Zambia Institute of Advanced Legal
Education
DOMESTIC RELATIONS
HEAD 8
Felix Chakuamba Zulu
2012/2013 intake
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Domestic Relations Notes
20.08.2012
Introduction
Domestic Relations come about from a family situation or domestic situation. And
domestic relations start from family and a family situation usually starts from
marriage. And because of the development of family law the course will deal with
matters which are not entirely family, like the children born out of a marriage set up.
When divorce is contemplated, there is need to know the place where the marriage
was contracted and the law under which it was solemnised. If that marriage is
recognised as being legal in the country where it was solemnised then our courts can
be used to settle disputes that may arise in the marriage such as maintenance and
custody of the children. Upon such recognition, then even divorce can be entertained
by the High Court based on the grounds under the Matrimonial Causes Act.
For this course we need the following Acts of Parliament and Statutes: 1.
The Matrimonial Causes Act, Act No 20 of 2007;
2.
The Marriage Act Chapter 50 of the Laws of Zambia;
3.
The Matrimonial Causes Rules 1973 (UK) still in use;
4.
The Matrimonial Causes Act 1973 UK Act
5.
The Affiliation and Maintenance of Children Act Chapter 64 of the Laws of
Zambia;
6.
The Subordinate Courts Act Chapter 28 of the Laws of Zambia;
7.
The High Court Act Chapter 27 of the Laws of Zambia;
8.
The Married Women Property Act UK Act;
9.
The Legitimacy Act Chapter 52 of the Laws of Zambia; and
10.
The Adoption Act Chapter 54 of the Laws of Zambia.
What Constitutes a Marriage?
Marriage is the Union of a male and female that is recognised by the jurisdiction in
which the two are and this union should exclude all others. This means when one gets
married, as a husband you do not expect another man to interfere with your wife and
vise versa. Under the Marriage Act, we are saying that the man and woman want to be
together and hopefully start creating a family. And only these that have reached the
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age of 16 years and above may be allowed to marry pursuant to section 33(1) of the
Marriage Act Chapter 50 of the Laws of Zambia.
There is some misunderstanding that is common and that is for a marriage to be
considered as valid there must be children. No you don’t marry for children the aim of
marriage is to live together and not to have children and it is to live together until
death but that sometimes is not possible. Therefore Family Law is by and large meant
to buttress the institution of marriage.
What if the two people come together and start to live together, we know that is not a
marriage but what if they start buying household goods together or have children, the
law must be able to look at these people too and address the matters arising from
their union. It must always find a way of dealing with the outcomes of their cases.
When getting into a marriage, it is a serious issue (business) nobody forces people to
get into marriage they willingly agree to be bound by the promises of the marriage
union, so getting married is very serious. When people get married in Zambia, they
submit their union to the laws of the country apart from submitting to themselves.
Therefore, married people cannot on their own decide to divorce without going to
convince the Court that the marriage has broken down irretrievably and that the
Court orders that the marriage be dissolved. In our jurisdiction, statutory marriages
can only be dissolved by the High Court while customary marriages can be dissolved by
the local courts.
Therefore when a client comes with marital problems the first duty is to find out if
there is a legal marriage in accordance with the Marriage Act Chapter 50 of the laws of
Zambia and the Matrimonial Causes Act 2007. As a prudent lawyer you must ask for
marriage certificate as proof of the marriage, this will also serve you time to know
where the marriage was solemnised, the date and such other details. Thus when filing
documents in a divorce matter a marriage certificate must be filed with the other
required documents, this is so because it is not the intention of the Court to divorce
people who are not married in the first place.
If a foreign marriage, the marriage must be recognised in the jurisdiction where it was
celebrated for the High Court for Zambia to entertain them and to give the required
relief. And if not recognised as a valid marriage in their jurisdiction our Courts will not
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recognise that union too. So you must ask them what type of ceremony they went
through to determine if they have a valid marriage. You must investigate the type of
marriage they have and determine if the same is a valid marriage in their jurisdiction.
There is a common misunderstanding that a marriage is valid only where there are
children of the family. No, you don’t marry to have children but for a couple to stay,
and live together and love each other. It should be noted that in Zambia is only
between female and male human beings.
It should be said that our Courts generally recognise that there are customary
marriages but the Subordinate Courts and the High Court have no jurisdiction as courts
of first instance to hear matters involving these types of marriages except attend to
such marriages on appeal from the Local Courts or to deal with the residual of the
marriage. Chibwe v Chibwe.
It should also be said that there are some churches that issue their own marriage
certificate such as the catholic church, the court in such a case may accept the
production of such certificate as prima facie evidence of the marriage but the Court
may go further to investigate and ask what steps were taken for the cerebration of the
marriage so as to establish if the marriage qualifies or passes as one under the
Marriage Act.
And there are churches that will ask the couple to register their marriage at the local
council as well but they will still give them their own certificate, this is so because
they may not be a registered church or the pastor may not be gazetted to cerebrate
marriages under the Marriage Act or just as a matter of record for the church.
27.08.2012.
Divorce.
The Ground for Divorce
Sometimes a marriage may not work and the two people may want to separate through
divorce. In Zambia divorce of a statutory marriage is done through the Matrimonial
Causes Act of 2007 which is closely based on the English Matrimonial Causes Act 1973.
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There is only one reason for divorce, which we shall deal with in detail below, and
that is that the marriage has broken down irretrievable. This means that the
marriage broken down in such a way that you cannot salvage or patch it up. This is
pursuant to section 8 of the Matrimonial Causes Act 2007 and it provides:
“A petition for divorce may be presented to the court by either party to a
marriage on the ground that the marriage has broken down irretrievably.”
There is only one ground under the Act on which a spouse can divorce the other and
that is that the marriage has broken down irretrievably. The statement that the
marriage has broken down irretrievable when taken by itself is rather misleading, as
the courts will not dissolve a marriage, however clear it may be that the marriage has
broken down irretrievably unless the Petitioner additionally satisfies the court of one
or more of the five facts, to be discussed below. Thus in Richards v Richards1 the
husband suffered from mental illness. He assaulted his wife, and exhibited symptoms
of moodiness, taciturnity and so on. Ultimately the wife left. Although the Judge
found that the marriage had broken down irretrievably, he nevertheless refused to
grant a decree since the wife had not established any fact.
Although the facts of divorce are strictly speaking not a ground or grounds for divorce,
the Matrimonial Causes Act, 2007 provides that the establishment by a Petitioner of
any one of the facts in section 9 will raise a presumption that the marriage has
broken down irretrievably, unless the contrary can be proved by the Respondent.2
The onus in practice thus therefore shifts to the Respondent to prove that there has
not been an irretrievable breakdown of the marriage.
Facts Evidencing the Irretrievable Breakdown of the Marriage
The Matrimonial Causes Act No 20 of 2007 provides that it is the duty of the court to
inquire, so far as it reasonably can, into the facts alleged by the Petitioner and into
any alleged facts by the Respondent.3 This section thus implies that the function of
the court is in theory inquisitorial, and it is not obliged to accept the parties’
uncontradicted evidence; the court must therefore weigh the evidence before it, and
if it deems necessary, go a step further to get at the truth. In practice the courts will
1
[1972] 1 W.L.R. 10203
s. 9 of the Matrimonial Causes Act No 20 of 2007
3
s. 9(3) of the Matrimonial Causes Act No 20 of 2007
2
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usually inquire into only the relevant facts, and not into every item of evidence
adduced before it.
In the case of Grenfell v Grenfell4 a wife had petitioned for divorce on the fact of
unreasonable behaviour. The husband denied the allegation but cross-petitioned for
divorce relying on the mutually admitted fact that the parties had lived apart for five
years. It was held that he was entitled to a decree. A relevant fact, the separation had
been proved, and it was admitted that the marriage had broken down irretrievably.
The court rejected the wife’s arguments that it was obliged to enquire into her long
series of complaints about the husband’s conduct. Given the admissions a divorce was
inevitable, and her allegations irrelevant.
The facts alleged by the Petitioner will be those, which he claims, entitle him to
divorce; those alleged by the Respondent will be intended to provide an answer
thereto. In particular, the Respondent may allege facts on the basis of which she
hopes to establish that the marriage has not broken down irretrievably.
The Matrimonial Causes Act No 20 of 2007 provides that one or more of the following
five facts must be proved by the Petitioner if the court is to be satisfied that the
marriage has irretrievably broken down5:
a)
That the Respondent has committed adultery and the Petitioner finds it
intolerable to live with the Respondent;
b)
That the Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent;
c)
That the Respondent has deserted the Petitioner for a continuous period of
two years immediately preceding the presentation of the petition;
d)
That the parties to the marriage have lived apart for a continuous period of
at least two years immediately preceding the presentation of the petition and
the Respondent consents to a decree being granted (two years separation); and
4
5
[1978] Fam. 128
s. 9(2)(a)-(e)
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e)
That the parties to the marriage have lived apart for a continuous period of
at least five years immediately preceding the presentation of the petition (five
years separation).
These facts will now be examined in detail
a)
That the Respondent has committed adultery and the Petitioner finds it
intolerable to live with the Respondent. Section 9(1)(a) of the Matrimonial
Causes Act No 20 of 2007.
This means that you have brought into the marriage a third party who was not
expected in the marriage and that the Petitioner finds intolerable to live with you. It
is not the adultery that is the issue but that the Petitioner finds it intolerable to live
with the Respondent as a result of the adultery. You must as a lawyer find out if they
are only upset or are finding it intolerable to live with their spouse, let them tell you
in their own words and way how they feel don’t tell them what intolerable means.
There are, therefore, two elements here, firstly that the Respondent committed
adultery6 and secondly the Petitioner finds it intolerable7 to live with the Respondent
(as a direct consequence of the adultery and not for some other reason8). It is
necessary to prove the fact of the Respondent’s adultery, and that the Petitioner finds
it intolerable to live with the Respondent and not mere suspicion of adultery. Why
this second element? The drafters of the Matrimonial Causes Act 2007 knew that not
every adulterous act causes a marriage to irretrievably break down. [State Counsel
Ndhlovu’s advice: ‘don’t get involved, be a lawyer only.’] See Caroline Sikazwe v. Ian
Sikazwe (Respondent) and Jenifer Nkonde (co-Respondent) - not contested. [Note:
Wachtel v Wachtel [1973] :
“It was not now essential, as it used to be, to persuade the court that an
association between a spouse and a member of the opposite sex had resulted in
actual sexual intercourse because the association itself might amount to
conduct which led the court to conclude that the other spouse could not live
6
“Willing sexual intercourse between a married person and one of the opposite sex” S v. S [1962] Sexual intercourse
means penetration of female by male however brief, see Denis v Denis [1955] CA
7
See Goodrich v Goodrich [1971] where it was held that the test was subjective i.e. that this particular Petitioner finds
it intolerable to live with the respondent not a “reasonable” Petitioner.
