and a
woman become husband and wife or the act of marrying and the relationship existing between
husband and wife2. When two people exchange vows and promise to be there for one another
providing support in times of trouble and misfortunes, they promise to be with each other
regardless of the situation that may arise, but the question that one may ask is how ready these
people to keep their vows are?
In the bible God Clearly states that ‘what God has put together let no man put asunder’ hence
by doing so the two are bound together and no one but God himself can separate them 3 in the
same line lord penziance in the case of HYDE v HYDE defined marriage as a voluntary union
for life between one man and one woman in exclusion of others 4. However, of all abstract
and other meanings of the word marriage, this definition has proven to be the most definite
definition of marriage applied by the courts of laws in different African countries including
Zambia.
To this effect most pastors and other marriage officiating officers ask over and over again if
the two parties standing before the alter or before them are ready for the consequences of their
actions bearing in mind that once the vows have been exchanged, they cannot be broken, no
matter what the circumstances may be.
However, in African societies there is a belief that a man’s sexual masquerade can never lead
to divorce, but an adulterous woman cannot go unpunished. This is evidenced by the number
of extra marital affairs that married men engage in and how they try to justify them, though
most of them lead to divorce5. In the case of Muwale v. Muwale6 the petitioner was married to
the respondent who was four years younger than him and envisaged a marriage of unending
bliss, without knowing that his wife was a drunkard. The wife due to her excessive drinking
started spending
2
Bomeley PM (2017) family law (4th ed)Butterworth,p11
Ndulo M (2014) law in Zambia east African publishing house, Lusaka p142
4
Lord penziznce (Hyde vhyde)
5
Colso E (2022) Marriage and Family among the Tong of Northern Rhodesia, publishing house, Manchester
p55
6
(1990)5 NLRL 298
3
1
nights away from home and second time she got pregnant decided to hide the pregnancy from
the husband as she was not sure if the husband was responsible, the court granted him divorce
and also granted him custody of the child and won the custody of all the remaining children.
1.1 GENERAL BACKGROUND AGAINST WHICH MATRIMONIAL LAWS CAN BE
SEEN IN ZAMBIA
Family law in Zambia just as in other countries is undergoing changes so as to suit social,
economic and other developmental changes. A major contributing factor is intermarriages, not
only amongst indigenous Zambians but also between others from other countries.
The other factor is the influence of received law whereby people tend to blend customary law
practices with 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 the real customary law rules. There is a modern trend to assume customary law to suit
modern life and this has resulted in uncertainty or confusion about the beginning of customary
laws. Thus, to say customary law applied by local courts is at variance with that applied by
traditional courts of chiefs and headmen. They apply actual customary law as it existed from
time immemorial mainly because in villages there is little interaction with other cultures and
there is less intermarriage, where as in urban areas there is socio economical and inter-cultural
dynamics which have distorted the authenticity of customary laws and practices7.
Dual system has posed problems of the choice of personal laws to apply to people’s lives.
Another problem is the heavy reliance on received law especially those contained in English
statutes. Zambia has a marriage Act8 but does not have a divorce statute of her own, she looks
up to England for the laws. The marriage Act is confined to regulate and formalize matters
such as custody and maintenance of children. All other financial provisions for the spouse of
children of the family, settlement of property after divorce etc. for these matters Zambia applies
the matrimonial causes Act of England9
7
Mushota L (2015) Family law in Zambia, cases and materials, UNZA press, Lusaka p45
Cap 50 of the laws of Zambia
9
Matrimonial causes act no, 20 0f 2017
8
2
Customary law is unwritten, this fact brings problems in ascertaining its customary laws. It is
not uniformly applied in Zambia due to the fact that it varies from place to place. There is no
customary law that is prescribed for Zambia as a whole but it remains to be an important part
of the Zambian legal system as it dominates family and personal relationships. Some countries
such as Kenya and Uganda have gone as far as codifying it in an attempt to make it more fully
law10. Zambian statutory marriage is primarily governed by the marriage Act which provide
for solemnization, validation and requirements of a valid statutory marriage. Marriage under
statutory law may be terminated only by the death of one spouse and the dissolution
pronounced by a court of competent jurisdiction.
1.2 STATEMENT OF THE PROBLEM
The introduction of a dual legal system in Zambia has brought two forms of marriages which
are perceived as not placed at an equal footing, one being lower than the other, Other than being
accorded the same treatment by law in dealing with divorce.
Family law in Zambia as elsewhere is undergoing changes as a result of social, economic and
other developmental changes. A major contributing factor is intermarriages, not only among
the indigenous ethnic groups of Zambia, but between them and others from other countries.
The other factor is the influence of the received law whereby people tend to blend customary
law practices and civil law requirements into one. Hence conflict of laws which local court
justices (judges) resolve to their own interpretation without applying the real customary law
rules.
1.3 OBJECTIVES
1.3.1 GENERAL OBJECTIVE
The general objective of this study is to evaluate the efficacy of the legislative and institutional
framework customary and civil law marriages in Zambia. In doing so, the study will discuss
the concept of customary and civil law marriages in Zambia. The way forward in harmonizing
customary and civil law marriages in Zambia.
1.3.2 SPECIFIC OBJECTIVES
a) To explore the background of marriages in Zambia
10
Munalula M (2013) legal process UNZA press, Lusaka p45
3
b) To discuss the Legislative framework on marriages in Zambia
c) To explore the Conflict between customary and civil law marriages in Zambia
d) The way forward in harmonizing customary and civil law marriages in Zambia
1.4 RESEARCH QUESTIONS
The study seeks to provide specific answers to the following questions:
1. Does Zambia have the background of marriages?
2. Does Zambia have the Legislative framework on marriages?
3. What is the Conflict between customary and civil law marriages in Zambia?
4. What is the way forward in harmonizing customary and civil law marriages in Zambia?
1.5 PURPOSE OF THE STUDY
Discussing the conflict between customary and civil law marriages in Zambia. Understanding
the two forms of marriages is of great importance in the sense that both branches of marriages
are accorded distinctive treatment not only by society but by the courts of law in Zambia when
it comes to issues pertaining to divorce, this branch of law has a major impact on the physical,
emotional and general wellbeing of humans, more especially children and also goes to the root
of Zambia’s reproductive and family life.
Under both customary and statutory law there enormous social changes following the high
levels of poverty and moral decay in Zambia produced a vast increase in the number of
divorces/ the idea that the purpose of divorce was to provide a remedy available only to the
innocent spouse for a matrimonial wrong committed by the other seems to many to be an
outdated concept11. Anybody is free to contract a statutory marriage but in practice it is the
educated community that makes the most use of statutory law. The reason for this would seem
to be that they are for the most part the knowledgeable section of the community about the
existence and implication of a statutory marriage12. A sizable number of people after
independence contracting civil marriages greatly increased this is because statutory marriage
is regarded superior to customary marriages. There is also the desire for security in the part of
the woman in the sense that a statutory marriage ensures a monogamous marriage and also
ensures benefits as alimony after divorce.
11
Colson E (2012) marriage and the family among the plateau of the Tonga of Northern Rhodesia, Manchester
publishing house, Manchester p67
12
Ndulo M (2021) law in Zambia east Africa publishing house, Luasaka p144
4
1.6 SIGNIFICANCE OF THE STUDY
The significance of this study is evaluation of the inequalities existing between the two forms
of marriage namely customary and statutory marriages. Customary law is controversial in the
sense that it is not always accepted as law by jurist. Some of the reasons for this claim are the
fact that its application is limited to a particular group of people. Often it is subjected to national
law13
According the same treatment to both marriages has limitless benefits on the society of Zambia
as this protects women married under a customary marriage from being at the messy of the
man who would be in position of manipulating and abusing them both physically and
economically. The most popular idea that only church marriages are legal phases, the true
position is that one is not inferior to the other in regards to legal status as the same protection
will be given to those married under customary law when it comes to divorce.14
1.7 PRACTICAL IMPORTANCE OF THE STUDY
The practical importance of the study lies in the identification of the inequalities existing
between the two forms of marriages and the proposing change to the current status of customary
law that would make it more efficient as would be in a liberalized economy like Zambia it is
important that customary law is of immense efficacy as anything short of that would be greatly
prejudicial to its objective and therefore greatly undermine the relevance of such a law. The
British extent of application ordinance 1963 stipulates that the common law, doctrine of equity
and all statutes which were in England on the 17th august 1911 and any other statutes which
were in England were made applicable to Zambia. In the case of frank chitambala15 it was
held that law and customary law is in my view more or less in the same position as foreign law
and it must be established by an expert before court other than the native court. And this line
of thinking was adopted in kaniki v jairus16 it is against this legal background that customary
marriage should be perceived. The essence of this study is to analyze and evaluate the two
forms of marriage systems in Zambia and come up with recommendations on the laws that can
be improved in Zambia especially customary law orders to maintain the sanctity of marriages
conducted under customary law.
13
Munalula M (2013) legal process UNZA press, Lusaka p47
Allot A (2020) the future of African law, Butterworths, London p16
15
Iv NRLR, 28
16
(19670ZR, 81
14
5
1.8 LIMITATION OF THE STUDY
The study is limited to the information that the researcher was availed in the sampled area of
the research as free access to all necessary data was not given due to the security nature or
situational location of the institutions surveyed. The sample size was reduced to target the
institutional heads and heads of departments in the selected institutions under survey.
1.9 CHAPTER ONE SUMMARY
Zambia has a dual legal system of laws leading to the two types of marriages namely,
Customary and Statutory marriage. Most of the statutory laws of marriage are composed by
received laws which is in view of the colonial history, is in effect English law. The English law
of marriage is applicable to Zambia by virtue of section 11 of the high court act.17
Customary law is recognized as applicable to Zambia by virtue of section 16 of the subordinate
court act18 providing that such customary law is not repugnant to natural justice, equity or good
conscience and is not incompatible with any written law in force.
During colonial period, even though customary marriage was expressly recognized, the
colonial legislature tended to emphasize the superiority of statutory marriage over customary
marriage. For instance, in criminal law the customary spouse was not regarded as a wife for
the purpose of evidence rule19. This meant that a customary marriage spouse was not regarded
as a wife to give evidence against his or her spouse, where as a statutory law counterpart could
not be so compelled.
African marriages were not regarded as true marriages and relationships of husband and wife
which in European society constituted a marriage were not to exist in indigenous African
society. This was because of the irrational belief that colonial government created two distinct
legal systems fundamentally different in nature and the law governing them.
It is clear above that the inequalities existing of marriage under customary marriage today in
Zambia can be traced from back even before Zambia got her independence.
This research is therefore intended to give an evaluation of the sanctity of the law on marriage
under customary marriage and statutory marriage leading to divorce and to the major causes of
such divorces, and thereafter come up with a conclusion as to whether marriage under
customary law could be placed at an equal footing with marriage under the marriage act.
17
Cap 27 of the laws of Zambia
Cap 28 of the laws of Zambia
19
Ndulo, M. law in Zambia, east Africa publishing house Lusaka, 2014. P143
18
6
CHAPTER TWO
LITERATURE REVIEW
2.0 INTRODUCTION
This chapter deals with the summary of literature reviewed for this study.
2.1 THEORETICAL FRAMEWORK
Mapala (2014) conducted a study on marriages which aimed at determining the nature of
traditional marriage in relation to the marriage institutions, and some of the major findings
were that premarital counselling for Christian marriages reinforces superiority of male spouses
over females, making a woman a passive dependent in marriage.20 Similarly, Namonje (2016)
also conducted a study whose purpose was to investigate the role played by both traditional
and modern counselling services in reducing incidences of divorce among married couples in
Kabwe district in Zambia. Namonje’s study was based in urban Kabwe and looked at both
traditional and modern counselling services if they helped in reducing incidences of divorce
among married couples in the district. This study concluded that both traditional and modern
counselling strategies have the same objectives in reducing incidences of divorce in Kabwe
urban and both counselling approaches have valuable knowledge and information which can
be used in order to create a more holistic counselling approach to Kabwe urban couples. 21 A
study conducted by Chondoka (2018) basically focused on marriage counselling as a tool for
imparting traditional culture and beliefs which would assist couples not to depart from their
ancestral inclinations.22 This study raised some issues that surround marriages but did not look
at the conflict between customary and civil marriage in Zambia, to which this research is aimed
at.