8
But Cleary v Cleary [1974] CA; Held (reluctantly) that 2nd element does not have to be caused by 1st.
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with the one who had formed the association. Such an association could be more
destructive of the matrimonial relationship than a casual act of adultery.”]
The courts have not presented a precise definition of adultery, but have alluded to its
elements, that is, adultery will only be deemed to exist if there has been voluntary or
consensual intercourse between the married person and a person (whether married or
unmarried) of the opposite sex not being the other’s spouse. The best proof of
adultery is finding the Respondent in the act (sexual act) which is not possible the
second best is strong circumstantial evidence of the adultery such children born out
the adultery or the contracting of an STD by the Respondent.
Additionally, ‘adultery is not in itself to be regarded as demonstrating breakdown
unless the Petitioner can in addition satisfy the court that the act of adultery is so
offensive and deeply wounding to him or her that any further married life with the
Respondent is unthinkable’.9
It should be stated that the standard of proof for adultery is very high. In the event
that the alleged fact is denied the Petitioner will have to convince the court that
adultery has been committed, usually on strong circumstantial evidence, such as the
birth of a child of whom the husband cannot be the father or with another woman and
the spouse is not denying it or the contracting of an Sexual Transmitted Infection by a
spouse is a strong circumstantial evidence that the spouse committed adultery, what
remains though to be proved is with whom.
The party wishing to rely on section 9(1)(a) for the adultery committed by the
Respondent must bring the petition within 6 months after it becomes known to them
that the Respondent had committed adultery. This is pursuant to section 12 of the
Matrimonial Causes Act. If the Petitioner continues to live with the Respondent for
more than 6months after it becomes known to them that the Respondent committed
adultery the court takes the position that the adultery was tolerable to the Petitioner.
b)
Behaved in such a way that the Petitioner cannot reasonably be expected
to live with the Respondent. Section 9(1)(b) of the Matrimonial Causes Act
2007
9
per Lord Stow Hill, Hansard (H.L), Vol. 303, col. 1229
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There are two things here: the Behaviour of the Respondent and the Reasonable
expectation. The behaviour must be such that the Petitioner cannot be reasonably
expected to live with the Respondent. This is the most used reason for divorces
because it is very wide in application.
The behaviour must be the one that goes to the root of the marriage and is not
expected for a married person. The Question of reasonableness may actually be
subjective. What one spouse may take to be reasonable may be unreasonable to
another spouse. For example, if one spouse tolerates for years quarrels with the other
which end up in fights, they may not succeed on the ground for divorce for
unreasonable behaviour by the other spouse unless they can adduce evidence to the
court that there is something more that has arisen in the near past. The second
element is decided in relation to a “normal or right thinking person”. Thus in
Livingstone-Stallard v Livingstone Stallard10 [1974] Dunn J said that the question
that must be answered in the affirmative is
“Would any right thinking person come to the conclusion that this husband has
behaved in such a way that this wife cannot reasonably be expected to live with
him, taking into account the whole of the circumstances and the characters and
personalities of the parties?”
There is an objective element to the test here but it also takes into account the
characters and personalities of the parties concerned. Thus a timid Petitioner may not
be expected to endure a level of conduct that a more forceful Petitioner could
withstand. Similarly, the Petitioner’s own behaviour in e.g. provoking Respondent’s
behaviour is relevant.
[Somanje v Somanje [1972] ZR 301. High Court held that mere unhappiness in a
marriage did not establish irretrievable breakdown. The wife had brought a petition
for divorce on the grounds that her husband’s conduct had been such that she could
not reasonably be expected to live with him. The petition was dismissed.] Note also
s.13 where parties live together for six months or less after the last act complained of
- this will be disregarded by the court in determining if the Petitioner cannot
reasonably be expected to live with the Respondent.
10
The husband made a long list of trivial complaints including disputes about washing underwear and “drinking with
trades people”.
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When examining the instructions that there is intolerable behaviour, counsel must
examine the complaint carefully because one of his duties, as counsel is to preserve
marriages. The behaviour must be such that it affects the institution of marriage. In
some cases there may only be the need for counselling therefore as an officer of the
court you should first try to reconcile the couple as the institution of marriage must
always carry more weight than the need to divorce. Counsel must therefore balance
bad behaviour against the maintenance of the marriage.
Bad behaviour may, however, be in the form of violence from either of the parties. It
may be dependent on a single bad behaviour of a party such as the molestation of a
child. Urinating on the bed after a heavy drink does not go to the root of the marriage
and cannot be used as such a reason for a divorce.
According to section 6(1) of the Matrimonial Causes Act No 20 of 2007 no petition for
divorce may be presented to Court unless, at the date of the presentation of the
petition one year has passed since the parties got married. However, where matters
have occurred before the expiration of one year from the date of the marriage, the
Court would entertain a petition for divorce. The Petitioner have to seek leave of
Court before bringing the divorce petition.
03.09.2012.
c.)
That the Respondent has deserted the Petitioner for a continuous period of
at least two years immediately preceding the presentation of the petition
section 9(1)(c) of the Matrimonial Causes Act 2007.
This is when one spouse moves out from the matrimonial house and that spouse does
not want to be contacted by the other spouse and they do not want to be found by the
other party. The parties start to live as if the two are not married at all.
Thus, what is desertion? Two things are critical: intention - it must be shown that it
is not the Respondent’s intention to come back e.g. they close the joint bank account,
takes all their belongings, they leave their wedding rings, did not leave anything in the
house to come back to etc; No Support: financial, emotional support and
contractibility/communication - to make important family decisions e.g. schooling of
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children, change of jobs. Desertion: The Respondent voluntarily and without
reasonable cause abandons the Petitioner against his/her will and with intention of
permanently ending the co-habitation. Here are four elements:
(a) The de facto separation of the spouses for at least two years, the parties must
be physically living apart;
(b) Animus deserandi - the intention of the deserting party to remain separated
permanently. the deserting spouse must have the requisite intention, have the
capacity to form that intention;
(c) The absence of consent from the deserting party, the separation must not have
taken place as a result of an express or implied agreement between the parties;
and
(d) The absence of any reasonable cause for withdrawing from co-habitation by
deserting spouse, the deserting spouse must not have had a good cause for
leaving.
In a nutshell Desertion is where a spouse separates oneself from the other spouse so
that they live as independent beings. The parties start to live as if they are not
married at all there is no cohabitation as man and wife.
The desertion must be for a continuous period of two years there should be no breaks
in between then the desertion has been broken. When there is desertion there is no
sex.
There is also Constructive desertion which does not happen so mush in our
jurisdiction but this is where the two are still living under one roof but do not want to
do anything together to do with each other. It is also where the Respondent behaves in
such a way as to compel the Petitioner to leave the matrimonial home against his/her
wish.
In Constructive desertion you may be living together but do not want anything to do
with other. You can be living in separate rooms or have separate beds in the same
room but yet not have any physical, emotional or indeed talk to the other part at all.
And the two years must be a continuous period and not broken up at any time.
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From section 14(1) of the Matrimonial Causes Act 2007, a married person is deemed to
have wilfully deserted that other party without just cause or excuse, where the
person’s conduct constitutes just cause or excuse for the other party to the marriage
to live separately or apart, and occasions that other party to live separately or apart.
This shall be constructive desertion even when the married party may not in fact have
intended the conduct to occasion that other party to live separately. The desertion
will however be broken should they decide to cohabitate.
d.)
The parties have lived apart for continuous period of at least two years
immediately preceding the presentation of the petition (‘two years’
separation’) and the Respondent consents to a decree being granted.
Section 9(d) of the Matrimonial Causes Act 2007.
The parties have agreed to living apart and they both consent to the divorce. The
parties must agree that they consent to the dissolution of the marriage and that they
will not contest the petition. The Respondent must be given sufficient information to
enable them understand the consequences to them for consenting to the decree being
granted and the steps which the Respondent must take to indicate that they consent
to the grant of the decree, this is provided for under section 16 of the Matrimonial
Causes Act 2007.
Living apart there must be no break, not even temporary, even if the break was after
2 years living apart. No cohabiting, no sexual contact living separately each doing their
own thing, living their own lives, two households. There can separation here as in the
above even where the two are living under the same roof as long it can be shown that
they are living in such a way that they can be said to have established separate
households e.g. cooking separately. Generally, this means that any sign of a communal
or joint life must be absent. Thus in Le Brocq v Le Brocq [1964] Harman L.J. said:
“there was a separation of bedrooms, separation of hearts - but one
household was carried on.”
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Here the wife excluded the husband from the bedroom by a bolt on the door and they
spoke only when necessary but she cooked his meals and he paid her weekly
housekeeping.11
In Santos v Santos [1972] it was held:
“It is necessary to prove something more than that the husband and the wife
are physically separated … the relevant state of affairs does not exist
whilst both parties recognize the marriage as still subsisting.”
That is to say the concept of living apart does not only entail the physical separation
of the parties. Also, there may be a communal life but NOT as man and wife - see
Fuller v Fuller [1973]12
Section 17(1) of the Matrimonial Causes Act 2007 defines separation as regards its
application to section 9(1)(d) above and 9(1)(e) below as even that which would have
happened because of the action of one party to the marriage only.
e)
That the parties to the marriage have lived apart for a continuous period of
at least five years immediately preceding the presentation of the petition
(‘five years’ separation). Section 9(e) of the MATRIMONIAL CAUSES ACT 2007.
Surely there is no marriage there, there is no other explanation. So as a lawyer you
must listen to what has been happening between the couple in the last five years. For
example if the wife tells you she is working in Kuwait on a five year contract there is
no separation there. When the court looks at 5 years of separation it becomes
apparent or self evident that there is no marriage as the parties have not cohabited
for 5 years. You only have to prove that the parties have lived apart for a continuous
period of 5 years.
Section 18(1) of the Matrimonial Causes Act 2007 provides that in a petition for divorce
in which the Petitioner alleges five years separation the Respondent may oppose to
11
Similarly Mouncer v Mouncer [1972] - Parties had separate bedrooms. W did not wash H’s clothes but she cooked for
family & they took meals together. Both cleaned house. H did not move out as he wanted to see and care for the
children. Held: parties were still living together in the same household.
12
Four years after W left H to live with another man, H became ill and could not stay by himself. H moved in with W
and boyfriend as a lodger so W could nurse him. W slept with boyfriend in separate bedroom but she cooked and
washed for H. Held: Parties NOT living with each other in the same household as this phrase meant living with each
other as H and W.
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the grant of a decree of the dissolution of marriage on the ground that that if granted
it would result in grave financial or other hardship to the Respondent and that it would
in all the circumstances be wrong to dissolve the marriage the court would dismiss the
petition.
As a lawyer, you should listen to what the client is telling you is the reason for the five
years separation and you explain what the five years separation actually means to the
clients. You must also know a counsellor and if possible taking a course in counselling
would be an added advantage because many times the client may in fact need
counselling and not a divorce.
In proving the above five (5) facts for the divorce you have to have evidence, there
must be strong evidence to prove that the spouse for example has committed
adultery and if you don’t have the real evidence you must have credible
circumstantial evidence such as children of the adulterous affair.
This evidence that you have is not part of the pleadings (the petition for divorce
should not have evidence). Hard Facts and evidence are two different things for
example the persons has left for two years is a fact but to prove it you must use
evidence.
Presumption of Death
After seven years of absence of a party to a marriage you can go to court pursuant to
section 24 of the Matrimonial Causes Act 2007. This is not a fact to rely on to get
divorce per se but to get a decree of presumption of death and a dissolution of the
marriage. There is no need to divorce as death automatically ends a marriage and the
remaining spouse becomes a widow or widower as the case may be.
10.09.2012.
As counsel you should never get involved in your client’s affairs let them explain their
issues you just take note of the issues and advise at the end. Do not laugh it out when
what you are told seems fun it is not fun to the client it is serious that is why they
have come to you and want the divorce.
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Sometimes clients come because they need to talk to someone so you must be able to
assist in that regard as well. Once you have gotten the story and it is one such that the
client needs a divorce, you must arrange your facts in such a way that the ground has
been established for a divorce.
When you get the instructions to prepare it is upto you as counsel to prepare the
Divorce Petition. A petition is a court document and it should therefore look like a
court document. If it does not look like a court document it shall/should be rejected
by the Divorce registry. The document should always answer to what it says it is.
The Petition for Divorce or Divorce Petition or petition for the Dissolution of Marriage
must tell the story of the parties such that if the story does not flow or appears
incomplete then you may have to redo it. The petition tells the story of the two
people that got married until the time that their marriage broke down irretrievably.
So the petition must at least contain the following information:
(1)
Names of parties to marriage i.e. the Petitioner and the Respondent. In the
case for adultery the party must identify the other person that the
Respondent was in an adulterous relation with and they must be named as the
Co-Respondent. In a Response or Reply by the Respondent where the
Respondent states or alleges that the Petitioner that was involved in an
adulterous relation that part will be identified in the Reply or Response as the
Party Cited.
(2)
Date and place of marriage
(3)
If claim is for a polygamous marriage – such declaration, name and address
of other spouse, date and place of marriage or such if not known;
(4)
Last address where the parties lived together;
(5)
Domicile of the parties, The Jurisdiction of the Court may be based on the
Jurisdiction of the parties. Jurisdiction Based on Domicile Statement that
Petitioner and Respondent in jurisdiction and if Respondent domiciled is
relied on a statement as to Petitioners domicile
Jurisdiction Based on Residence Statement that Petitioner or Respondent
resident in jurisdiction for one years prior to presentation of Petitioner and if
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Respondent residence relied on as statement as to Petitioners country of
residence for that period – address and length of residence must be given for
relevant parties.
(6)
Occupation and present addresses of the parties
(7)
Whether there are any children of the family alive and if so their names and
dates of birth if under 8 or that they are over 16. In the case of minor
children over 16 where they are receiving instruction
(8)
A statement in husbands petition that no other child now living has to his
knowledge been born to the Respondent during the marriage; and If it is
wife’s petition that no other child now living has been born to her during
the marriage and in EITHER CASE name and date of birth of that child or
that he is over 18 required.
(9)
In the case of any dispute as to whether a child is a child of the family that
there is such a dispute.
(10)
Whether there has been previous proceedings in any court in Zambia or
elsewhere with reference to the said marriages or to any children of the
family or any property of either or both of them and if so the nature of the
proceedings, the date and effect of the decrees or order made and whether
there has been any resumption of cohabitation since.
(11)
Whether to the knowledge of the Petitioner there are any proceedings
outside Zambia to which the petition relates and which could affect its
validity or subsistence. Details of date, tribunal, orders are required.
(12)
Where the fact relied on is of 5 years separation particulars or any
agreement or arrangement being made or is proposed to be made for
support of either or both parties or children.
(13)
A statement that the marriage has broken down irretrievably
(14)
The facts on which it is sought to satisfy court that marriage has broken
down irretrievably setting them out with sufficient particularity but not the
evidence by which they are to be proved. Trivialities should not be alleged.
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(15)
If Petitioner intends to adduce evidence that other person was convicted
of an offence or committed adultery or be named father of a child in
matrimonial proceedings A Statement of such intention giving date of
conviction of finding, the court and the proceedings and the issue in
proceeding to which the conviction related.
(16)
If adultery is alleged the name and address of co-Respondent, particulars
of the adultery and a statement that the Petitioner finds it intolerable to
live with the Respondent.
(17)
If unreasonable behaviour is alleged and a course of conduct of unkindness
and neglect is relied upon – General allegations of the unreasonable
behaviour must be pleaded in separate paragraphs and chronologically.
(18)
A prayer setting out the relief claimed:
Which may include the following:
(a)
The dissolution of the marriage;
(b)
Claim for custody of a child;
(c)
Claim for maintenance pending suit
(d)
Financial provision order for a child
(e)
Secured or unsecured periodical payments or lump sum
(f)
A property adjustment order for the transfer or settlement of
property or a variation of a settlement order
(g)
Costs, must tell the court who will pay for the costs of the divorce
can therefore pray for the Respondent to pay the costs or that each
pays for their costs.
DOCUMENTS to be filed into Court for the Divorce by the Petitioner are:
1.
The Petition
2.
The Marriage certificate
Felix C Zulu 2012/13
Page 17
3.
The Certificate of Reconciliation
4.
The Notice of Proceedings
5.
The Acknowledgement of Service
6.
Statement as the Arrangement for the Children of the Family
7.
Consent where the Respondent does not intend to contest the marriage.
IN THE HIGH COURT FOR ZAMBIA
AT THE PRINCIPAL REGISTRY
(DIVORCE JURISDICTION)
2012/HP/D.10
BETWEEN:
FRANK TEMBO
PETITIONER
AND
JOYCE KABWE TEMBO
RESPONDENT
___________________________________________________________________
PETITION FOR DISSOLUTION OF MARRIAGE
___________________________________________________________________
(Note never include the law after the above since there is only one law that we use for
divorces in Zambia it is therefore ok to leave it just as is above or just a Divorce
Petition)
Where there is adultery as the reason for the divorce the names must be as follows
indicting the Co-Respondent.
FRANK TEMBO
PETITIONER
AND
JOYCE KABWE TEMBO
RESPONDENT
STEPHEN BANDA
CO-RESPONDENT
And when Replying the Respondent is the one that alleges that there Petitioner was in
fact in adulterous affair they must return the Reply naming the third party as follows:
Felix C Zulu 2012/13
Page 18
FRANK TEMBO
PETITIONER
AND
JOYCE KABWE TEMBO
RESPONDENT
GRACE MWALE
PARTY CITED
The first paragraph should always state that:
The Petition of FRANK TEMBO (The Petitioners’ name) SHOWEST that:
Paragraph 1
On the 16th day of September 2008, the Petitioner was lawfully married to JOYCE
KABWE TEMBO (can add the maiden name here eg JOYCE KABWE TEMBO nee KABWE
(hereinafter called "the Respondent") at the Office of the Registrar at Lusaka Urban
District Council or at Saint Ignatius Catholic Church, at Lusaka in the Lusaka Province
of the Republic of Zambia. (In this paragraph you were trying to say that the two
were legally married pursuant to the Marriage Act CAP 50 of the laws of Zambia)
Paragraph 2
The Petitioner and the Respondent last cohabited together as husband and wife at
Plot No 22 Chitemene Road Northmead, Lusaka. In this paragraph intends to bring
forth the fact that the two last lived as husband and wife at such and such an address
and if still in the same house the court should be aware of the potential conflict.
Paragraph 3
Both the Petitioner and the Respondent are domiciled in Zambia. This paragraph is
intended to bring and establish the domicile of the parties and thereby inter alia
establish the jurisdiction of the Court on the parties.
Paragraph 4
The Petitioner is a Bank Manager with Zambia Bank Limited and resides at Plot
number 22 Chitemene Road Northmead, Lusaka and the Respondent is a Director
Energy at the Zambia Electricity and Water Company Limited as and resides at Plot
No 12345 Woodlands, Lusaka The paragraph establishes the occupation of the
Petitioner and that of the Respondent and where both are currently resided).
Felix C Zulu 2012/13
Page 19
17.09.2012.
Paragraph 5
This paragraph indicates if the union had been fruitful, whether there have been
children of the family this includes adopted children as they are also considered as
children of the family. This includes children of the family that are not biological
children of either party as these brought into the marriage and are accepted as
children of the family during the subsistence of the marriage. It also includes these
living now and deceased.
E.g There are two (2) children of the family now living namely: (a)
Mirriam Tembo, Female born on 1st August 2001 now aged 11 years old .
(b)
John James Tembo, male born on 3rd March 2007 now aged 5 years old.
Can include what the children are currently doing so if in school may mention
which school and what grade.