Another study was conducted by Tembe (2010), in which the author cited a number of factors
that led to divorce cases among couples and these included, unfaithfulness (extra marital
affairs), lack of understanding of marriage, the quietness of the church on the issue of divorce
among its members and the community at large, abuse of women by men also caused divorce.
In addition, church members preferred to marry either by civil marriage or by customary union,
culture and traditions as it encourages men to have more lovers and the mismanagement of
20
Mapala, M. M. (2014). ‘Traditional Marriage Counsellor and HIV/AIDS: A Case Study of Alangizi National
Association Zambia,
21
Namonje, F. (2016. ‘Role of Traditional and Modern Counselling Strategies in Reducing Incidences of Divorce
Among Married Couples in Kabwe Urban, Zambia,’MA Dissertation: Zimbabwe Open University.
22
Chondoka, Y. A. (2018) Traditional Marriage in Zambia: A Study in Cultural History. Ndola: Ndola Mission
Press.
7
money further causes divorce in the communities. The findings of the study furthermore,
showed that the church to a lesser extent also contributed to causes of divorce cases by being
quiet in the issues of divorce,
lack of dating is also another cause of divorce, the abuse of the rights of women also causes
divorce, the change of roles in the family is another cause of divorce and generally divorce
among marriage couples is common among Christians and non-Christians in the community
and the societies at large. Pastors who are not doing their jobs also cause divorce, premarital
sex and children out of wedlock is another cause of divorce.23 Further, a study by Taylor (2016)
also looked at the Cause and Consequences of Divorce in Zambia and the author looked at the
Causes and Consequences of Divorce in Zambia in general and not to a specific area of Zambia
as the case of this study in which the researcher was interested in analyzing the conflict between
customary and civil marriages in Zambia. Tylor (2016) in his book, cited a number of factors
that causes divorce in marriages at the national level. The cited causes by the author included,
sexual matters broadly, such as reproduction, performance, and fidelity, infidelity and spousal
abuse.24 Similarly, Mengo Violet in the Zambia Daily Mail of 8th February, 2018, indicated
that the statistics of divorce cases in Zambia were alarming and Mengo further argued that the
main cause of divorce in Zambia were, lack of intimacy, unrealistic expectations by both
partners, abuse, extra marital affairs and unequal sexual appetite, infidelity, money issues, poor
communication.25
However, this study is not a duplicate of the studies conducted by the scholars mentioned above
and none of these scholars reached an extent of making an analysis of the conflict between
customary and civil marriages in Zambia which this study is trying to address.
2.2 FRAMEWORK OF CUSTOMARY LAW MARRIAGES
Marriage under customary law union between one man and one woman or more women and
between the woman’s or man’s families with consent of woman’s parents. Customary
marriages are marriages that comprise of the local customs and traditions of indigenous people
and form other system in a dual legal system of Zambia, customary law are administered by
traditional courts in the pre-independence period. Customary law is unwritten and is orally
passed from one generation to the next, and varies from locality to locality. Zambia has 73
23
Tambe, M.M. (2010). ‘An Investigation into the Cause of Divorce Amongst the Evangelical Church Members
in Namakgale Township,’M.A Dissertation: University of South Africa
24
Talyor, S.D. (2016). Culture and Customs of Zambia. London: Greenwood Press.
25
Mengo, V. (2018). Why many Zambia are divorcing, Zambia Daily Mail, Thursday, 8 th February
8
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.
However there is no codified to cover disputes that arise in customary law marriages, the
marriage act has however recognized marriages contracted under customary law marriages by
implication, customary law is unwritten and is orally passed from one generation to the next,
and varies from locality to locality, 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.
The practice also ensures that marriage does not take place within prohibited degrees of
marriage, or if permitted, necessary payments are made to make it possible for near relatives,
particularly cousins, to marry.
Marriage payments are an essential aspect of a valid marriage. Acceptance of the payments
made by the girl or woman’s parents signifies their consent. The marriage payments are many
and vary from one ethnic group to another. The payments are also important because they
signify a marriage relationship between the bride and the groom’s families and mutual respect
for each other.
Requirements of a valid customary marriage.
For a customary marriage to be classified as a valid marriage all these factors below should be
present; in the case of customary marriages, the factors that may affect the validity include
marital status of the woman, that of the man does not matter, consent of parents, marriage
payments and the giving away ceremony. These may take different forms but are important to
validate marriage.
1. Consummation
2. Legal significance of marriage payment
3. Capacity to contract a customary marriage
4. Marital status
5. Marriage ceremony
6. Abduction
7. Betrothal
1. Consummation
9
Consummation is the first post-marital act of intercourse between the spouses; intercourse must
be ordinary and complete, not partial and imperfect. This was held to be so by Lord Lushington
in. A-g13. In Baxter v. Baxter this definition was refined. The facts were that the husband was
not allowed by his wife to have sexual intercourse with her unless he had a contraceptive sheath
because she did not want children, eventually, he sought a decree of nullity on the ground that
his wife had wilfully refused to consummate his marriage. Lord Chancellor Viscount Jowitt
raised the following points: (i) that the procreation of children is not a principal end of marriage.
Sterility will not prevent consummation. (ii) Parliament was not concerned with the matter of
such intimate nature when it used the term consummate had to be understood in its common
usage and in light of the social conditions known to exist. Non-consummation refers to the
inability of the spouses to perform that act of intercourse. Failure maybe due to physical or
psychological factors.
Consummation is the act of having complete sexual intercourse with a spouse on the first
opportunity after marriage ceremony, this usually takes place on the first night, in a customary
law marriage, a marriage is invalid unless or until been consummated, failure to consummate
this nullifies it, the rationale is to ensure that procreation takes place.
Different tribes have different ways on how to ensure that consummation takes place on the
first night of the marriage, e.g. the Bemba, Tonga, Lozi people on how consummation is done
is shown below; the Luyana of Mongu, the bride and groom are put in a house to sleep very
early in the morning, a tutor called Bahale visits the couple to see if they performed i.e. if she
is not rigid or not impossible to penetrate for some physical defect or mental reasons. The
woman will pound a mortar of the lukunba ree to indicate the number of times the sexual acts
that acquired, if the woman fails to perform she be taken back to the village the bride’s wealth
will be returned, but if the man failed to perform he is given another chance.
The Bemba use the Banachimbusa to inspect the newly married and if the marriage was
consummated, a special hoe called the ikundi: yapaa chitanda which is put under the bed in a
special basket, the significance of it is to show the hoe is reserved and chaste the girl was before
marriage, if she is not a virgin, then the man will throw away the hoe just after consummation,
if the man fails to perform he is given herbs and three more chances to try and consummate the
marriage and if he fails, the marriage is nullified.
The Tonga people of the Gweembe- a woman called Nchembele instructs the woman on what
to do on her first night, and she remains in the hut until the man pays to get her out, she goes
out for the couple to have sex, In the morning the Nchembele comes to find weather the sexual
10
act was successful. She will stand by the door and say Zwa munganda yangu (meaning; come
out of my house) and she will answer back saying “it is his house”.
In the case of Margret Mumbi vs. Soka, it is a very good example of showing the importance
of consummation under a customary law marriage in the case were the couple got married and
for a period of one year the defendant refused to have sexual intercourse with the plaintiff and
the couple slept in different beds, the plaintiff sued for divorce, it was held that the marriage
was voidable because it was not consummated by sexual intercourse, the marriage was ended.
2. Legal significance of marriage payments
At the time marriage is negotiated, one of the elements that must be settled is payment of the
bride wealth (lobola), the common form of payment is paid by cattle, although occasionally
money is substituted, a period of two or four years is not regarded as successive delay, some
have waited for ten years or more without any results. However, if such a man has troubles
with his wife he can accept assistance from affines, who have no interest in seeing that his
marriage continues.
In the case of Dorika Kapwaya vs. Andrew Shimuyundi illustrated this point, the defendant
did not pay the bride price, the plaintiff deserted him and the defendant insisted that she should
join him, the court held that the defendant did not marry the plaintiff, they were just friends
and that she could not be forced to join him.
Some parents indeed take more punitive action by claiming back their daughter until the bride
price is paid, this payment is also important for a man who has lost his wife for he has to be
purified for without purification he cannot be married or have any type of sexual intercourse
with any woman.
Bride price is returnable should the marriage break down, the responsibility for its refund in
the case of divorce attaches to the person who originally received it and is not altered by its
subsequent distribution, the father of the bride receives it and later shares it with his relatives,
he remains liable for its return.
3. Capacity to contract a customary marriage
Under customary law marriages there is no fixed age at which a person becomes legally capable
of contracting a valid marriage, however, both parties must have reached the age of puberty
and a boy must be in addition, be physically mature, the puberty ceremony serves as a means
of letting the people know that a girl has undergone her first menstruation. A girl that has not
had her first menstrual cycle cannot marry neither can a boy who cannot produce semen, but
can only get betrothed.
11
Insanity is a legal bar to marriage, as in this state the insane person is unable to give the required
consent to marry, which is legally necessary for the creation of a valid marriage, a married
woman, during the continuance of her marriage, cannot enter into a valid subsequent marriage
with man, a man may contract any number of marriages under customary law during the
continuance of the prior marriage or marriages contracted under customary law marriages.
Prohibited degrees; customary law recognizes a system of prohibited degrees far more
extensive in its range than the corresponding system in a statutory marriage. This is because
African societies are more closely knit than their European counterparts and there rules of
exogamy have therefore a wider and stricter application, operating sometimes to bar the
marriage of persons belonging to the same patrilineal or matrilineal clan, which may in terms
of practice embrace a whole village or kindred group, the general rule as regards degrees of
consanguinity within the marriage is prohibited as members of the same clan are prohibited
because it is considered incestuous for such people to indulge in any kind of sexual relation.
Marriages between such parties within certain degree of affinity is discouraged. The word
discouraged is used rather than prohibited because prohibited degrees of relationships range
from those in which marriages would never be contemplated through gradations, where consent
may be increasingly possible even if the marriage is disliked to cases where no obstacles exist,
tribal membership does not affect a person’s capacity to marry, though there is statistically a
marked preferential selection of spouses of the same tribe.
4. Marital status
In the case of customary law marriages, the factors that may affect the validity include marital
status of the woman, that of the man does not matter, matrimonial rights, obligations and duties
of the spouses that flow from the marriage relationship include other among other things the
name; before marriage, the bride is often called by her first name, under statutory marriage the
wife loses her identity once the marriage contract comes into existence and hence forth she is
identified by her husband’s name with “Mrs.”. For the Bemba, of Northern Province of Zambia
they pretty much do the same in most parts of Zambia.
The only difference is that under statutory marriages, the wife is identified only by “Mrs.”
Under customary law marriages apart from “Bana” among Bemba, “Bamuka” among the
Tonga, “Bamake” and “Boma” among the Lozi, she is also identified by reference to her
children if she has any.
A girl must be single, widowed or divorced, while the marital status of the man does not matter
since the marriage is potentially polygamous.
5. Marriage ceremony
12
Formalities of marriage under customary law may vary from one community to another,
sometimes from locality to locality, it would appear that there are no essential legal formalities
for a marriage ceremony. No law regulates the formation of marriage, it is an agreement
between a man and the parents of the woman who agree to the marriage upon specific
provisions for the celebration of statutory marriages. Unlike a customary marriage, statutory
marriage is a public act, in the sense that the state, through the its appropriate official, the
registrar, takes an active interest and part in it. There must be a marriage ceremony before a
woman is regarded married under customary law,, the marriage ceremony is important socially
in that it is a form of advertisement which takes message to the rest of the community in which
it is performed, the parties are now husband and wife, the initial marriage ceremony varies
today according to the desires of those who enter into the marriage, some follow traditional
rites more or less closely, others have abandoned most of the rituals but instituted no new
ceremonies, others have adopted the Christian marriage ceremony.
Among those who follow traditional rites, the marriages transaction is normally long drawn
out process, and there is often some doubt, both as to the exact point in that process at which
the parties become husband and wife, usually the woman is not informed that she is to be sent
to her husband on a given day but in theory, the woman is aware but pretends she does not
know as it is considered to be good manners. A cow is slaughtered for well to do families and
drums are beat and the feast is held with few family members and friends to celebrate the union,
with the bride being removed by the elderly women from a room to go meet up with her groom
in a ceremony manner, with or without pomp that is after she has been taught all she needs to
know on how to look after the family and the home.