Paragraph 6
That no other children have been born to the Petitioner during the substance of
the marriage (if women). No other child now living has been born of the
Respondent during the marriage as far as is known to the Petitioner. But if there is
you mention them as above name, sex when born and what they are doing. These born
before the union of the two may be put here. If the Respondent or Petitioner came
with a Child into the marriage you add ‘except such and such who were/was born to
the Respondent/Petitioner on such and such a day(must give the full details of the
child as above i.e. age, sex what they are doing’.
If there is a child born during the substance of the marriage must add ‘except such
and such who the Petitioner is contesting is not the child of the family.’ A product of
transgression during the marriage but known by the other party must be named.
Paragraph 7
This is the paragraph that should mention whether there has been any previous
proceedings as regards that marriage that may affect these proceedings such as
Felix C Zulu 2012/13
Page 20
property settlement or maintenance proceedings. ‘There have been no previous
proceedings in any court in the Republic of Zambia or elsewhere with reference to
the said marriage or between the Petitioner and Respondent with reference to any
property of either/both of them.’ If there is you say and you mention the cause
number.
Paragraph 8
There are no proceedings continuing in any country outside Zambia which are in
respect of the marriage/ are capable of affecting its validity/subsistence. If there is
you say
Paragraph 9
No agreement/arrangement has been made or proposed to be made between
parties for the support of the parties/children and the custody of the children or
arrangement has been made as to custody of the children. However if an agreement
or arrangement has been reached or made you mention that here.
10.
The said marriage has broken down irretrievably as hereinafter alleged. Here
you to specifically state that the marriage has broken down irretrievably and nothing
else.
11.
You tell the Court why that marriage has broken down irretrievably using the
reasons given above such as adultery or unreasonable behaviour. The Petitioner and
the Respondent have lived apart for a continuous period of at least in excess of
two years immediately preceding the presentation of this petition. Under this
paragraph you have the particulars of the above not the evidence but the facts listed
in order. For example on such and such day the Respondent committed adultery with
the co-Respondent and on such and such a day the Respondent and co-Respondent
repeated the adultery. In this section you are suppose to say how or what led to you
discovering the act etc. There you just say the facts, even the circumstantial staff
should be mentioned here.
The Petitioner therefore prays: - this is highlighted and need not be in a numbered
paragraph as the others above but the Petitioner must tell the court what they want
the court to do.
Felix C Zulu 2012/13
Page 21
(a)
That the said marriage be dissolved.
(b)
That the Respondent and Petitioner to have joint custody of the children
of the family.
(c)
That each party bears its own costs.
Dated at Lusaka this
Signed:
day of
............................................
Petitioner
FRANK TEMBO
This Petition is drawn up by:
To:
2012
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
The Respondent (must have the address of the Respondent here if they are
represented by a lawyer and you are aware of that you can use the law firm’s
service address here. The Petition should have a jacket to complete it.
IN THE HIGH COURT FOR ZAMBIA
AT THE PRINCIPAL REGISTRY
(DIVORCE JURISDICTION)
2012/HP/D.10
BETWEEN:
FRANK TEMBO
PETITIONER
AND
JOYCE KABWE TEMBO
RESPONDENT
___________________________________________________________________
PETITION FOR DISSOLUTION OF MARRIAGE
___________________________________________________________________
The Petition of FRANCK TEMBO SHOWEST that:
Felix C Zulu 2012/13
Page 22
1.
On the 15th day of January 1996, the Petitioner, FRANCK TEMBO, was lawfully
married to JOYCE KABWE TEMBO (hereinafter called the “Respondent”), at
the Office of Registrar at the Lusaka Civic Centre in the Lusaka City and
Province of the Republic of Zambia.
2.
The Petitioner and the Respondent last lived together as husband and wife at
Plot number 1234 Kamwala, in the Lusaka City and Province of the Republic of
Zambia.
3.
The Petitioner and the Respondent are both domiciled in Zambia.
4.
The Petitioner is Managing Director with Zambia Company Limited in Lusaka
and he resides at the matrimonial home on Plot number 1234 Kamwala and
the Respondent is a Sales Executive with Lusaka Sales Limited and is currently
residing at Flat number 6789 Nyamba Yanga, Lusaka.
5.
There are two children of the family now living, namely, Franck Tembo Jr, a
boy born on the 16th day of June 1998 and Mary JOYCE KABWE TEMBO, a girl,
born on the 21st of April 2000.
6.
No other child now living has been born to the Respondent during the
marriage so far as is known to the Petitioner.
7.
There are or have been no previous proceedings in Zambia or elsewhere with
reference to the same marriage or between the Petitioner and the
Respondent with reference to any property of either or both of them.
8.
There are no proceedings continuing in any country outside Zambia, which
are, in respect of the marriage, capable of affecting its validity or substance.
9.
An agreement and arrangement has been made and is proposed to be made,
between the parties for the support and maintenance of the Respondent and
the children of the family.
10.
The marriage has broken down irretrievably.
11.
That the parties to the marriage have lived apart for a continuous period of at
least two (2) years immediately preceding the presentation of this petition
and the Respondent consents to a decree being granted.
Particulars:
(i)
The parties in or about December 2011 agreed to live separately.
(ii)
The parties have since been living separately.
(iii)
The Respondents consents to the dissolution of the marriage.
Felix C Zulu 2012/13
Page 23
12.
The Petitioner now (or therefore) prays:
(i)
That the said marriage be dissolved
(ii)
That the Petitioner be granted primary custody of the
children of the family and the Respondent shall have
reasonable access to them.
(iii)
That there be property settlement.
Dated at Lusaka the
day of
2014
........................................................................................
PETITIONER
This Petition is drawn up by:
TO:
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
The Respondent
Joyce Kabwe Tembo
Box 5647,
Lusaka
Pursuant to section 6(1) of the Matrimonial Causes Act No 20 of 2007 there shall be
no petition for divorce presented to court within 1 year of the marriage. However
section 6(2) provides that nothing shall prohibit the presentation of the petition on
based on the matters that have occurred before the expiration of one year. In this
regard one needs to apply for leave on the ground that the case is one of exceptional
hardship suffered by the Petitioner or of exceptional depravity on the part of the
Respondent.
Felix C Zulu 2012/13
Page 24
You file the following documents for the above application:
(a)
An Originating Application
(b)
An Affidavit in Support stating
•
The grounds of the application
•
Particulars of hardship
•
Whether any previous application has been made for leave to present a
divorce petition
•
Whether and if so what attempts have been made for reconciliation
•
Particulars of any circumstances which may assist court in determining
whether there is any prospect of reconciliation.
•
Date of birth of the parties
•
Whether there are any children of the family
(c)
Certificate of Reconciliation.
(d)
Notice of making of application for leave to present divorce petition within
three years of marriage
(e)
Acknowledgement of Service.
Samples of Documents you may lodge when the divorce is within a year of the
marriage:
IN THE MATTER OF A PROPOSED PETITION FOR DISSOLUTION OF MARRIAGE
ORIGINATING APPLICATION FOR LEAVE TO PRESENT DIVORCE
PETITION WITHIN ONE YEAR OF MARRIAGE
(PURSUANT TO SECTION 6 OF THE MATRIMONIAL CAUSES ACT 2007)
I FRANK TEMBO of Plot 2386, Longolongo Road, Lusaka in the Republic of Zambia
apply to the High Court of Zambia for an Order:
That I the said FRANK TEMBO be at liberty to file a petition for dissolution of my
marriage with the said JOYCE KABWE TEMBO solemnized on the 20th Day June of 2012
before the expiration of one year from the date of the said marriage.
The grounds on which I claim to be entitled to the Order are set out in my affidavit
filed with this application.
Felix C Zulu 2012/13
Page 25
The name and address of the person whom it is intended to serve this application is
JOYCE KABWE TEMBO of Plot 23320, Longolongo Road, Lusaka in the Republic of
Zambia.
My address for service is Plot 2386, Longolongo Road, Lusaka in the Republic of
Zambia.
Dated at Lusaka the
day of
2012
Per: _____________________________
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
AFFIDAVIT IN SUPPORT OF ORIGINATING APPLICATION FOR LEAVE TO PRESENT
DIVORCE PETITION WITHIN ONE YEAR OF MARRIAGE
I FRANK TEMBO of Plot 2386, Longolongo Road, Lusaka in the Lusaka Province of the
Republic of Zambia do hereby MAKE OATH and SAY as follows:
1.
That my full names and address are as given above.
2.
That I am a Zambian National.
3.
That I am the Petitioner in this cause and thus competent to sweat this my
affidavit.
4.
That I was born on the 10th day of May 1967 and I am informed by Joyce Kabwe
Tembo and verily believe that she has attained the age of 18 years.
5
That I married Joyce Kabwe Tembo on 20th June 2012 at St John’s Church at
Stand 4326 Makeni and that there is one child of the family named Jonah Tika
Tembo born on 5th day of August 2010 who is now residing with the said Joyce
Kabwe Tembo.
Felix C Zulu 2012/13
Page 26
6.
That there has been no previous application either by the Respondent or myself
for leave to present a petition for dissolution of marriage within 1 year from
the date of marriage.
7.
The ground on which I apply to the Court for leave to present a petition for
dissolution of marriage within 1 year from date of my marriage to the
Respondent is the exceptional hardship suffered by me.
8.
That the Respondent did on the 21st day of June 2012 refuse to let me in the
residence that we jointly shared.
9.
That the Respondent does on each Monday of the week insists on staying the
entire day in bed claiming it to be her absolute day of rest.
10.
That the Respondent refuses to communicate with my family and friends
alleging that she was forced compelled to enter into marriage with me because
of my wealth and pressure from her parents
11.
That numerous attempts at reconciliation by both my parents and the
Respondents parents over the past 12 months have not yielded any willingness
on the part of the Respondent to reconcile.
12.
There is now produced and shown to me marked “FT1” a copy of my proposed
petition.
13.
That I depose to the above verily believing the same to be true and correct to
the best of my knowledge
SWORN by the said
)
FRANK TEMBO
)
This
day of )
2012)
--------------------------------------------------DEPONENT
Before me
...................................................