6. Abduction
The formal marriage proposal and negotiation maybe ignored if the man wants to abduct the
female spouse into marriage, this is called “ku uzwa Musali” among the Lozi people of western
province. Among the Tonga people, the man proposes to the woman, and they exchange gifts
this is called Cizuminano but before the woman’s parents are traditionally informed about the
marriage proposal, the woman runs away with the man to his house in theory that the woman’s
parents are supposed to be kept in ignorance about the abduction,
it is considered as bad behaviour to be abducted as a respectable daughter should be married
through formal marriage proposal, the woman informs her grandmother or any elderly woman
in the village about her departure from her parents’ house and inform them that “ we have
stolen your calf” meaning they have abducted the woman, there is no way parents of the woman
13
can disapprove of the marriage whether they like the man or not, they cannot demand for the
return of their daughter as it is considered as a taboo to do so.
This form of marriage contraction is still regarded as a valid way of marrying under customary
law and the children born from such a marriage are never regarded as illegitimate, they are as
legitimate as those born in a well arranged marriage.
8. Betrothal
Customary law marriage is frequent, although by no means, invariably, proceed by an
engagement, Betrothal is regarded as a first step of a series of acts which would inevitably
culminate in marriage and therefore is much more than a mere public announcement of the
couples intention to marry, traditionally betrothal created a relationship between the two
families to which the parties belonged, this idea is expressed in formal behavior, in the use of
the relationship and terms and sometimes in mutual economic assistance and mutual visits and
exchange of gifts.
Formally betrothal was established by engagement between the parents of the young man and
parents of the young woman without regarding necessarily to the consent of the betrothed, this
was years before the parents were mature enough to marry and the marriage did not take place
until some years afterwards. This practice is no longer in existence. Betrothal now takes form
of agreement of between man and woman and it may take place at any time before the marriage,
the parties are generally not supposed to have sexual relations, if they do and pregnancy results,
the man is liable to pay damages to the parents of the girl.
This is because under customary law, it is an actionable wrong to impregnate an unmarried
woman.
In an action against the man, the case may either be settled between both parties with help of
elders or a go-between or formally be brought before the courts of law, however, most parties
try to persuade a marriage and include damages in their marriage payments, it is often thought
that most honorable and desirable solution to a case of premarital pregnancy is a marriage
between man and woman, betrothal does not create uxorial rights to enable the future husband
to sue and obtain compensation from another man who has sexual intercourse with the
prospective bride.
Betrothal may be terminated by mutual agreement or repudiation by either party without good
cause, it appears the parents of the betrothed girl may bring it to an end by withdrawing their
consent at any given time prior the marriage, gifts are returnable in all cases, except in the event
of death of either parties.
14
2.3 CHAPTER TWO SUMMARY
Different authors mentioned above whose study works I have acknowledged in this chapter
have done numerous researches on various topics bearing on dual forms of marriages existing
in Zambia. The commonly cited findings of their research work on the major causes of divorce
in Zambia included sexual matters such as reproduction, performance, infidelity, spousal abuse,
unrealistic expectations by both partners, extra marital affairs and unequal sexual appetite.
However, despite the study on various topic by these scholars cited in this chapter, none of
them did a research on the conflicts between customary and civil marriages vis-à-vis divorce, a
Zambian case study. Which is the main focus of this research.
Further consultation was done from the following statutes. The high court act Cap 27 of the
laws of Zambia, the marriage act Cap 50 of the laws of Zambia, the matrimonial causes act No
20 of 2007, the local court act Cap 28 of the laws of Zambian etc.
15
CHAPTER THREE
METHODOLOGY
3.0 INTRODUCTION
This chapter deals with the methodology used to select study sites, respondents and participants
and analyze qualitative data.
3.1 RESEARCH DESIGN
This study employed a qualitative mode of inquiry as discussed by Gupta & Gupta, 2011. 26
because data collection was through interviews, field notes and focus group discussion. The
population for this study comprised of some traditional marriage counsellors (Alangizi,
banacimbusa and bashibukombe) and married men, women as well as elderly men and women
from different tribes of Zambia. The sample size comprised of 40 respondents of which some
were married couples, traditional marriage counsellors, and local courts officials. Church
marriage counsellors, pastors and traditional marriage counsellors were purposely selected
using a purposive sampling technique. Some traditional marriage counsellors and couples were
involved in the study through snowball sampling where one participant helped researchers
identify others. The data was analyzed thematically by organizing the common themes or
patterns that emerged from the responses of the participants so that appropriate conclusions can
be made. The analysis of qualitative data varied from simple descriptive analysis to more
elaborate reduction and multivariate associated techniques, raw data from interviews, field
notes or focus group discussions and content analysis was subjected to the constant
comparative analysis technique in order to reach the most significant themes of the topic under
study.
3.2 STUDY AREAS, SAMPLING AND SAMPLE SIZE
The study was conducted mainly in Lusaka. Lusaka is the fast-growing capital city of Zambia,
with an estimated population of about 3 million people living in Lusaka. This makes it the
largest city and commercial center. The British established Lusaka as the capital of Northern
Rhodesia in 1935 and it remained the capital city even after the country gained its independence
in 1964. In Lusaka you find a cross section of all the 72 plus tribes of Zambia. Due to
urbanization most people have migrated to Lusaka for professional reasons, to seek both formal
and informal employment. Therefore, I found it conducive to carry out my study in Lusaka.
26
Gupta, M. & Gupta, D. (2011). Research Methodology. Delhi, India: PHI Learning Private Limited.
16
Another area of my study was conducted in the area of chief mwanjabanthu of the nsenga
people of eastern province of Zambia i.e. kaselo village of Petauke district, where I interviewed
the chief and village headmen on customary law since they are the custodians of customary
laws and I also spoke with other respondents.
3.3 METHODOLOGIES
(1) Actors and structures approach
The actors and structures approach made me collect information from various decision makers
and influential people. In using the actors, norms and structures analysis I was able to
systematically dissect the issue at hand by first of all identifying who my major actors were in
respect of each objective, i.e., the church leaders, traditional chiefs, organization staff and local
court justices.
The traditional chiefs and headmen are important in this research as they are the custodians and
enforcers of customary laws and are responsible for the current provisions under which
customary laws favors men but not women on the dissolution of customary law marriages in
terms of which men are allowed to divorce on grounds of adultery while women are not.
I interviewed chief’s mwanjabanthu of the Nsenga people of Petauke district. The chiefs spoke
as follows:
“Every country has culture and customs that guides them, when the white man came to colonize
Zambia come of our customs have been replaced by what the whites wanted. However, we still
practice some cultures because not all of them are bad others are good, like lobola is good it
makes the marriage be respected, and polygamy is good because the family grows fast.
Therefore, in Zambia it is our custom that a woman cannot divorce on ground of adultery as a
man is a potential polygamist and he can marry as many women as he can manage. If a law is
brought about, maybe it can work in town but not in rural areas, because that is our custom.”
Further, the Local Court Justices are also major actors as they are the ones that are responsible
for interpreting and applying the law and ensuring that it is clear to the beneficiaries. In using
this methodology, I was able to attend and see how the courts handle cases of adultery brought
by men or women and how the law and the courts treat a woman married under customary law.
I was able to understand what lies behind their interpretation of adultery as a ground of divorce
under customary law in the Local Court in Petauke district of the eastern province of Zambia.
17
Interviewing these selected actors improved my understanding of how women married under
customary law are marginalized on the issue of divorcing on grounds of adultery. Each actor
derives their power from the structure they operate in. It is this power that can be used to bring
about inequality and discrimination, subordination and domination of one sex by the other.
However, an important part about this methodology is that it not only helps the researcher
understand the root causes of inequalities, conversely it also helps them come up with
appropriate interventions for each actor and structure. By interrogating the norms that govern
each structure and the influence these norms have on the various actors, substantive equality
measures between men and women can be sought. It was from such a profound understanding
of the relevance of such methodologies that recommendations, interventions and remedial
measures about the various issues raised in this paper were conceived.
3.4 DATA COLLECTION METHOD
Data for this study was collected using one main methods, namely, field work.
(a) Field work
Two (2) data collection tools were used in the field: a semi-structured questionnaire and
interview. There were two main categories of respondents. The first category comprised of the
general public which included community members, i.e., men and women in general, working
class and non-working class, married or not married under customary law, and these were
chosen by random sampling.
The second group of respondents were key informants who were purposely selected to provide
specific information on customary practices. Key informants interviewed included the chiefs,
religious leaders and local court officials.
Ethical considerations
Before the study was conducted a letter of introduction was given from the LIUTEBM
University management. This letter was used to introduce me to people in the areas, such as
the Courts, the chiefs, Government Ministries, and churches and even individuals who would
no doubt need more than a simple introduction. Permission was granted in some areas and not
in others.
3.5 INTERVIEW IN-DEPTH
The study was made possible by using an actor’s structure approach, by collecting data from
influential people like: Traditional Chiefs, church Leaders, Organizational Staff and Local
Court Justices.
18
As I went around doing the interview, the following questions were running in my mind. Is
customary marriage considered as legal marriage as statutory marriage in Zambia? Does it
mean that the rights of women married under customary law are not important? There is no
awareness campaign for chiefs about the danger of promoting promiscuity among men married
under customary law of the HIV/AIDS and the prevailing human rights for women not to be
discriminated against? These are among the many questions that came to my mind as I went
around interviewing different actors, one key informant lamented at how custom is custom and
how Zambia as a country shall be without identity if customary law is overtaken by foreign
culture which has come with new technology of Internet, Facebook, cell phones, television and
the like. He went on to say that:
“That’s why there are so many divorces now days because we have totally lost our culture and
our custom is lost on marriages, because children stay too long in school, where children are
exposed to television, Facebook and internet so children have no knowledge about customs,
am seeing custom finishing with new generation of our children’s children.”
The courts who are the implementers of the law are the major actors who are responsible in
ensuring that once this law is finally made into a statutory law should be made clear to the
beneficiaries. They should make it is clear that the aggrieved persons can challenge the action.
In using this methodology, I was able to assess how local courts handle cases of divorce on
grounds of adultery, how women are discriminated against by customary law and their
interpretation of the customary law. To this effect I interviewed the local court justices.
With The intention to get information on the practice of the church, how the church views
customary law, adultery and divorce. Whether religion acts as a barrier against women
divorcing on grounds of adultery. One clergyman I interviewed said:
“The church recognizes customary law marriages and couples are encouraged to come to
church and register the marriage then the marriage is blessed by the church. However, the
church does not encourage divorce on any grounds of divorce the teaching of the bible talks of
reconciliation. In the Bible in the book of Mark Chapter 10:9 Jesus said that once two people
marry they become one flesh and therefore what God joins no man can separate so as a church
we don’t have authority to separate what God has put together as one, on the question of
adultery, that’s why couple take vows so that is also for better or for worse, to forgive each
other. But the aggrieved party insists we wash our hands, then they can go to the courts of law
if they so wish, we do not impose we just teach them the word of God and what God expects
from a Christian”.
19
The most difficult part was the protocol involved particularly with traditional authorities. I was
required to follow a certain tradition when interviewing chiefs. When I went to interview a
chieftain and despite having an introductory letter from the university, I was also supposed to
get another letter from the Ministry of Chiefs and Traditional Affairs. But after pleading and
negotiating, I was allowed and told to make another appointment through a kapaso called the
Returner for the chief.
Then I was told that I could not interview the Chief empty handed, the custom is that you must
take money and some food stuffs like cooking oil, sugar, salt, and the likes. After the Returner
was satisfied, I was given an appointment. Finally, I was allowed to interview the Chieftainess.
When I interviewed the Chieftainess, she said:
“When I receive a case of a woman bringing a complaint that her husband has committed
adultery, first I shall ask both of them to reconcile because a man traditionally can marry many
wives so why should a wife divorce on adultery? (For a) long time there was nothing like a
woman divorcing on adultery. How about the many cows that your parents paid for you who
is going to pay back? With the cattle disease called Genkede all the animals might be dead. So
a woman is taught to keep her marriage well and her husband and children. It’s now because
HIV/AIDS if a woman insists like (they do) these days I refer such cases to the local courts.
Mostly in this court I am dealing more with cases on land issues and we treat women equally
in my Chiefdom. Customs, I know that it is a barrier, it does not allow a woman to divorce on
grounds of adultery but I know as chiefs they teach us in seminars the rights of women. Yes
women should be allowed to divorce as well because a man is allowed, so the same should be
so. The other thing I have seen is that most women don’t bring these cases to the palace but we
hear that so and so has committed adultery but women are not bringing these cases to the palace.
Why? The reason is simple, most women have nowhere to go, they don’t want to go to their
parents, that’s why most women don’t even bring these matters to court, they have no money
they are poor”.
After interviewing the Local Court Justice on the status of customary marriages and civil
marriages in Zambia. the following is what he said:
“customary law is not as serious law per se because its application is on the justices discretion
and not on what is codified as law, under civil marriages codified laws are applied and
precedents are set, which is not easy to set a firm precedent in customary marriages because
they differ from locality to locality or from tribe to tribe”
20
On the basis of the data that I got from the interview it became imperative that customary law
marriages are not accorded the same treatment with civil law marriages when dealing with
divorce on different grounds.
3.6 CHAPTER THREE SUMMARY
This study employed a qualitative mode of inquiry as discussed by Gupta & Gupta, 2011. 27
Data collection was through interviews and field notes. The population for this study comprised
of some traditional marriage counsellors (Alangizi, banacimbusa and bashibukombe) and
married men, women as well as elderly men and women from different tribes of Zambia. In
trying to achieve my research objectives I used the actors and structures approach which
helped me collect information from various decision makers and influential people. In using
the actors, norms and structures analysis I was able to systematically dissect the issue at hand
by first of all identifying who my major actors were in respect of each objective, i.e. the church
leaders, traditional chiefs, organization staff and local court justices.
Two (2) data collection tools were used in the field: a semi-structured questionnaire and
interview. There were two main categories of respondents. The first category comprised of the
general public which included community members, i.e., men and women in general, working
class and non-working class, married or not married under customary law, and these were
chosen by random sampling.
The second group of respondents were key informants who were purposely selected to provide
specific information on customary practices. Key informants interviewed included the chiefs,
religious leaders and local court officials.
27
Gupta,M. & Gupta. D. (2011) Research Methodology. Delhi, India: PHI Learning Private Limited.
21
CHAPTER FOUR
DATA ANALYSIS, PRESENTATION AND DISCUSSION
INTRODUCTION
The findings are presented based on the research objectives and subthemes that merged from
the study. After carrying out my research in line with my assumptions I found out the following.
DISCUSION OF FINDINGS
The findings are presented based on the research objectives and subthemes that merged from
the study. After carrying out my research in line with my assumptions I found out the following.
BACKGROUND OF MARRIAGE IN ZAMBIA
The first research objective was to explore the background of marriages in Zambia, and the
findings were that
Before the arrival of the colonialist in Zambia the laws that were applicable to the territory
were indigenous customary laws. Colonialism was merely a supreme position of imposed laws
legal systems as well as concepts of justice on an already existing and firmly established legal
structure28 like other countries which were colonized by England, Zambia is recognized as a
common law jurisdiction. While this is a consensus that Zambia falls within common law
camp, however there is little agreement as to what this actually means either in theory or in
practice and still less as to what it should portend for the future.
Zambia has a dual legal system of laws, customary law and common law, leading to two types
of marriages customary and statutes, most of the statutory laws of marriage are composed of
received laws which in view of the colonial history, is in effect English law. The English law
of marriage applies to Zambia by virtue of section 11 of the High court Act,29 while customary
law is recognized and applicable to the country by virtue of section 16 of the Subordinate
court Act30 provided that such law is not repugnant to natural justice, Equity or good
conscience and is not incompatible either in terms or by necessary implication with any written
law in force in Zambia. From its very inception, the system of judicial administration
introduced by the British of northern Rhodesia differentiated between Europeans and Native
African due to the belief of white superiority over the Natives. Section 14 of the Royal charter
28
Ndulo M (2014) law in Zambia east African publishing house, Lusaka p143
Cap 27 of the laws of Zambia
30
Cap 28 of the laws of Zambia
29
22
of October 29, 1989 entrusted the administration of Rhodesia to British South African
Company
Though customary marriage was expressly recognized in the colonial period, the colonial
legislature tended to emphasize the superiority of a statutory marriage over a customary
marriage, for example in criminal law a customary marriage spouse was not regarded as a wife
for purpose evidence rule31 this meant that a customary marriage spouse could be compelled
to give evidence against his or her spouse whereas a statutory law counter-part could not be so
compelled.32
African customary marriages were not regarded as true marriages and the relationships of
husband and wife which in European society constituted marriage was not to exist in
indigenous African society. This was because of the belief that the colonial Government
created two distinct legal systems different in nature and the law governing them.
After independence the local courts were empowered to hear and determine matrimonial causes
arising out of customary marriages. Africans were free to marry under the English marriage
Act and the subordinate court, High court and supreme courts empowered to hear end
determine matrimonial causes arising from statutory marriages. As a result of this, two systems
of law exist in Zambia.
From the aforesaid, it is clear that the inequalities existing between statutory marriages and
customary marriage today can be traced back even before Zambia got her independence.
4.0 WHAT IS CUSTOMARY MARRIAGE
Customary marriage has a number of definitions to which all denotes to mean a marriage
contracted according to traditional customs and recognized by customary law
This is the union between one man and one woman or between one man and more women and
between the woman’s and man’s families with the consent of the woman’s parents33
4.1 CONTRACTING A CUSTOMARY MARRIAGE
The definition of customary marriage brings four important characteristics of customary
marriages, these characteristics are that the marriage is firstly heterosexual this means that for
31
Ndulo M (2014) law in Zambia in east African publishing house, Lusaka p143
Ibid p145
33
Ndulo M (2014) law in Zambia in east African publishing house, Lusaka p144
32
23
there to be a valid marriage, the parties to the marriage must be of different sexes. Zambian
customary law does not recognize marriage within the degrees of affinity and consanguinity.34
Secondly, customary marriage law does not recognize polyandrous marriage this is a situation
where a woman marries more than one man35
Thirdly customary marriages are potentially polygamous. This is to say that a man can marry
more than one wife besides the first wife either immediately or at a later date. This polygamous
nature of marriage was confirmed in the case of Veronica Zulu v Nelson Zulu36
The facts of the case were that the petitioner, three months after the local court had earlier
reconciled them, the respondent only stayed for four days with the wife after she had come
back to the matrimonial home. The respondent had stayed away from home for two weeks after
his return to the village he found that the wife had left, when the matter come before the local
court in a lawsuit initiated by his first wife, the local court reminded the petitioner that the
respondent was a polygamous man and as such was supposed to have waited for the
respondents return from the other village where he had gone to see the other wife instead of
asking for divorce37
Fourthly there is the aspect of marriage bonds. This marriage under customary law does not
only imply that it’s the union between the man and the wife but also denotes a union between
the man’s family and that of the woman. Thus, both the couple and their families are part of
the union. This relationship plays a significant role in divorce process. Marriage is only valid
when there is consent of the woman’s parents this consent is more important than that of the
woman herself. It is possible to have a valid marriage without the consent of the woman
because the customary practice is for the woman’s family to give consent on behalf of her.
Consent of the woman’s parents is vital and essential element of a valid customary marriage38
but the acceptance procedure today is for the couple to decide that they will marry.
The young man approaches the girl’s family, if the latter has no preliminary obligation
objection, he announces that they can discuss the matter together and if the man is serious about
the marriage proposal, he must send a representative to negotiate.
34
Mumba C (2020) customary law of marriage and divorce among the lenje of central province, east African
publishing house, Lusaka p140
35
Ndulo M (2014) law in Zambia east African publishing house, Lusaka p140
36
(case 098/2020) held at Mumbai local court, grade B petauke
37
Ndulo M (2014) law in Zambia east African publishing house, Lusaka p50
38
Mulilo K customary marriage and divorce among the sala of central province, (2014 obligatory essay)
24
The young man then consults with his relatives, if they are agreeable, they send negotiators to
discuss the matter with the girl’s guardians, the negotiating team usually includes at least the
representative from the father’s family and mothers of the man proposing the marriage and the
shimukombe of the man. This person is given responsibility of teaching the man good manners
of husband and their duties in the home. He is also the one who provides herbs to the young
man for his manhood if necessary. The guardian will be the man in whose household the girl
is living, but he must summon the representatives from both families for a meeting. The girl
side may refuse the suitor without consulting the girl if they dislike the match. If they are
favorable and willing to meet the negotiator this is in an indication that they have no real
objection to the match, they then send someone usually the girls grandmother to interview her
and assure themselves that she consents they will then notify the man and ask him to pay lobola.
A man also approaches the girl’s guardian without having previously reached an agreement
with her. The procedure that follows is pretty much the same notwithstanding. Guardians thus
maintain their right to veto the choice made by the girl and the girl may be urged and badgered
by her guardians to accept a man who she does not like until she finally gives away under the
pressure39
4.2 BETROTHAL
Customary marriage is frequently invariably preceded by an engagement. Betrothal is regarded
as a first step of a series of acts which inevitably culminate in marriage and therefore is much
more public announcement of the couple’s intention to marry. Traditionally betrothal created
a relationship between the two families to which the parties belong to. This idea is expressed
in formal behavior, in the use of the relationship terms and sometimes in mutual economic
assistance and visits and in exchange of the gifts40
Betrothal was established by engagement between the agents of the young man and the parents
of the young woman without regards necessary to the consent of the betrothal. This practice
was done years before the parties mature to marry and did not take place in form of agreement
between the man and the woman and it may take place at any time before the marriage. The
parties are not generally supposed to have sexual relations if they do and pregnancy results the
man is reliable to pay damage to the parents of the girl41
4.3 LEGAL SIGNIFICANCE OF MARRIAGE PAYMENT
39
Katowa (2011) an evaluation of sanctity of marriage between customary marriage vis a vis divorce
Colson E (2012) marriage and the family among the plateau of the Tonga of Northern Rhodesia, Manchester
publishing house, Manchester p44
41
Barnes J (2017) marriage in changing society Ben’s paper no33
40
25
At the time a marriage is negotiated, one of the elements that must be settled is the payment of
the bride wealth. The common form of the payment is paid in cattle for; although occasionally
money is substituted42 a period of two to four years is not regarded as successive delay. Some
men have waited for ten years or more without any results. However if such has troubles with
wife he can expect assistance from his affine, who have interest in seeing that his marriage
continues in the case of Dorika Kapwaya v Andrew shimuyandi43is illustrative of this point
the defendant did not pay bride price the plaintiff deserted him and when the defendant did not
marry the plaintiff, they were just friends, and that she could not be forced to join him
Some parents indeed take more punitive action by claiming back their daughter until bride price
is paid this payment is also important for a man who loses his wife for him to be purified, for
without purification he can neither remarry nor have sexual intercourse with another woman44
a woman who ends up having sexual intercourse with such a man can either die or go insane.
All his children will be regarded as illegitimate and where his daughter born from such a
marriage gets married, he is not entitled to take part in the sharing of the bride price.45 Amongst
the chewa of katete Eastern province Nsambo is the bride wealth.
4.4 CAPACITY TO CONTRACTING A CUSTOMARY MARRIGE
There is no fixed age at which a person becomes legally capable of contracting a valid marriage
however both parties must have reached the age of puberty, and boy must be in addition be
physically mature. The puberty ceremony series as a means of letting the people know that a
girl has undergone her first menstruation. A girl who has her first menstrual cycle, cannot marry
neither can a boy who cannot produce semen. But can only get betrothed Insanity is a legal bar
to marriage as in this state the insane person is unable to give the required consent to marry,
which is legally necessary for the creation of a valid marriage. A married woman during the
continuance of her marriage cannot enter into a valid subsequent marriage with another man.