COMMISSIONER FOR OATHS
___________________________________________________________________
Felix C Zulu 2012/13
Page 27
CERTIFICATE WITH REGARD TO RECONCILIATION
___________________________________________________________________
I FELIX CHAKUAMBA ZULU, an Advocate for the High Court for Zambia acting for the
Petitioner in the above cause do hereby certify that I have discussed with the
Petitioner the possibility of reconciliation and that I have not given to the Petitioner
the names and addresses of persons qualified to help effect reconciliation.
Dated at Lusaka the
day of
2012
Drawn by
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
Need to add Notice of making of application for leave to present divorce petition
within one year of marriage and Acknowledgement of Service.
08.10.2012.
Below are drafted samples of the documents to accompany the Petition:
1.
The Certificate of Reconciliation is done pursuant to section 25 of the
Matrimonial Causes Act 2007. This is prepared by the advocate who is
preparing the petition and not the law firm (the lawyer with conduct of the
matter).
___________________________________________________________________
CERTIFICATE WITH REGARD TO RECONCILIATION
___________________________________________________________________
Felix C Zulu 2012/13
Page 28
I FELIX CHAKUAMBA ZULU, an Advocate for the High Court for Zambia acting for the
Petitioner in the above cause do hereby certify that I have discussed with the
Petitioner the possibility of reconciliation and that I have given to the Petitioner the
names and addresses of persons qualified to help effect reconciliation.
Dated at Lusaka this
day of
Signed by:
2012
Felix Chakuamba Zulu
Advocate for the Petitioner
If you have not discussed the possibility of reconciliation you should therefore indicate
that in the certificate above ‘that you have not discussed reconciliation or given the
Petitioner names and address of persons qualified to help effect reconciliation.'
2.
The other document that accompanies the Petition as stated above is the
‘Statement as to the arrangement of the children’. This statement talks about
the present arrangement of the children, for where there are children of the
family, if no children you don’t prepare the statement. This statement also
indicates whether the children are at school or not and what are they doing. It
indicates who provides financial support, whether or not both parties have
access to the children. The second part deals with the proposals for the above
arrangement on how the children will be kept in case of a decree nisi been
granted by the court.
The statement should also be prepared in the case of voidable marriages where
there are children of the couple. The heading will be as in the petition the same
parties and the heading of the document is simply the ‘STATEMENT AS TO
ARRANGEMENTS FOR CHILDREN.
The first line of the document always reads as follows:
‘The present arrangements for the two minor children of the family are as
follows: or, The present arrangements for the children under the age of 16 years
who are receiving instructions at an Educational establishment or are undergoing
training for a trade, profession or vacation are as follows’:
i)
Residence (of the children of the family) must indicate where they are staying
currently and who is responsible for them.
Felix C Zulu 2012/13
Page 29
Mirriam Tembo and John James Tembo are residing with the Petitioner at
plot number 22 Chitemene Road, Northmead, Lusaka Zambia.
ii)
iii)
Education: You state the schools and grades the children are attending or any
other educational institution. You should mention if they are attending a trades’
school, mention what type of trade and if they are receiving any type of income
from such training.
(a )
Mirriam Tembo is doing grade & at Rhodes Park School.
(b)
John James is at Little Bears Preparatory School in Northmead doing Grade
1 (one).
Financial Provision: you have to state who is supporting them financially who is
contributing to their financial needs. And if receiving any allowance and any
other money say from their inheritance from their grandparents.
At present the Petitioner and the Respondent are both financially responsible for
the children or ‘The Petitioner supports the children of the family while the
Respondent helps out from time to time when she has the means.’
iv)
Access to the Children: you state any arrangements if there are any which have
been agreed upon for the access of the children by either party or both parents.
You should also state to what extent the access can be. The access must be to
the interest of the children and because of that the access should not be
unreasonable.
Both parents have joint custody and reasonable and liberal access to the children
of the family. If there is no access that must be mentioned here.
The second part of the document will have the same heading and this covers
what the arrangement will be upon the decree nisi being granted by the court
and will always start as follows:
The proposed arrangement for the children in the event of a decree nisi being
granted are as follows:-
1.)
Residence
Mirriam Tembo and John James Tembo will continue to reside with the
Petitioner at plot number 22 Chitemene Road, Northmead, Lusaka Zambia during
the school period and on weekends and holidays will reside with the Respondent
at Plot No 12345 Woodlands, Lusaka.
Felix C Zulu 2012/13
Page 30
2.)
Education
(a)
Mirriam Tembo will continue attending school at Rhodes Park School until she
goes to college or University.
(b)
John James will continue attending school at Little Bears preparatory School and
join Rhodes Park School in grade three.
3.)
Financial Provision
Both parties will continue to support the children.
4.)
Custody and Access
The parents shall have joint custody and will continue to have reasonable and
liberal access to the children of the family
After this paragraph comes the statement as to the health of the children if
there is any illness this must be stated so that the Courts knows when granting
Custody of the children:
The said children are not suffering from any serious disability or chronic illness
or The said children are not under the caer or supervision of a welfare officer or
other persons or organisation.
Dated at Lusaka this
Signed:
To:
3.
day of
2012
............................................
Petitioner
FRANK TEMBO
Drawn up by:
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
The Respondent
Where there is a Divorce pursuant to section 9(1)(d) of the Matrimonial Causes
Act, the Petitioner must also prepare the consent form that the Respondents
sign to indicate to the Court that they have no obligation to the decree nisi
been granted as the parties have lived separate for a period of more than two
Felix C Zulu 2012/13
Page 31
(2) preceding the presentation of the Petition. It is prepared by the Petitioner
for the Respondent to sign.
___________________________________________________________________
CONSENT BY THE RESPONDENT FOR DISSOLUTION OF MARRIAGE AFTER TWO YEAR
SEPARATION FROM THE PETITIONER PRIOR TO THE PRESENTATION OF PETITION
(Pursuant to Section 9(1)(d) of the Matrimonial Causes Act No 20 of 2007)
___________________________________________________________________
I JOYCE KABWE TEMBO the Respondent in this matter do hereby confirm that the
marriage with the Petitioner has broken down irretrievably I have lived apart from the
Petitioner for a period of in excess of two years preceding the presentation of this
here petition and that I consent to the dissolution of marriage with the Petitioner.
Dated at Lusaka this
Signed:
day of
2012
............................................
RESPONDENT
JOYCE KABWE TEMBO
Drawn up by:
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
To:
The Respondent
4.
The Notice of Proceedings.
The main purpose of this document is to inform the Respondent and Co-Respondent if
any that there are proceedings which have been commenced against them. The
document gives them what they should do if they want to respond or defend the
petition. In a normal situation this document was ideally suppose to be prepared by
the Court but here the lawyer for the Petitioner prepares and gives it to the Deputy
Registrar to sign it. The notice also informs the Respondent that he has 29 days from
date of service to indicate to Court whether or not he intends to defend the petition
by filing in an answer to the Petitioner together with a Copy for every party to the
proceedings.
REPUBLIC OF ZAMBIA
NOTICE OF PROCEEDINGS
Div For
IN THE HIGH COURT FOR ZAMBIA
AT THE PRINCIPAL REGISTRY
(DIVORCE JURISDICTION)
Felix C Zulu 2012/13
2012/HP/D.10
Page 32
BETWEEN:
FRANK TEMBO
PETITIONER
AND
JOYCE KABWE TEMBO
RESPONDENT
TAKE NOTICE that a petition for divorce has been presented to this Court by FRANK
TEMBO a sealed copy of it (and copy of the Petitioner’s proposals regarding the
children) is (are) delivered with this notice.
1.
You must complete and detach the acknowledgement of service and send it so
as to reach the Court within 8 days after you receive this notice, inclusive of
the day of receipt. Delay in returning the form may add to the costs.
2.
If you wish to do so, you may send to the Court a statement settling out your
views on the proposals regarding the children. If you send a statement will be
placed before the Judge dealing with the arrangements for the child(ren) and a
copy of your statement will be sent to the Petitioner.
3.
If the reply to Question 4 (or 6) in the acknowledgement is yes, you must,
within 29 days after you receive this notice, inclusive of the day or receipt, file
in the Court an answer to the Petition together with a copy for other party to
the proceedings.
4.
If the reply to question 5 in the acknowledge is yes, the consequences to you
are that(a)
provide the Petitioner establishes the fact that the parties to the
marriage have lived apart for two years immediately preceding the
presentation of the petition and that you consent, a decree will be
granted unless, in the case of a petition for divorce, the Court is
satisfied that the marriage has not broken irretrievably.
(b)
your right to inherit from the Petitioner if he or she dies without having
made a will ceases on the grant of a decree of judicial separation or a
decree nisi of divorce being made absolute.
Felix C Zulu 2012/13
Page 33
(c)
apart from the circumstances listed above there may be others
applicable to you depending on your particular circumstances. About
these you should obtain legal advice from a solicitor.
5.
If after consenting you wish to withdraw your consent you must immediately
inform the Court and give notice to the Petitioner
6.
The only fact upon which the Petitioner relies in support of the petition is that
the parties to the marriage have lived apart for at least 5 years. Section 6 of
Divorce Reform Act, 1969 provides that if in such a case the Respondent applies
to the Court for it to consider the Respondent’s financial position after the
divorce, the decree nisi cannot be made absolute unless the Court is satisfied
that the Petitioner has made or will make proper financial provision for the
Respondent, or else that the Petitioner should not be required to make any
financial provision for the Respondent. Paragraph 9110 of the petition will tell
you whether the Petitioner proposes to make any financial for you.
It is
important that you should consider this information carefully before-answering
Question 20 in the acknowledgement.
7.
If the reply to Question 20 in the acknowledgement is Yes, you must, before
the decree is make absolute, make application to the Court by filling and
service on the Petitioner a notice in Form 8 A, which may be obtained from the
Court.
8.
If you intend to instruct a Solicitor to act for you, you should once give him the
documents which have been served on you, so that the may send the
acknowledgement to the Court on your behalf. If you do not intend to instruct
a Solicitor, you should nevertheless give an address for service in the
acknowledgement so that any documents affecting your interests which are
sent to you will in fact reach you. Change of address should be notified to the
Court.
Dated at Lusaka this
Signed:
day of
............................................
DEPUTY REGISTRAR
Drawn up by:
Felix C Zulu 2012/13
2012
ZIALE CHAMBERS
Page 34
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
To:
The Respondent
5.