A man may contract any number of marriages under customary law during the continuance of
the prior marriage or marriage contracted under customary law46
Prohibited degree; customary law recognizes a system of prohibited degree far more extensive
in its range than the corresponding system in a statutory marriage. This is because African
42
Brown R (2017) African system of kinship and marriage (unpunblished) p12
Mwanbeshi local court case no. 387 of 1999
44
Mushota L (2015) family law in Zambia, cases and materials, UNZA press, Lusaka p55
45
Ibid p55
46
Barnes J, (2017) marriage in changing society Ben’s paper no33 p8
43
26
societies are more closely knit than their European counterparts and their rules of exogamy
have therefore a wider and stricter application, operating sometimes to bar the marriage of
persons belonging to the same patrilineal or matrilineal clan which may in terms of practice
embrace the whole village. The general rule as regard to degree of consanguinity within the
marriage is prohibited as members of the same clan are prohibited because it is considered
incestus for such people to indulge in any kind of sexual relations47
Marriage between such degree is discouraged the word discouraged is used rather than
prohibited because prohibited degree of relationship ranges from those in which marriage
would be contemplated through gradations, where consent may be increasingly possible even
if the marriage is disliked to cases where no obstacles exist. Tribal membership does not affect
a person s capacity to marry. Though there is statically marked preferential selection of spouses
of the same tribe.
4.5 MARITAL STATUS
Matrimonial rights, obligations and duties of the spouse that flow from the marriage
relationship include among other thing the name; before marriage the bride is often called by
her first name. Under statutory marriage the wife loses her identity once the marriage contract
comes into existence and hence forth, she is identified by the husband’s name Mrs. Before her
name thereby signifying is married. Incidentally same is true for a marriage contracted under
customary law where the word Bana so and so or amake so and so equivalent to Mrs. A girl
must be single, widowed or divorced while the marital status of the man does not matter since
the marriage potentially polygamous48
4.6 MARRIAGE CEREMONY
Formalities of marriage under customary law may vary from place to place and sometimes
from locality to locality it would appear that they are no essential legal formalities for a
marriage ceremony. No law regulates the formation of marriage. It is an arrangement between
a man and the parents of the woman who agree to the marriage upon specific terms. In a
statutory marriage the situation is different the marriage act makes specific provisions for the
celebration of statutory marriage. Unlike a customary marriage a statutory marriage is a public
act in the sense that the state, though it’s appropriate the registrar takes an active interest and
part in it49
47
Philps A (2020) survey of African marriage and family, university press p40
Mushota L (2015) family law in Zambia, cases and materials, UNZA press, Lusaka p56
49
Ndulo M (2014) law in Zambia east African publishing house, Lusaka p150
48
27
They must be a marriage ceremony before a woman can be regarded as having been validly
married under customary law marriage ceremony is important socially in that it is a form of
advertisement which takes the massage to the rest of the community in which it is performed
that the parties to the marriage are now husband and wife
Among those who follow traditional rites the marriage transaction is normal long drawn out
process and there is often some doubt both as to the exact point in the process at which the
parties become husband and wife. Usually the woman is not informed that she is to be sent to
her husband’s on a given day but in theory, the woman is aware but pretends she does not know
as it is considered to be good manners. A cow is slaughtered for well to do families and drums
are beaten and a feast is held with few family members and friends to celebrate the union with
the bride being removed by elderly woman from a room to go meet up her groom in a
ceremonious manners, with or without pomp that is after she has been taught all she needs to
know on how to look after the family and the home50
4.7 CONSUMATION
Consummation is the act of having complete sexual intercourse with a spouse on the first
opportunity after the marriage ceremony, it usually takes place on the first night in spite of
fulfilling all the marriage requirements a marriage is not valid unless it has been consummated
failure to consummate nullifies it, the rationale is to ensure that procreation will take place
practice of the lozi of western province, bemba of Northern province and the Tonga of southern
province are shown hereunder
The luyan of mongu at the groom’s village is put in the house to sleep. Very early in the
morning on behalf a tutor visits the couple to see if they have performed full sexual intercourse.
The man puts money on the pillow and legs outside the bed if the girl has performed i.e. if she
is not rigid or not impossible to penetrate for some physical defects or mental reasons the
woman will pound a mortar of the lukumba tree to indicate the number of times of the sexual
act. If the woman fails to perform, she is taken back to her village and the bride wealth is
returned but if the man fails to perform, he is given another chance51
The case of Margaret Mumbi v Soka52 is a good example in showing the importance of
consummation under a customary marriage in that case, the couple got married and for period
50
Mushota L (2015) family law in Zambia, cases and materials, UNZA press, Lusaka p67
Ibid p80
52
Livingstone local court, case no 0376 of 1980
51
28
of one year the defendant refused to have sexual intercourse with the plaintiff and the couple
slept in different bed rooms. The plaintiff sued for divorce it was held that marriage was
voidable because it was not consummated. The marriage was ended.
4.8
OTHER
WAYS
OF
CONTRACTING
A
CUSTOMARY
MARRIAGE
(ABDUCTION)
The formal marriage proposal and negotiations may be ignored if the man was to abduct the
female spouse.
Among the Tonga the man proposes to the woman and they exchange gifts this is called
Cizumino. But before the woman’s parents are traditionally informed about the marriage
proposal the woman runs away with the man to his house in theory the woman’s parents are
supposed to be kept in ignorance about the abduction. It is considered as bad manners to be
abducted as a respectable daughter is supposed to be married through the formal marriage
proposal. However, the woman informs her grandmother or any elderly woman in the village
about her departure from her parent’s house. The elderly woman does not inform the parents
until after the couple has left the village. The following day the father of the man will go to the
woman’s parent’s house and inform them that we have stolen your calf meaning they have
abducted the woman. There is no way the parents of the woman can disapprove of the marriage
whether they like the man or not, they cannot demand for the return of their daughter as it is
considered a taboo to do so.53
4.2.1 DIVORCE UNDER CUSTOMARY
Customary can also be dissolved in court just like statutory marriage usually customary
marriages are dissolved by one spouse who want to divorce telling the other party about it
whereupon the latter informs his or her parents than the elders of the both parties will than sit
together with the spouses and hear why one party wishes to divorce the other. Upon hearing
from both parties, they will try to reconcile them.
As regards to court procedures for divorce the petitioner pays a fee after which summons for
divorce is issued at a local court is obtained. The summons inter alias will show why the
petitioner wishes to divorce the other as well as the date of the hearing. Both parties are required
in person and in case of a woman it is a policy of the local court to insist that she comes with
her close relative.54
53
54
Phiri J (2022) maintenance of divorced woman at customary law, a critical analysis Obligatory essay
Ndula M (2014) law in Zambia, East African publishing, Lusaka p170
29
The reason for this is that the opinion of the relative is always considered, albeit, the court is
not bound by such opinion when granting the divorce. Like the former procedure, the courts
are always reluctant to dissolve each marriage which comes before them but tries to reconcile
the parties. There are many instances where the local court instead of granting divorce has only
encouraged the parties to reconcile55 in the case of Suzana Kafwale v Dandi Kafwale56 the
court encouraged the parties to reconcile and held that since the parties had agreed to remain
as husband and wife the court could not force them to divorce.
Similarly, in the case of Ehinda Mutobela v Paul Mwamba57 the court encouraged the parties
to reconcile if there is no improvement after reconciliation the petitioning spouse can go to
court again and this time the court will grant them a divorce without hesitation.
It must be pointed out that it is only in the rarest of cases that the local court can grant divorce
when it is soughing for the first time. And from the case studied is given when there is evidence
adduced to the effect for many times before the parties had failed to reconcile.
4.2.2 GROUNDS FOR DIVORCE UNDER CUSTOMARY MARRIAGE
The research showed that the major causes of divorce in customary law marriages include
bareness and impotence, refusal to render conjugal rights, willful desertion, gross cruelty and
neglect58, adultery, separation for two years and five years. However, these grounds are stated
and explained below with some explanations of respondents.
 ADULTERY
Adultery is simply a situation by which a married spouse engages in a sexual act with another
person other than his/her spouse. One of the respondents had this to say “according to
customary law, a woman’s adultery with another man other than her husband is a strong ground
of divorce, but the adultery of the man in a customary marriage is not a ground for divorce, this
is because customary marriages are polygamous in nature.” But if the spouse to a marriage
wishes, can take up the matter to the local court for the court to determine on the nature of
adultery. In the case of Valenasi Lungu v Basikolo phiri59 the local court justices declined to
continue with the hearing regardless of the fact that the woman was caught in adultery but who
55
Ibid p151
Solwezi local case no. 325of 2014
57
Ibid no 325 of 1994
58
Mushota L (2016) family law in Zambia, cases and materials, UNZA press, Lusaka p273
59
Case no 0283 of 1984
56
30
later appeared before the elders with her lover who ordered to pay damage to her husband
despite the fact that the case had already been before the local court.
The previous case demonstrates the fact that the local court recognized the vital role played by
village elders in resolving marital problems under customary law Similarly, in the case of
Lukasu Phiri v Nilo mulenga60 the plaintiff alleged that the defendant committed adultery with
his wife the co-defendant to which defendant admitted and the court ordered the defendant to
pay compensation to the plaintiff.
 IMPOTENCE / BARRENESS
This is a serious ground of divorce under customary marriage because childbearing is an
important factor into the union of both families to a marriage. Impotence or bareness may be
of a permanent nature in order to affect a divorce but usually an attempt to cure the condition
is always allowed. Sometimes parties may decide not to divorce despite not having children.
Usually a wife may petition for divorce if her husband is impotent. Whether or not divorce
would be granted immediately would depend on how long the marriage has lasted. If the
husband becomes impotent shortly after the wedding his marriage payment is returned and the
marriage is dissolved. However, if the impotent later in the marriage the court will be tolerant
and will request the wife to give her husband sufficient time to get the impotence treated
This can be tolerated if there are children in the marriage under customary law bareness is not
a ground for divorce ipso facto. The rejection of this ground is based upon acceptance of
polygamous marriages if the woman is barren the husband will be advised privately to marry
another fertile wife in the hope that he can father a child61
 DISSERTION
Most cases of this nature are by women. An intention that the woman is going for good must
be shown the finds out about her whereabouts then tries to persuade her to join him. If she
refuses it means she breached her duty to cohabit and the husband may divorce her. It may be
presumed that he does not love her anymore and she can remarry, in the case of Nand Halumbe
v Afred Mazuba62 the spouse had been married for some time and had two children, but for
two years the wife was living at her parents’ house due to some problems the husband did not
60
Solwezi local court case no, 27 of 2017
Aspects of law of maintenance of children, the case of women in Zambia, working paper in woman law no.
25 oslo. P33
62
Lusaka local court(b) case no. 323 of 2014
61
31
follow her and she petitioned for divorce. The court granted divorce after failing to reconcile
them and the fact that they had been on separation for too long
 DENIAL OF CONJUGAL RIGHTS
Except in case where a woman refuses to sleep with him because she is about to give birth or
has just given birth or her husband has a venereal disease and has not been cured a husband is
entitled to divorce his wife who refuses to have sexual intercourse with him without a justifiable
reason. In chilanji Mwanamungule v Manchishi Mwanampatisha63 the petitioner sought
divorce on ground that the respondent refused to have sexual intercourse with her due to the
fact that she had a bad smell. The court granted divorce for wilful refusal to have sex. Conjugal
rights are mutual rights flowing from the marriage and each party is entitled to demand sexual
intercourse
WHAT IS CIVIL / STATUTORY MARRIAGE
A statutory marriage is composed of received law, which in view of the colonial history is in
fact the English law. The English law of marriage applies to Zambia by the virtue of section
11 of the High court Act64 this Act declares that the law of probate and divorce in Zambia is
the law in force in England this means that most of the statutory law of marriage in Zambia is
based on the 1969 divorce reforms bill of England, in addition to the received law there is a
marriage Act65 the purpose of this act modifies the English law applicable to the country to suit
local conditions and also to set up the administrative machinery necessary to administer
marriage laws such as delimitation of district, the appointment of registrars of marriage and the
detailing of marriage ceremony procedure.66
THE LAW GOVERNING STATUTORY MARRIAGES IN ZAMBIA
The marriage Act does not define the term marriage, the English definition of marriage applied
by Zambian courts was given by Lord Pezence in Hyde v Hyde67marriage has been well said
to be something more than a contract, either religious or civil to be an institution it creates
mutual rights and obligation, as all contracts do but beyond that if confers a status, marriage as
63
Shakumbila Mwembezi local court, case no. 350 of 2014
High court Act, CAP 27 of the laws of Zambia
65
Cap 50 of the laws of Zambia
66
Mushota L (2015) family law in Zambia, cases and materials, UNZA press, Lusaka p100
67
(1866) LRI P&D 130
64
32
conceived in all Christendom, may for this purpose be defined as a union for life of one man
and one woman to the exclusion of the others.
The definition means that once married always married until death parts the parties. It does not
talk about divorce or same sex marriage68
SOLEMNISATION OF THE MARRIEGE
Section (6) of the marriage Act provides that; no marriage shall be solemnized unless notice of
the intended marriage has been given in the prescribed form by one of thereto to the Registrar
of the district in which the marriage is to take place not less than twenty one days before the
date of solemnization.
NOTICE
Section (7) of the marriage Act cap 50 of the laws of Zambia provides that; if the person giving
such notice is unable to write, it shall be sufficient if he place his mark or cross thereto in the
presence of some literate person who shall attest the same, which attestation shall be in the
prescribed form.
Section (8) provides that the Registrar shall supply forms of notice gratuitously to any person
Appling for the same forms of notice to be supplied
Section (9) further provides that upon receipt of such notice the registrar shall cause the same
to be entered in a book to be called the marriage Notice Book which may be inspected during
office hours without fee. He shall also publish such notice by causing a copy of the same to be
affixed on the outer door of the office and be kept exposed there until he grants his certificate
as hereinafter mentioned or until three months shall elapse.69
Furthermore section 8 of the marriage Act provides that the registrar at any time after the
expiration of twenty-one days and before the expiration of three months from the date of the
notice upon payments of the prescribed fee, shall issue his certificate in the prescribed form
Provided always that he shall not issue such certificate until he has been satisfied by affidavit

That one of the parties has been resident within the district in which the marriage is
intended to be solemnized for at least fifteen days immediately preceding the granting
of the certificate

That each of the parties to the intended marriage is not less than twenty-one years old
or that if he is under that age the consent hereinafter made requisite has been obtained
68
69
Bromeley PM (2011) family law (4th ed) Butterworths, London p12
Cap 50 0f the laws of Zambia
33

That there is not impediment of kindred or affinity or any other lawful hindrance to the
marriage

That neither of the parties to the intended marriage is by African customary law married
to any person other than the person with whom such marriage is proposed to be
contracted such affidavit may be sworn before the registrar.
The following conditions must be meat in order to contract a valid marriage
1. One party must be male and the other must be female
2. Neither party must be already married
3. Both parties must be over the age of sixteen
4. The parties must not be related within the prohibited degree of consanguinity and
affinity70
PROHIBITION DEGREES
Most civilized societies prohibit certain marriages which are perceived as incestuous. The
prohibited relationship may arise from consanguinity or from affinity marriage within this
degree is prohibited at all times and in all circumstances thus a man may not marry his step
mother even after his father’s death. A marriage will be prohibited whether the relationship is
traced through the whole blood or the half blood and despite the common law rule that a basted
is filius nullius the eugenic basis of the prohibition also bring illegitimate relationship within
it. Consequently, a man may marry for example, nether his half-brother’s daughter nor his
illegitimate son’s widow. On the other hand, a degree of affinity can only be created by
marriage thus whilst a man may not marry his step daughter, there is nothing to stop him
marrying his mistress’s daughter.71 This point was affirmed in the case of Wing v Taylor72
The registrar taking such affidavit shall explain to the person making the same what are the
prohibition degrees of kindred and affinity and the penalties which may be incurred under the
provisions of the marriage Act
Upon being presented by proof that the no lawful impediment to a proposed marriage that any
necessary consent to such marriage has been obtained if he shall think fit, dispense with the
giving of notice and with the issue of the certificate of the registrar and may upon payment of
70
Bromeley PM (2017) family (4th ed) Butterworths, London p14
Mushota L (2015) family law in Zambia, cases and materials, UNZA press, Lusaka p123
72
(1861) 2 sw & TR. 278
71
34
the prescribed fee, grant a special license in the prescribed form authorizing the solemnization
of a marriage between the parties named in the special license by a registrar or a licensed
minister of some religious denomination or body and may further if he shall fit authorize the
solemnization of the marriage at a place named in the special license not being a licensed place
of worship or registrar’s office73
NATURE OF STATUTORY MARRIAGES
According to English law marriage is an agreement by which a man and a woman enter into a
certain legal relationship with each other and creates and imposes mutual rights and duties.
Looking at from this point of view, marriage is a contract which also presents similar problems
just like other contracts for example a contract of marriage can never be discharged by
agreement frustration breach, death can only terminate by a degree of dissolution or divorce
pronounced by a court of competent jurisdiction74
CAPACITY TO MARRY
In order for parties to become husband and wife two conditions must be satisfied, they must
both possess the capacity to contract a marriage and secondly, they must observe the necessary
requirements as provided for under section 6-8 of the marriage act.75 Sottomary v Barros76
DIVORCE
Just as it is important to know when a legal relationship like marriage is established, it is equally
important to know when it comes to an end.
DIVORC UNDER STATUTORY LAW
In English law a marriage may be determined only by the death of one of the spouses or by a
decree of the dissolution or divorce pronounced by a court of competent jurisdiction. In the
case of decree of nullity, it terminates voidable marriages but death and divorce differ from
nullity in that they have no retrospective effects and that afterwards the parties are still regarded
as having being husband and wife up to the moment of termination of the marriage. The
matrimonial causes Act was designed to help the possibility of reconciliation without slamming
the door to divorce if the attempt failed. If the husband commits adultery or deserts his wife,
she may wish for some form of matrimonial relief less than divorcing the hope of
reconciliation77 the decree of divorce is made in two stages, the degree nisi and the decree
73
Bromeley PM (2011) family law (4th ed) Butterworths, London p11
Ibid p11
75
Cap 50 of the laws of Zambia
76
3p. D1, ca
77
Ibid p40
74
35
absolute. Subject to the provision of section 17 of the matrimonial cases Act proceeding and
property Act 1970, when the welfare of the children is involved the petitioner may apply for
the decree to be made absolute at any time after the expiration of the three months from the
granting of the decree nisi78
GROUNDS FOR DIVORCE UNDER STATUTORY MARRIAGE
There is only one ground for divorce and that ground is that the marriage has broken down
irretrievably and there are five facts coincided in order to prove that the marriage has broken
down irretrievably, and these are as follows;
 ADULTERY
The first fact on which the petitioner may rely on is that the respondent has committed adultery
and that the petitioner finds it intolerable to live with the respondent. Whether or not the
petitioner finds like with the respondent intolerable is clearly a question of fact and the test
appears to be subjective: did this petitioner find it intolerable to live with this respondent? If
the court is satisfied with this fact it seems quite irrelevant that the petitioner’s attitude is wholly
unreasonable.79
 UNREASONABLE BEHAVIOUR
The petitioner may establish that the marriage has broken down irretrievably that the
respondent has behaved in such a way that the petitioner cannot reasonably be expected to live
with him80 it will be seen that the this fact is different from the last in that the court must be
satisfied that the petitioner cannot reasonably be expected to live with the respondent: the test
if therefore objective81
The petitioner may not complain of the respondent’s behavior before marriage, even though he
does not get a divorce on discovering that his wife was pregnant per alium at the time of
marriage. It is less clear whether it will be sufficient for the petitioner to establish conduct that
would give rise to constructive desertion but could not amount to cruelly. Support for example
that a husband expels his wife from his matrimonial home or leads her to conclude mistakenly
but reasonably that he has been guilty of adultery. It is arguable that neither case would it be
reasonable for the wife to continue to cohabit with him in such circumstance. On the other
78
Bromeley PM (2011) family law (4th ed) Butterworths, London p203
Ibid p211
80
Mushota L (2015) family law in Zambia, cases and materials, UNZA press, Lusaka p265
81
Bromeley PM (2011) family law (4th ed) Butterworths, London p265
79
36
hand, it would be highly anomalous if suspicion of adultery were sufficient of giving the court
jurisdiction to grand a divorce whilst proof of its commission by itself is not82
 DESERTION
The petitioner may show that the marriage has irretrievably broken down by proving that the
respondent has deserted the petitioner for a continuous period of two years immediately
preceding the presentation of the petitioner. If say the husband deserts his wife for a year,
resumes cohabitation for a period of eight months and then deserts her again the two years
period must immediately precede the presentation of the petitioner; it must be running when
the proceedings are commenced83
 TWO YEARS SEPARATION
The petitioner may establish that the marriage has broken down by showing that the spouses
have lived apart for a continuous period of two years immediately the presentation of the
petition and that the respondent consents to the decree being granted. Living apart in this
context means living in two separate households and is therefore identical with a concept of
separation necessary to constitute dissertation84
The respondent has to consent to the degree being granted under section 1 (2) (b) of the
Matrimonial causes Act and has the right to withdraw the consent at any time before the
pronouncement of the decree. The consent has to be freely given and the giver must have the
same mental capacity as at the time of the marriage85 this provision is function recognition that
marriage is a contract from which the parties should be freed if the substratum of this section
also provides for a divorce by consent of the parties.
 FIVE YEARS SEPARATION
The last fact on which a petitioner may rely is that the spouse has lived apart for a continues
period of five years immediately preceding the presentation of the petition. This provision is
more controversial than the last because it enables the marriage to be dissolved against the will
of the spouse who has committed no matrimonial offense and who has been responsible for the
breakdown of the marriage. On one hand it has been hailed as a measure that will bring relief
to hundreds of couples who are now living in stable elicit union but are unable to marry because
82
Ibid p211
Mushota L (2016) family in Zambia, cases and materials, UNZA press, Lusaka p240
84
Ibid p243
85
Ibid p245
83
37
one or both of them cannot secure release from another union; on the other hand it has been
castigated as a Casanovas charter86
AN EVALUATION OF THE SANCTITY OF MARRIAGE UNDER CUSTOMARY
MARRIAGE
Customary marriages in Zambia are undergoing changes as a result of social, economic and
other development changes. A major contributing factor is intermarriages, not only among the
indigenous ethnic group of Zambia but also amongst other countries, the influence of the
received law whereby people tend to blend customary law practice and civil law requirements
into one form of marriage. This has often resulted into conflict of laws which local court
justices resolve according to their own interpretation without Appling any real customary law
rule87
Application of the law; customary law as applied by local courts is at variance with that applied
by traditional courts of chiefs and headmen. The latter applies actual customary law as it has
existed from time immemorial mainly because there is little interaction with other cultures and
less intermarriages, whereas in urban and peri urban areas, the social economic and
intercultural dynamic have distorted the authenticity of customary laws and practices.
Family ties; Modern couples in most cases see the alliance between a woman and a man’s
family as subordinating the individual to the wider family and their interest, this leads to a shift
of emphasis to the individual aspects of marriage as an exclusive relationship between two
persons. Modern conditions in the cities also make it very difficult to bind two families in the
past it was easy to bind the families because people married mostly in their own villages or
from a village nearby. Today people marry not only from different far away villages and towns
but from ethnic groups different from their own88
Lobola (bride price); the attitude of most European to lobola was and still is wife purchase the
tendency is to discourage it, this is a misconception which is as a result of a mistake of trying
to capture the meaning of the institution by use of concepts from the western culture setting.
The short answer is that lobola is no more the price of a wife than is dowry the price of a
husband but that either cannot acquire some of the qualities of a sale in a commercial minded
society where property is valued for its own sake. The husband’s right and power in relation to
his wife are nowhere near those which buyers acquire over things they buy. He does not own
86
Bromeley PM (2011) family law (4th ed) Butterworths, London p212
Mushota L (2016) family law in Zambia, cases and materials, UNZA press, Lusaka p12
88
Ndula M (2014) family law in Zambia, UNZA press. Lusaka p155
87
38
his wife in any sense, he cannot destroy her, sell or lease her to another person. He cannot
repudiate the marriage and recover the lobola because of her defects89
repayment of dowry; the general custom among the tonga is that once a marriage dissolved
dowry must be paid back to the parents and relatives of the man or depending on who helped
the man in paying it, to the person who played a role in the payment of dowry if it’s not retuned
marriage is considered to be still subsisting between the parties in spite of their agreement to
divorce. In the case of Jane Fulangi v Dickson Mumbinji90 where a woman divorced and
after that she had gained a reputation of a prostitute and slept with various men with litter or
no consideration at all. Her former husband heard of it and on one occasion he had found her
with a man in a sexual act. In an action for damage by the former husband against the other
man, the woman had contended that they had been divorced for two years and that any
relationship that existed and the rights incidental thereto had been extinguished by the divorce.