Acknowledgement of Service
This document is served on the Respondent or Co-Respondent if any so that they may
have a chance to indicate whether or not he or she would like to relate on certain
issues. This document has certain questions which the Respondent or Co-Respondent
has to answer.
ACKNOWLEDGEMENT OF SERVICE
(IF YOU INTEND TO INSTRUCT AN ADVOCATE TO ACT FOR YOU GIVE HIM THIS FORM
IMMEDIATELY)
1.
Have you received the Petition for Divorce delivered with this form? YES/NO
2.
On what date and at what address did you receive it?
…………………………………………………………………………………
3.
Are you the person named as the Respondent in the Petition?
…………………………………………………………………………………
4.
Do you intend to defend the case? YES/NO
5.
Do you Consent to a Decree being granted ………………………………………
6.
Even if you do not intend to defend the case, do you wish to be heard on the
claim in the Petition for:-
a)
Costs
b)
Maintenance pending suit
c)
Periodical payments
d)
Secured periodical payments
e)
Lump sum provision
f)
Settlement or transfer of property
g)
Variation of a settlement
Felix C Zulu 2012/13
Page 35
h)
Custody
i)
Periodical payments for Children
7. Do you wish to make an Application on your account for:
a)
Alimony………………………………………………………………………………
b)
Maintenance…………………………………………………………………………..
c)
Lump sum provision…………………………………………………………….……
d)
Settlement or transfer of property…………………………………………………….
If possible answer YES or NO against each item in question 6 and 20.
Dated at Lusaka this
day of
2012
Signed: ...............................................
Drawn up by:
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
Unless you intend to instruct a Legal Petitioner, give your place of residence. If you
subsequently wish to change your address for service, you must notify the Court. If a
Legal Practitioner is instructed:
Signed: .........................................
Address for Service:
...................................................
...................................................
...................................................
...................................................
................................................... #
6.
The Original Marriage Certificate
The other document to accompany the petition as stated above is the original
marriage certificate. If you do not have the original certificate of marriage you file an
affidavit and swear on the whereabouts of the original marriage certificate. This is
important so that the Court is sure it is dealing with a marriage that it has the
jurisdiction to dissolve.
Felix C Zulu 2012/13
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24.09.2012.
SEPARATION
There are two (2) types of separation and these are mutual and judicial separation.
Mutual Separation. This is where the couple agree that they should go separate ways
and also agree on how they will look after the children how they will support each
other. Where there is a mutual separation there may be some letter or document
exchanged between the couple on how this separation will work. How they are going
to live apart. You cannot accuse the other having left the matrimonial house.
Judicial Separation: this is a where the court is involved and is by the consent of both
parties. This is what is known as a Petition for Judicial Separation. The court will also
give its condition as how the parties are going to live separately. Judicial Separation is
covered by part VI of the Matrimonial Causes Act, sections 34 to 40. The Petition for
Judicial is basically the same as the Petition for Divorce. The facts are the same as
these for divorce the only difference is you don’t say that the marriage has broken
down irretrievably instead you state what the Respondent has done for example you
may state that your client cannot be reasonably expected to live with the Respondent.
After that you have the prayer. Eg.:
‘The Petitioner prays for a grant of a decree of judicial separation’ or ‘the
Petitioner prays for judicial separation’ or ‘the Petitioner prays that the
couple be separated’
It is, however, not correct to say that ‘the Petitioner prays that the parties be made
to go separate ways or she be released from this bondage’ or ‘save her from the
Respondent’. In the prayer you should also pray for custody, maintenance and for
property settlement.
To have a decree for judicial separation you have to prove one of the five (5) facts as
they appear in the grounds for divorce pursuant to section 9 of the Matrimonial Causes
Act. You do not however, have to apply these facts where the parties have agreed to
separate.
It can be granted, theoretically, the day after the marriage unlike a decree of divorce
which must be at least one year after marriage per section 6(1) of the Matrimonial
Felix C Zulu 2012/13
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Causes Act 2007. Everything in the Petition for Judicial Separation is the same as that
in the Petition for Divorce.
The main reason for filing for Judicial Separation is:
The Petitioner will not be obliged to cohabit with the Respondent Section 35 of the
Matrimonial Causes Act 2007 which is not the case if the couple just split up, by
mutual consent. At a later stage the husband can always walk back into the wife’s
house and remain there. He can’t do this if there is a decree for judicial separation.
Other reasons include: to get a financial order and Divorce is objected to on religious
grounds, or if the couple wants some time apart to cool down and then try to
reconcile etc.
Note just as in divorce, the Petition for Separation will be heard by a Judge and the
same Judge will decide custody issues, (and also any prayer for a restraining order)
but maintenance and property settlement issues will be heard by the Deputy Registrar.
Once the decree for Judicial Separation has been granted there is no sexual obligation
on the parties this is pursuant to section 35 of the Matrimonial Causes Act 2007 that
provides inter alia:
‘A decree of judicial separation relieves the Petitioner from the
obligation to cohabit with the other party to the marriage while the
decree remains in operation...’
No sexual contact whatsoever, once there is sexual contact the decree falls away as it
means the parties have reconciled.
There are four main instructions that a male client may give following judicial
separation and these are:
Custody: whether he is capable of bringing up the children by providing shelter.
Time: whether he can have proper time for the children to help them in their
upbringing.
Finances: whether he has the finances to support the children.
Why he wants custody of the children: Ask him whether or not he shall give access to
the mother of the children, if not, he should explain why not.
Felix C Zulu 2012/13
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The difference between Mutual and Judicial Separation.
1.
You cannot enforce or go to court and say that the Respondent has not done ABC
(what you had agreed), you cannot enforce your mutual agreement such as to
enforce the custody arrangement.
2.
A judicial separation will stop the parties from living together as if they are still
husband and wife, cohabitation ceases. The decree bars the two from sleeping
together in that sense, living as husband and wife. While in mutual separation
they can find their own way of going back to the partner without being
sanctioned. For these under Judicial separation when they come together even
for one night the decree falls away or is destroyed in a manner of speaking.
When a part to a judicial separation sleeps with another persons they have
committed adultery, so they cannot be on separation and start seeing somebody
else that will be a reason for a divorce.
An example of a Petition for Judicial Separation
___________________________________________________________________
PETITION FOR JUDICIAL SEPARATION
(Pursuant to Section 34 of the Matrimonial Causes Act, 2007 of the Laws of Zambia)
___________________________________________________________________
The Petition of CLARE NKWANGA JOLLY showeth that:
1.
The Petitioner CLARE NKWANGA JOLLY was lawfully married to DEAN
JOLLY (hereinafter called “the Respondent”) on the 11th day of April 1987
at St. Ignatius Church in Lusaka.
2.
The Petitioner and Respondent last Co-habited as husband and wife at Plot
163/737 Mukutuma Close Emmasdale Lusaka.
3.
Both the Petitioner and the Respondent are domiciled in Zambia.
4.
The Petitioner who is a Librarian/Documentalist by occupation and resides
at 34H (D) Bishops Close Kabulonga off Bishop Road and the Respondent
who is a Transporter/Businessman by occupation resides at 163/737
Mukutuma Close Emmasdale.
5.
There are five (5) children of the family now living namely;
i.
Kayleigh Vanessa Jolly (female) born on 13th August 1987
Felix C Zulu 2012/13
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6.
ii.
Kira Siobhan Jolly (female) born on 7th September 1989
iii.
Karla Bronwyn Jolly (female) born on 27th September 1992
iv.
Andrew Dean Callan Jolly (male) born on 11th June 1995
v.
Rhys Cameron Jolly (male) born on 4th January 1997.
There are no other children now living either born to the Petitioner or
Respondent.
7.
There have been no previous proceedings in Zambia or elsewhere with
reference to the said Marriage or between the Petitioner and the
Respondent with reference to any property or either or both of them.
8.
There are no proceedings continuing in any Country outside Zambia which
are in respect of the Marriage or capable of affecting its validity.
9.
No agreement or arrangement has been made or proposed to be made
between the Petitioner and the Respondent for the support of either of the
parties or the Children.
10.
The Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent.
PARTICULARS OF UNREASONABLE BEHAVIOUR
i.
The Respondent is very violent and abusive towards the Petitioner
and often beats her which beating started two weeks after
marrying.
ii.
In or around September 1989 when our child Kira was six weeks old
the Respondent beat me in front of his parents and the
Respondent’s Mother had thrown herself between us for the
Respondent to stop physically beating me.
iii.
On one occasion when my late sister was around visiting the
Respondent beat me severely that I had to lock myself in one of the
rooms wherein the said sister found me and took me to my father
who later wrote a letter to my father-in-law complaining about my
treatment.
iv.
At one time in 1998 I was badly beaten that it took the children to
call my parents who then took us and stayed with them for about a
month before the Respondent came to pick us up.
v.
Due to financial hardships I started a business making and selling
Cakes but the Respondent would always interfere at one time
Felix C Zulu 2012/13
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throwing a Cake on the ground and sometimes deliberately taking
away the Car I used for delivery so that I should fail to deliver.
vi.
When I was working at UNICEF in December 2001 and MSF Holland,
January 2002 until Schools reopen the Respondent became
extremely cruel to me that he got the Car I was using from me and
thus started walking from work in Roma township through Garden
Compound to Emmasdale. etc
11.
As a result of the Respondent’s violent behaviour towards the Petitioner,
the Petitioner is not only scared for her life and that of the children but she
is also traumatized that she cannot reasonably be expected to live with the
Respondent.
AND THE PETITIONER therefore prays:
i.
That the Petitioner may be Judicially Separated from the
Respondent.
ii.
That custody of the children of the family be granted to the
Petitioner.
iii.
That a maintenance order be made for the benefit of the children of
the family and the Petitioner.
iv.
That each party to bear its own costs.
01.10.2012.
NULLITY.
Sections 24 to 33 of the Matrimonial Causes Act No 20 of 2007 deals with the question
of Nullity. Something happened to make the marriage not to be a marriage at law.
Whether the marriage is void or voidable depends on the situation. A marriage may
either be void or voidable. And whether a marriage is void or voidable the parties
went through a marriage ceremony but the same has failed to become or be called a
marriage.