The court agreed with her contention but ruled however in that since under tonga tradition,
dowry is to be paid back and that since had not been done the former husband succeeded his
claim for damage for the adultery. This custom entails that once a pronouncement of divorce
has been declared by the court or elders it is not valid until repayment of dowry is made. This
further entails that one spouse can deliberately delay in paying back the dowry in order to have
the other spouse tied to him in perpetuating divorce useless and impossible.
AN EVALUATION OF SANCTITY OF MARRIAGE UNDER STATUTORY
MARRIAGE
Just like customary marriage has its flaws so does statutory marriage. The highlighted point
below will bring out the flaws though not exhaustively in order to try to refute the notion that
statutory marriage is more sacred than customary ones
The marriage Act; the marriage act is confined to regulate and formalize contract for a valid
civil marriage. It does not deal with divorce and other domestic relation such as a custody and
maintenance or financial provision for the spouse or children 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 is the matrimonial causes act no, 20 of 2007.91
89
Ibid p156
Mazabuka local court case no 18 of 2000
91
Ndula M (2014) family law in Zambia, UNZA press. Lusaka p14
90
39
A serious problem exists in the nation because whereas the marriage Act regulates marriage
courts look to another country for divorce and other domestic relations. This requires that the
laws of the marriage should conform to those in force that country for ham to be in harmony
with that countries divorce laws. There are vast changes in the laws of marriage in England
from whence our marriage laws which have remained static since 1963. This has created
uncertainty about which British statute and precedents to follow92
Section 11 of the High court Act, cap 27 of the laws of Zambia provides that the jurisdiction
of the court in divorce and matrimonial causes shall subject to this Act and any rules of the
court, be exercised in substantial conformity with the law and practices of the time being in
force in England
Professor Himoonga93 writes that practice courts apply where England law that is best known
to them; for instance some apply the MCA 1958, or divorce reforms Act of 1969 instead of
matrimonial causes act 1973, 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 cases. In this
view there appears to be no judicial interpretation of these provisions which imply that
Zambian courts should apply the law in practice in England regardless of its unsuitability to
Zambian values, local circumstances and practices, the most important law on divorce and
other domestic relations in Zambia is the matrimonial causes Act a civil marriage is therefore
one governed by the marriage Act there is also the married woman’s property Act, 1882 which
gives a woman married under Act the right to seek redress through criminal proceeding for
property which she owns separately and solely from her husband. This Act also makes one
spouse competent to give evidence against the other, regardless of the rule which makes spouse
incompetent witness against the other. This instance clearly shows a serious overlooking and
ignorance of the concept of the fact that marriage is to be kept sacred. Sacredness involves the
acceptance by a couple that they now become one and that whatever the couple has belongs to
both of them and that goes in the marriage is a complete preserve of the couple is to exclusion
of all others.
Parental consent; under statutory laws a woman over the age of twenty-one does not require
consent from her parents. It is enough that the boy and girl agree to marry each other. Parties
below twenty-one require parental consent to marry or in certain circumstances the permission
of the
92
93
Ibid p13
Hamoonga N (2019) legal brief on the nature of customary law in Zambia p11
40
High court judge suffices. Anybody has the right to choose the form of his or her marriage, he
or she may choose to marry under any of the two laws which suits them the parents have no
recourse to this kind of situation their consent may not be required94
There is an argument that the ability of Zambians to marry under the marriage Act has also
contributed in a way to the loss of parental influence, for example section 19 (1) provides as
follows; if any parent or guardian whose consent to a marriage is required refuses his consent
a judge of the High court may on supplication being made consent to the marriage and the
consent of the judge so given shall have the same effects as if it had been given by the parental
consent of the judge so shall have the same effects as that given by the person whose consent
is refused
From the analysis it can be argued that this provision to some extent can be seen to deprive the
parents of any influence they may have to the marriage of their children this again goes against
the concept of the sanctity of marriage requires a couple to get parental consent before
contracting a marriage in order to receive blessings from them
Modernization; the general impression among people is that with growth of the towns, cultural
contact and education, divorce is on the increase under statutory marriage. It would appear that
the main source of instability of the marriage in urban areas seems to be weakening of social
control traditional teachings on how to maintain the home and on how to behave
Most modern men enter marriage with very high expectations from their new bride while doing
very little or nothing at all to sustain the marriage95
Assertive women are more assertive these days they are no more submissive they expect from
their men, particularly loyalty, their demands need to be met. A man who cannot satisfy his
woman discarded.
RIGHTS AND OBLIGATION OF SPOUSES UNDER CUSTOMARY MARRIAGE
AND STATUTORY MARRIAGES IN ZAMBIA
Amongst all ethnic groups in Zambia property under customary law required by the husband
is regarded as his sole property, when divorcing the wife can claim nothing but her own
property, as regards the disposal of property while the marriage subsists, husband and wife are
expected to consult together. The husband has the final say. However, since the woman’s
property is kept distinct, she has a certain economic independence. Customary rules do not
94
95
Ndula M (2014) family law in Zambia, UNZA press. Lusaka p156
Ibid p158
41
ordinarily entitle a dead husband who in turn is supposed to look after the children of the
marriage.
This point is Cleary illustrated in the case of Mwiya v Mwiya96 where the court held that a
divorced woman was not entitled to maintenance by her former husband nor was she entitled
to share in his property on the dissolution of marriage under Lozi customary law.
However, under intestate Act 1989 and the Act no 8 which amended the local court Act, cap
29. The position of customary law has been altered giving the local court power to appoint an
administrator whose duty is to share the property between surviving spouse, children and the
payments of a monthly sum for the maintenance of a divorced spouse.
The case in chibwe v chibwe97 is illustrative on this point the parties were married under ushi
customary law, upon dissolution of the marriage the wife was entitled to a reasonable share of
the property acquired during the marriage and also to maintenance
Maintenance - Section 26 of the matrimonial causes Act provides that a court may make orders
for payments of a monthly sum for maintenance of a divorced spouse. In other words, if the
court finds according to the facts of the particular case that the woman is in a stronger position
than that of her husband, then the woman is order to maintain the divorced man.
However under customary law the position of maintenance is that it does not operate both ways
maintenance here is a sole responsibility of a man but In modern society, women are getting
high paying professions jobs even nonprofessional jobs like being engaged in a small scale
business hence are able to maintain a man after divorce who is not in formal employment98
Family interference - in main countries especially Zambia often a spouse may not be able to
adjust with the members of the other person’s family. The mother in law May be too dominant
and interfering and this may not be liked by a spouse. Any addiction takes a spouse completely
out of the life or her family and rips from that person a real sense of accountability, available
and participation in the relationship. The other spouse is left to pick up the slack while trying
to participate in the relationship. The other spouse is left to pick up the slack while trying to
support the spouse into recovery and before you know it burn out occurs. Any addiction if gone
untreated will destroy a marriage. This is regardless of what type of marriage contract one is
under.
Hence according to the above highlighted point it is legitimate to conclude ultimately that
customary law of marriage and divorce has been wrongly placed , this is due to the fact that in
96
(2017) ZR 113
Appeal no 38 of 2000
98
Mushota L (2016) family law in Zambia, cases and materials, UNZA press, Lusaka p263
97
42
spite of modern influence on customary practices of Zambian society, western influence has
not overtaken or wiped out the customs of the Zambian people completely nor has it changed
the fact that divorce rate under both marriages is high, due to the fact that they is increase
interaction of people in Zambia from different walks of life, in the combination of the two
forms of marriages. Hence to consider customary as inferior to statutory marriage or to hold
that statutory marriage are more than customary marriages or to hold that statutory marriages
are more sacred than customary marriages would seem to be contrary to public policy since
law is aimed at fulfilling the aspiration and ideas of society. Though it would be correct to state
that customary law has certain practices that may not be morally acceptable considering the
fact that we are living in the 21st century, the inspection by elders of both families as to whether
the marriage has been consummated the night after the wedding have to be done away with.
Polygamy is also another aspect of customary law which has received a lot of criticism from
HIV/ AIDS activist and people from the world over especially taking into consideration the
high rate of HIV/AIDS in Zambia and the fight for gender equality.
SIMILARITIES BETWEEN CUSTOMARY AND CIVIL MARRIAGES
In doing the field work concerning this research, I discovered the following as similarities
existing between the two forms of marriages in Zambia.

To begin with both customary and statutory marriages are recognized as legal forms of
marriages practiced in Zambia.

Matrimonial causes arising from both forms of marriages are given a platform to be
determined by the courts to which such jurisdiction is given. i.e. customary matrimonial

Causes to be determined by the local court while the high court to determine
matrimonial causes arising from civil marriages.

Both man and woman have the capacity to divorce99 However information given to me
by some local court justices shows that through the case records at most of the local
and subordinate courts in Zambia a high percentage of divorce cases are brought by
women.

Consent. i.e. in a civil marriage the consent of both parties is necessary and if one party
is below 21 years of age, parental consent i.e. mother, father, guardian etc.is required.
99
Bromeley PM (2011) family law (4th ed) Butterworths, London p40
43
While even under customary marriage the consent of parents is also an important or
major factor to validate the marriage.

As regarding custody of children, in both the courts of law have jurisdictions to make
orders in regards to the custody of the children of the family. i.e. under customary law
children are cognate and both parents have access to the children in spite of strong
matrimonial grievances, they belong to both parents. However, children who are below
5 years or school going age are usually granted to the mother, while those going to
school usually remain with their father. The case of Elozabeth soko v patricia mutasa
clearly illustrates the above point, the local court justice ordered that the daughter who
was 6 years old should be in custody of the mother, but the son who was 10 years old
should be free to stay with and visit any of the parents as he wished. Similarly, under
civil law of marriage, the court which hears matters of divorce and maintenance has the
jurisdiction to make orders with respect to the custody of the children of the family.
This simply entails that in both forms of marriages the duty of the court is to concern
itself with the welfare of the children.

Prohibited degree of consanguinity and infinity – these bars exist in both customary law
and statutory laws of marriage, though they are not completely the same in nature and
determination.

Some factors attributing to high divorce rates in both forms of marriage are similar e.g.
Alcohol abuse and adultery among others.
4.9 CHAPTER FOUR SUMMARY
The findings of the study have shown that before Zambia was colonized, marriages were
governed by the indigenous laws i.e. the customary practices. The introduction of a dual legal
system brought about the recognition of both forms of marriages as applicable to Zambia by
law. i.e. Zambia has a dual legal system of laws, customary law and common law, leading to
two types of marriages customary and statutory, most of the statutory laws of marriage are
composed of received laws which in view of the colonial history, is in effect English law. The
English law of marriage applies to Zambia by virtue of section 11 of the High court Act,
100
100
while customary law is recognized and applicable to the country by virtue of section 16 of
Cap 27 of the laws of Zambia
44
the Subordinate court Act101provided that such law is not repugnant to natural justice, Equity
or good conscience and is not incompatible either in terms or by necessary implication with
any written law in force in Zambia.
The study further shows that both forms of marriages have similar causes of divorces such as
adultery, impotence or bareness, alcohol abuse, wilful desertion, separation for two years and
five years among others.
Some similarities existing between the two forms of marriages includes parental consent, both
can be dissolved in the courts of law, court justices have an interest of children affairs as they
decide the matters in both form of marriages etc.
The conflict between customary and civil law marriages exists in variance i.e. share of property
upon dissolution of marriage is not available in some customary marriages but always available
under statutory marriage, Maintenance of a divorced spouse is available under statutory
marriage but not really available under customary marriage, women are protected from
exploitation by their husbands under civil marriages but less or not protected from exploitation
by husbands in customary marriages, civil marriage women are given equal treatment as their
husbands in the eyes of law while customary married women are not given equal treatment as
their husbands i.e. husbands are treated superior. However due to these existing conflicts
between the two forms of marriages, there is need to come up with a codified law in Zambia
which shall sponsor and promote gender equality for spouses married under any form of
marriage. And a law to create fairness to all women divorced under customary marriage to
always have a share of property acquired during the marriage period. And the study shows that
some of the reasons responsible for the existence of these conflict between customary and civil
marriage is as a result of lack of awareness of the status of the law in Zambia, This causes
citizens to be engaging in a form of marriage without full knowledge of the type of marriage
they are going into. Hence mixing up the two forms of marriages bringing conflict between the
two in times of marriage dissolutions.
101
Cap 28 of the laws of Zambia
45
CHAPTER FIVE
SUMMARY, CONCLUSIONS AND RECOMMENDATION
5.0 CONCLUSION AND RECOMMENDATIONS
This chapter will give an overall view as to whether statutory marriages are more superior to
customary marriage and why most scholars and ordinary Zambian people take this view. The
chapter will also make some recommendations as to what the government of Zambia should
do to overcome the wrong perception towards customary marriages including law reforms to
undertake in order to remedy this misconception.
5.1 CONCLUSION
The study noted that In Zambia little attention has been given to the future of customary law
by the government. The status of customary law of marriage and divorce in Zambia is that it is
subject to the repugnancy and incompatibility clauses that are enshrined in a lot of statutory
provisions. This entails that it will only be applied if it is not repugnant to natural justice, equity
or good conscience or where it is incompatible with written law. This status was bustled upon
customary law by the colonial masters but it has continued to reign even after independence.
There is a lot of doubt in the fairness of such a status. As already pointed out the law which
affects many Zambians is customary law so it should be accorded equal and better status like
statutory law. The status of customary law was prompted by lack of understanding of
indigenous law on the part of the colonizer so to filter off the law they did not understand, they
simply advocated that it will not apply if it is incompatible with written law.
The institution of marriage and divorce under customary marriages has not been static but
always dynamic it has continued to undergo drastic changes and the factors responsible for
these numerous changes are multifold the notable ones, however include western influence,
Christianity, education as well as statutory marriages. These factors have caused a tremendous
departure from traditional and this has in main resulted in drop of traditional marriages rituals.
The tradition aspect of marriage relationship as a continuing bond between two kinship groups
has gradually been lost, the emphasis now tends to be shifting to the individual aspect of
marriage as a relationship between two persons it is thus uncommon these days for parents to
choose a marriage partner for their children as parents authority over marriage of their children
is no longer important if no necessary.
Parental consent is becoming more and more unnecessary as compared to how important it was
in the past decades as parties can opt to contract secret marriages popularly known as abduction.
46
This is due to the fact that in the past, parents were responsible for the payments of bride price
whether in kind or cash, but today with increase in education men shoulders this responsibility.
It is also quite evident that cases of divorce have become features under both customary and
statutory marriages. In the past however it was quite rare to hear of divorces. Marriage were
not easily dissolved and the phrase marriage for life. Various reasons explain the alarming
increase in divorce cases, many people contend that there is a breakdown of morals among not
only men but women too who feel they can compete with men hence the notion, if he can cheat
I can also do it.
The other issue contributing to this high rate of divorce cases in Zambia under both marriages
is alcohol abuse- this is one of the causes of divorce in Zambia under both marriages as a large
number of people are in informal employment hence they have enough free time on their hands
to indulge in beer drinking regardless of the day and time.
Some similarities noted between the two forms of marriages includes parental consent to a
marriage contract, prohibited degree of consanguinity and that in both marriages’ spouses are
allowed to seek divorce in the court of law.
5.2 RECOMMENDATIONS
Seeing that customary law influences the lives of majority Zambians, there is need for changes
so that its status will reflect this influence. The following are some of the suggestions to bring
about change.
My recommendations are not entirely new, some of them have already been advanced by other
African scholars in law.
 The need for the government to establish an institution to be educating people who wish
to enter into marriage about the two forms of marriages.
So that they can be voluntarily deciding which type of marriage they are to contract their
marriage under, because they are now fully aware of what that form of marriage is all about.
This would help to reduce cases of divorces. It is noted that many married couples have little
or no idea about statutory marriage but have some information about customary marriage as
they are taught about customs by their traditional marriage counsellors and some church
counsellors. But there is little or no such awareness about statutory marriage.
 Advocating for treatment of the customary law of marriage and divorce as sacrosanct
(sacred).
47
It is also only an attempt to show and point out an injustice that exist as regards that law.
Customary as a whole should be measured by present day needs and future economic
development. The interaction of English law with customary law must not be taken to mean
that it is a two-way process. If English law is to thrive then its application must sometimes be
modified by indigenous law to make it acceptable. It is only when it has been adapted that we
can call it our own law Tanganyika’s magistrates, court Act of 1963102has repealed the pre
independence order in council provisions that were adopted before and after independence
including not repugnant to justice and morality and substitute a new selection, omitting any
such qualification on the application of customary law. In Ghana, the court Act of 1960103
contains no repugnancy clause
 Provisions should be included in the appropriate Acts that determining of customary
law should be a question of law for the court and not a question of fact.
Central legislation based on record statements of customary law or legislation base on fusion
of customary law from other sources, this can be done by conducting research work among the
various custom grouping then discern the essential elements of the different customary laws,
thereafter uniting them by legislation. Those aspects of the law that the legislature would
consider undesirable or inapplicable taking into consideration social and economic standards
should then be left out.
 The other point to note is that under customary law maintenance of a divorced man
does not exist.
The maintenance law Applying to men under customary law will remain a dream as long as it
stands unsupported by other progressive legal provisions, as long as customary marriage can
be contracted and dissolved outside a formal system like that of a statutory marriage the law
will have no effect at all. Customary law should also cater for maintenance of a divorced man
due to the fact that even women do engage in activities that can sustain their livelihood. For
example, a customary marriage is solemnized in a local court and can only be dissolved in
court. This system ensures that every couple is informed of their rights and ensures that every
divorce case is handled in a court of law in this way the operation of customary law where
maintenance is concerned can be wiped out.
102
103
Tanganyika’ courts of Acts of 1963
The courts act of 1960
48
 The central government should set a commission of inquiry to probe existing different
systems of customary law marriages and divorce and come up with a unified customary
practice.
This recommendation is based on the fact that culture and customs are not static but respond
to socio-economic conditions prevailing in a particular society
 Concerning statutory marriage, the Marriage Act must be amended to suit the prevailing
situation in Zambia.
As there are vast changes in the laws of marriage in England from whence our marriage law
came in 1963, when civil law marriage become available to Zambia which not matched at all
with the marriage laws which have remained static since 1963 in Zambia.
49
BIBLIOGRAPHY
TABLE OF STATUTES
Gender based violence act
High Court Act Cap 27
Local Court Act cap 29
Marriage Act cap 50
Matrimonial Causes Act
Matrimonial proceeding and property Act of 1970
Subordinate Court Act cap 28
BOOKS USED
Barnes, J (2014) marriage in a changing society Oxford University press, oxford
Bromeley, PM (2011) family law (4th ed) butterworths, London
Colson, E (2018) marriage and family among the Tonga of northern Rhodesia, Manchester
University press, Lusaka
Maintenance in Zambia (2010 women and law in southern Africa research project.
Mumba, C (2020) customary law of marriage and divorce among the Lenje of central province,
east African publishing house, Lusaka
Mushota, L (2016) family law in Zambia, UNZA press, Lusaka.
Ndulo, M (2018) law in Zambia East African publishing house
Philips, A(2014) survey of African marriage and family life, oxford university press
ARTICLES, JOUNALS AND PAPER REFFERED TO
Aspects of the law of maintenance of children; the case of Zambia, working paper in law
number 250slo
Barnes, J (2017) marriage in changing society. Bens paper no 33. Much
Hamonga N(2019) legal brief on the nature of customary laws in Zambia
Kabesha, M (2012) customary marriage and divorce among the saala of central province,
obligatory essay.
50
TABLE OF CASES
1. Chibwe v Chibwe Appeal no. 38 of 2000
2. Chilanji Mwanamungule v Manchisi Mwanampatisha Local Court Case no. 350 of
2014
3. Corbett v Corbett (2020) 2 ALL ER 33
4. Dorika Kapwaya v Andrew Shimuyandi, Mwembezi Local Court Case no. 387 of 2019
5. Edna Chanda v Mwenda L.C 22/56 (Unreported)
6. Ehinda Mutobela v Paul Mwamba Solwezi Local Court Case no. 328 of 2014
7. Frank Chitambala IV NLRL 28
8. Hyde v Hyden (1866) LRI P 7 & D 130
9. Jane Fulangi v Dickson Mumbinji Local Court Case no. 18 of 2020
10. Kaniki v Jairus (2017) ZR 81
11. Lukasu Phiri v Nilo Mule Solwezi Local Court Case no. 27 of 2017
12. Margret Mumbi v Soka case no.0376 of 2020
13. Muwale v Muwale 5 NLRL 298
14. Mwiya v Mwiya (19770 ZR 113
15. Nand Halumbe v Alfred Mazuba Lusaka Local Court class (B) CASE NO. 323 OF
2018
16. Pugh v Pugh (2016) 2ALL ER 680
17. Sottomayor v De Barros 3 PDI, C.A
18. Suzana Kafwale v Dandi Kafwale Solwezi Local Court Case no. 325 of 2012
19. Velenesi Lungu v Basikolo Phiri case no. 0283/2014
20. Velenica Zulu v Nelson Zulu case 098/2020
21. Ireen Kanala v Newton Pendapa L.C.A 30/93 (Unreported)
22. Hilda v Daka L.C.A 32/92 (Unreported)
23. Walusiku Lisulo v Patricia Anne Lisulo SCZ judgment no. 21/2018
24. Elizabeth Soko v Patricia Mutasa unreported
25. (Re L infants) (2012) 3 ALL ER 1
51
APPENDICES
Appendix 1
Appendix 1: Informed Consent and Questionnaire
Dear respondent,
The questionnaire presented is purely for academic purposes. It is a requirement
for the partial fulfillment of the award of a Bachelors’ Degree of Business Law.
Your cooperation will be highly appreciated.
Section A: Optional
1. Gender: Male [ ] Female [ ]
2. Your Age: ……………………………………………
3. What is your Educational Level? Masters [
Certificate [
] Grade 12 [
]
]
4. What is your Marital Status? Single [
[
] Divorced [
]
] Bachelors [ ] Diploma [ ] College
Grade 9 [
]
Grade 7 [
] Married [
]
Widow [
] Separated
5. Will women in informal relationships need greater legal protection for their rights in future?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
6. Would you prefer a system where polygamy is allowed if the first wife or wives agree to it?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
7. Should the law allow lobola to continue in those communities that use it, or should the law
make it illegal? ……………………………………………………………………………..…..
…………………………………………………………………………………………………
…………………………………………………………………………………………………..
8. If lobola continues, should the new law say anything about the requirement in some
communities that lobola must be returned (in some circumstances) if there is a divorce?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
52
9. Will people who marry under customary law be willing to register their marriages with the
government in order to get a marriage certificate?........................................................................
…………………………………………………………………………………………………
…………………………………………………………………………………………………..
10. Will people who marry under customary law be willing to register their marriages with the
government in order to get a marriage certificate?.......................................................................
…………………………………………………………………………………………………
…………………………………………………………………………………………………..
11. Most customary laws do not have a concept of joint property in a marriage. Will the system
of ‘in community of property’ work for customary marriages in practice?..................................
…………………………………………………………………………………………………
…………………………………………………………………………………………………..
12. Will the system of joint decision-making work for customary marriages in practice? How
can it be best enforced?.................................................................................................................
…………………………………………………………………………………………………
………………………………………………………………………………………………….
13. Do you have any other suggestions on how to give men and women equality in the control
of joint property during marriage?...............................................................................................
…………………………………………………………………………………………………
………………………………………………………………………………………………….
14. Is the High Court the right place for people to get help with customary marriage? Should
disputes about customary marriage be dealt with by magistrates’ courts or community courts
instead?.........................................................................................................................................
......................................................................................................................................................
Thank you for your assistance and cooperation
53