A Void marriage is one that is null and void until it is annulled during the life time of
the parties to it, it appears to be valid until someone brings out facts that lead to
Felix C Zulu 2012/13
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nullifying the marriage. Lord Green MR in Renevelle v Renevelle13 said inter alia that
a ‘a void marriage is one that will be regarded by every court in any case in which the
existence of the marriage is in issue as not having taken place, and can be so treated
by both parties to it without the necessity of any decree annulling it.’
Section 27 of the Matrimonial Causes Act 2007 provides that something has been
discovered that cannot allow the marriage to continue being a valid marriage pursuant
to the Marriage Act Chapter 50 of the Laws of Zambia. And the common reasons for a
void marriage are:
(a)
The parties are from within the prohibited degrees of consanguinity and affinity.
Section 27(1)(a)(i) of the Matrimonial Causes Act 2007.
(b)
Where the parties were under the age of 16years, the law says the people under
the age of 16 years cannot get married, cannot give valid consent to marry.
Section 27(1)(a)(ii) of the Matrimonial Causes Act 2007.
(c)
Where either of the parties is already married. Section 27(1)(b) of the
Matrimonial Causes Act 2007.
(d)
The parties are not respectively male and female. Section 27(1)(c) of the
Matrimonial Causes Act 2007. It would not make any difference if one them had
a sex change as they are the sex they were born.
(e)
That the parties didn’t comply with the requirements of the Marriage Act with
respect to solemnisation of the marriage, section 27(a)(iii) of the Matrimonial
Causes Act 2007.
A Voidable marriage is one that may be valid until it is declared voidable by one of the
parties to the marriage or an interested party. The marriage is annulled as if the same
did not exist and it is usually for the following reasons:
a)
There was wilful refusal by one of the parties to consummate the marriage.
Section 29(b) of the Matrimonial Causes Act 2007.
b)
There has been no (failure) consummation due to incapacity by one of the
parties to consummate. Section 29(a) of the Matrimonial Causes Act 2007.
13
(1948) AII ER 56 at 60
Felix C Zulu 2012/13
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c)
Lack of consent to marry. Section 29(c) of the Matrimonial Causes Act 2007. If
you force someone to get married that marriage is voidable.
d)
If you get married to someone with mental sickness without you knowing you can
petition the marriage as they are considered incapable of validly consenting to
the marriage. Section 29(d) of the Matrimonial Causes Act 2007
e)
If at the time of the marriage one is suffering from a known STD in its
communicable state. Section 29(e) of the Matrimonial Causes Act 2007.
f)
If the at the time of the marriage the Respondent was pregnant from somebody
else not the Petitioner. Section 29(e) of the Matrimonial Causes Act 2007.
There are also situations where the person is under the influence of some substance
where they cannot make an informed decision. You get married to a wrong person e.g.
mistaken person where you know you are marrying a certain person by name but marry
somebody else.
There are circumstances where there is misrepresentation or duress or out of fear one
gets married to some person. Situation where you go through some sham marriage,
someone was playing tricks.
The petition for nullity is also like the divorce petition the document must tell the
story. For example that the marriage has never been consummated or any other
reasons set out above. Where you show the particulars you will state the reasons why
you say the marriage is void or voidable.
You can only bring a petition for nullity for the reason of consummation after 14 days
of the marriage because the law makers thought that every time before one can bring
up a case under consummation all attempts have been made by the Petitioner to have
sexual intercourse with the Respondent and thereafter until she left the matrimonial
home on such and such a day. If it is the husband refusing one can probably say that in
the first 14 days of the marriage the Respondent has not shown any interest or
encouragement to pursue her or has continued to insist that it is health that parties
have their separate bedrooms so that they never interfere with each other.
The court will, however, expect you to go beyond accepting the situation as above to
show that you tried on several instances to try and either you joined or opened the
Felix C Zulu 2012/13
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bedroom. There must be evidence of refusal. Where there is some medical situation in
the alternative the Respondent has ‘at all relevant times been and still remains
incapable of consummating the marriage. The Petitioner will ask the court to infer
that if the Respondent’s refusal to have sex with them wilful when they were due to
some psychological and medical problem.
The prayer: the Petitioner prays that the said marriage may be annulled. Where there
is no complaint after 14 days the parties can stay together for as long as 3 years and
when you go to court you don’t have to explain why there is no consummation, the
court will have to infer that there is no marriage.
Whenever a client comes to you for any issue e.g. divorce, nullity of marriage or
judicial separation find out if they have tried to reconcile their marriage but it is up to
you as an advocate to explain to them the beauty and benefits of the institution of
marriage. It is your duty to advice on issues of reconciliation.
You have to file together with your petition a certificate of reconciliation to show the
court that you have tried to reconcile the marriage but you cannot reconcile them i.e.
a void marriage there cannot be reconcile as a void marriage is one where although
there maybe some semblance of a marriage there is in fact a fundamental flaw in the
marriage which means that it is not recognised at law as a valid marriage.
The differences between a void and voidable marriage are:
1.
Technically a void marriage is void even if it has never been declared to be so by
a court while a voidable marriage is valid from the date of the marriage until the
court makes an order.
2.
A child born to parties of a void marriage is technically illegitimate.
3.
Any person may seek a declaration that the marriage is void but only the parties
to a voidable marriage can apply to annual the voidable marriage.
Note you should never mistake lack of consent with refusal to consummate these
two are different things.
___________________________________________________________________
PETITION FOR NULLITY OF MARRIAGE
___________________________________________________________________
Felix C Zulu 2012/13
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The Petition for JOYCE KABWE TEMBO SHOWEST that:
1.
On 1st July 2012 a ceremony of marriage was in fact celebrated between the
Petitioner and Frank Tembo (hereinafter called ‘the Respondent’) at St Ignatius
Catholic Church, Rhodes Park, Lusaka. Here you show that there was what was
purported to be a wedding ceremony.
2.
Here you want to show that the couple attempted or did not attempt to
cohabit. After the said ceremony of marriage the Petitioner resided with the
Respondent at Flat Number 1234 Kabwata Flats, Lusaka..
3.
The Petitioner and Respondent are domiciled in Zambia. This creates jurisdiction
of the couple.
4.
That the Petitioner, who is a nurse at the University Teacher Hospital, resides at
House Number 10 Kalomo road, Rhodes Park, Lusaka and the Respondent is a
director with the Zambia Energy Corporation Limited resides at Plot 337
Chudleigh Lusaka. You want to establish the current resides of the couple.
5.
There are no children born to the family now living. If there are you mention it
here.
6.
No child now living has been born to the Respondent during the marriage as far
as is known by the Petitioner. If there are children from either of the parties
they should be mentioned here.
7.
There are no precious proceedings in any court in Zambia or elsewhere in
reference to the said marriage or between the Petitioner and the Respondent
with reference to any property of either or both of them.
8.
There are no proceedings continuing in any country outside Zambia which are in
respect of the marriage and are capable of affecting it in its validity or
substance.
9.
No agreement or arrangement has been made or is proposed to be made
between the parties for the support of the Petitioner or the child of the family if
there are children of the family.
Felix C Zulu 2012/13
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10.
The said marriage has never been consummated. This is where you give the
reason why the marriage is void or voidable.
11.
The said consummation is due to the wilful refusal of the Respondent to
consummate the same. Must explain more of the facts that have lead to the
marriage been void or voidable.
Particulars.
i)
Between the date of marriage and the 20th August 2012, when the
Respondent left the Petitioner, he refused all advances made by the
Petitioner, who was willing and anxious and ready to consummate the
marriage.
ii)
During the honeymoon the Respondent refused to allow the Petitioner to
share his bed and declined all other than formal physical contact.
iii)
On or about 13th September, 2012, the Petitioner finally attempted to
persuade the Respondent to consummate the marriage. Despite her
physical
advances
the
Respondent
refused,
became
agitated
and
distressed, and then went out on his own for the rest of the evening.
The Petitioner Therefore Prays
1.
That the marriage in fact celebrated between the Petitioner and Respondent
may be declared null and void.
2.
Alternatively, that the said marriage be dissolved.
3.
That the costs in this cause be for the Respondent.
Dated at Lusaka this
Signed:
Felix C Zulu 2012/13
day of
2012
............................................
PETITIONER
Drawn up by:
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
Page 46
To the Respondent. The name and address of the person to be served with this
petition
15.10.2012
The petition tells the story.
Ancillary Applications
Any As a result of the petition some other issues come out that you need to consider
and sort out. And these applications are called Ancillary Applications. In either a
divorce or judicial separation petition the case has to come to a close before one can
apply for ancillary relief. Ancillary relief is a chamber matter and is therefore
commenced by summons. Where the law says commence the action by notice, you
therefore go by notice. The action is however, never commenced by originating
summons.
Any order made by the court takes effect immediately. Final maintenance order is
only made after decree nisi is granted.
Applications by Notice: These mainly relate to applications for an order for
maintenance, lump sum payment order and variation of settlement order. The reason
for the application to commence by notice in such matters is because there is normally
no quarrel about the orders per se. For example in the case of lump sum application
all the applicant is saying is that instead of paying her in instalments (which sums may
have been decided already) she wants the money paid in one lump sum instead.
Variation orders, payment is already settled but the applicant only wants to vary it.
Ancillary Applications are basically made pursuant to section 57 of the Matrimonial
Causes Act 2007 and are by leave of Court. These ancillary applications include the
following:
1.
The Custody of the children of the family where there are children of the
family. When there are no children you do not have to apply for custody.
Custody entails looking after the children, supporting them, giving them shelter
Felix C Zulu 2012/13
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so that they can have a good upbringing, spending time with them. Custody is
provided pursuant to sections 71 and 72 of the Matrimonial Causes Act 2007.
Sometimes you may have to ask for custody whilst the proceedings for divorce,
nullity or separation are still ongoing or pending, this is an emergency
application for the protection of the children.
2.
The second ancillary application relief commonly applied for is the application
for maintenance pending suit. A party to the proceedings may apply for the
maintenance of the children of the family or themselves pending the suit. This
may be during the proceedings of the cause. This means that if a party was
been maintained during the marriage now that there is this suit and one may
find it difficult to survive without the help of the other party they can apply for
a court order, pending the suit maintenance suit. This is pursuant to sections
52, 56 and 57 of the Matrimonial Causes Act 2007
3.
Periodic Payments. These are payments that are made periodically for
example per week, month, half yearly or yearly. This payment may be for the
maintenance or accommodation and so on. Sections 54(1)(a) and (b), 57, 59
and 60 of the Matrimonial Causes Act 2007.
4.
Lump sum payment Order. This is the order you ask for if you want to be paid
a one off payment. The whole amount is paid at one go. Once you choose a
Lump Sum payment the client cannot go back and claim for some more. This
closes the issue for any more payments. This is pursuant to sections 54(1),
54(4),(5) and (6); and 57 of the Matrimonial Causes Act No 20 of 2007.
5.
Settlement of Property Order. This is the order you apply for when you want
the court to decide as to how the matrimonial property is going to be settled.
If in a marriage there has not been any property then of course you don’t have
to apply for this order. They property may have been acquired by one of the
party’s or both it does matter. This is provided for under sections 55(1)(b) and
57 of the Matrimonial Causes Act 2007.
6.
Transfer of Property Order. This is different from the above. You apply when
you want some property to be transferred from one to the other and to the
Felix C Zulu 2012/13
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children. Provided for pursuant to Section 55(1)(a) and 57 of the Matrimonial
Causes Act.
7.
Variation of settlement Order. This is basically meant to vary the settlement
order that was made before. Sections 55(1)(c) and 62 of the Matrimonial Causes
Act No 20 of 2007.
8.
Avoidance of Disposition Order. This is an order you make to stop one party
from disposition of matrimonial property before the other party disposes so
that the court gets to it. This order is applied for when you can that one party
wants to dispose off some of the matrimonial property in order to defeat the
ends of justice. This is made pursuant to sections 68(2)(a) and 68(5) of the
Matrimonial Causes Act No 20 of 2007.
9.
A Secured Periodic Payment Order. This is an order made against something
which is secured so as never to fail may be against some shares one party has
or any other security which the other party has seen fit by the court. Sections
54 and 57 of the Matrimonial Causes Act 2007.
10.
Variation Order. This is an order made to vary all the above orders apart from
the property settlement order. Section 62 of the Matrimonial Causes Act 2007.
How do you make the applications for the above applications?
1.
The Custody of the children of the family You apply by way of Inter parte
Summons supported by an affidavit. In that affidavit you must:
i)
Show why you are applying for custody for the children of the family;
ii) Show that you have a place where the children can live;
iii) Show that you have the means to support the children when you have them
with you
iv) Show that you will have the time for the children. This time includes time
to help them with their home work, listen to their complaints, listen to
what they want. You have to teach them normal manners.
Felix C Zulu 2012/13
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What about if your client has no house, and no income what should be done.
Then the father if he has the means should provide the means. If the father
remained in the matrimonial home the court can order the eviction of the
father from the home or ask him to find a suitable place to bring up these
children.
The children should not suffer some unnecessary shock because of the change
of environment, the court should try to lessen such situations as much as
possible, if you choose to bring up your children in say some very expensive
neighbourhood the court will try to make them have the same environment.
The court will look at the best interest of the children, so it will be no excuse
for one to go before the court and say that there is a divorce here and I am
getting married again and I want me and my new wife to be to live in the
Kabulonga house so cannot be ordered to live the house for the ex wife and
children.
The court may sometimes want to listen to the what the children have to say if
they are in the age group that can talk to give the court want they think about
which parent to stay with (give custody to).
2.
Application for maintenance pending suit. The application is made by inter
parte summons, supported with an affidavit by the applicant who can be the
Petitioner or Respondent in the main cause and the matter is determined by
the Deputy Registrar and not the Judge. Do not include any suggestion as to the
amount of the maintenance in the summons. You should indicate the following
in your application for maintenance:
(a)
Your income if any;
(b)
The expected expenditure per month or period;
(c)
The income of the other spouse from whom you are claiming
maintenance from
(d)
The income you need for the other party i.e. the difference between
your income and the expected expenditure.
Expenditure for the children is relatively not a problem but it is when the other
spouse requires help from the other one. The order that the court may give at
this stage may differ after the divorce depending on the situation of the
Felix C Zulu 2012/13
Page 50
parties. Sometimes spouses don’t what anything to do with each other and
would therefore not even what to apply for maintenance.
Example of the petition is set out below:
______________________________________________________________
INTER PARTE SUMMONS FOR MAINTENANCE PENDING SUIT
(Pursuant to section 56(1) of the Matrimonial Causes Act, 2007 of the Laws of Zambia)
LET ALL THE PARTIES attend before the Honourable Deputy Registrar Mr/Mrs ABC in
chambers on the 10th day of June, 2012 at 09:00 hours in the fore noon or so soon
after on the hearing of an application by the Petitioner for an Order for Maintenance
pending suit for the reasons set out in the affidavit herein.
Dated at Lusaka this
day of
Drawn up by:
2012
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
To: The Respondent and his advocates
Lusaka
In the supporting affidavit, the applicant will depose about his/her needs,
salary/income, lump sums received etc. At this stage the court does not know
if everything is correct and as the summons and the affidavit will be served on
the other spouse, the other spouse will have the right to be heard. The other
side must also file in an affidavit giving their view. In the end the court will
decide by satisfying itself that both parties can be sustained after the Order is
granted.
When the summons and affidavit are filed, the court signs and seals them and
gives a return date. The documents will then be served on the other side at
least 4 days before the hearing date. If you are counsel for the applicant, you
will have discussed figures with the applicant and know what he/she wants. If
counsel for the breadwinning spouse, you should discuss if your client has a
duty to provide maintenance and if so, the quantum of that maintenance. Do
not be too combative in settling these issues - there can be several hearings
reviewing contentious orders and this can be expensive/time consuming.
Felix C Zulu 2012/13
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Maintenance pending suit - the matter has commenced and the applicant
cannot survive as support from the other partner is no longer forthcoming. This
is relatively rare, normally maintenance is applied for after the main matter is
dealt with and completed. The matter is brought about by summons (see
above) and is supported by an affidavit. What should the affidavit contain i.e.
what facts should be brought to the attention of the court?
(a)
money needed for food/accommodation
(b)
money needed to spend
(c)
money needed to buy clothes/pay school fees and medical expenses.
If the court finds out that the applicant has enough resources, it may turn down
the application for maintenance. Thus when getting instructions strive to show
lifestyle, income or wages. The court does not want a situation where the
spouse being asked to support the other is reduced to a pauper. The order
pending suit may change after the suit but in most cases the court usually
confirms the order after the suit.
The Court may ask to cross examine after the giving of viva voca evidence. Do
not give yourself as an example, don’t put yourself on the spot, what kind of a
man are you?
When you want to have maintenance by cash you can choose the best mode of
payment e.g. monthly or weekly or whatever period. And if this payment is not
coming every month and they ask if they can have one off payment e.g.
K50,000.00.
3.
Transfer of Property. This is also by Inter Parte Summons supported by an
Affidavit which should confirm why a particular property should be transferred
to your client. You should not say that the Respondent does not need that
property or that you put in some much in that property and or you have two
properties and so you want the court to give that property.
22.10.2012
4.
Lap sum payment Order. This is the order you ask for if you want to be paid a
one off payment. The whole amount is paid at one go. Once you choose a Lump
Sum payment the client cannot go back and claim for some more. This closes
the issue for any more payments. The application to court is by Notice. Since
Felix C Zulu 2012/13
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there is already an order you are just asking for a variation to instead get a
lump sum payment.
Note in all domestic relations applications the court is always looking out for
the best interest of the children in the decisions that they make and will
look at the age of the children too. A child who is very small in age they (the
court) will usually give the custody to the mother unless you can show that
the mother is unless or has a handicap of the brain.
For a long time the courts have found out that mothers take good care of their
children instead of their fathers. In most cases for the children that can talk
they will always tell the court that they want to stay with which parent.
You always have to provide access to the other party. The children should not
be denied the chance of seeing their father or mother even if their parents do
not want the access. Access should always be reasonable.
Do not coach your client’s children on what to tell the court if the court should
call them to talk to the court. They should never coach the children let the
children speak freely.
5.
Settlement of Property Order. The stress is on how the properties of the two
parties concerned should be “adjusted” in the event of divorce, death.
“Property adjustment” meant to protect the interests of the husband and the
children. It is assumed that as property is acquired during marriage, the
property belongs to the family except for such property that the parties have
agreed is not the property of the family. If there are children of the family, the
property adjustment will always be done in such a way that it does not
disadvantage them. It will be “children friendly”. When parties come into
marriage with property, that property can be turned into matrimonial property
by the way it is used by the parties during the marriage. However this position
is more some with the husband’s property. The wife’s property is governed by
the Marriage Women Property Act section 17 that seems to suggest that the
property is for the women unless the parties agree otherwise. The court may
still decide how to treat the property in the manner it feels will serve the
family right.
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6.
Variation of an Order. When you are applying for a variation of an order your
affidavit should only show why it has became necessary to vary the order. The
court sometimes may order that after sometime the party should come back so
that they have the order re-examined. The parties have a right to agree on
whatever ancillary relief they want (are applying for) and it is always better to
inform the court that the parties have agreed on ABC but may be disputing on
DEF.
7.
Transfer of Property Order. When parties come into a marriage with property
that property can be turned into matrimonial property by the way it is used by
the couple in the marriage, for example the wife comes in the marriage with a
house the parents gave her for graduating from UNZA (see The Married Women
Property Act section 17 on how to treat such property). The female may show
evidence that the property is hers and hers alone. And is not as straight
forward if it is the husband who comes into the marriage with property. That
property (house) if beautified by the wife the house becomes part of
matrimonial property which is unlike for a woman, it will still remain the wife’s
property however there is no judicial decision on these matters.
When parties come into a marriage with property that property can be turned
into matrimonial property by the way it is used by the couple in the marriage,
for example the wife comes in the marriage with a house the parents gave her
for graduating from UNZA (see The Married Women Property Act section 17 on
how to treat such property). The female may show evidence that the property
is hers and hers alone. And is not as straight forward if it is the husband who
comes into the marriage with property. That property (house) if beautified by
the wife the house becomes part of matrimonial property which is unlike for a
woman, it will still remain the wife’s property however there is no judicial
decision on these matters.
In a case where there is real property for example and the wife does not apply
for her interest in the house and there is a little child, the court will usual give
the mother the house and custody of that child.
What is involved?
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Transfer property from one spouse to another. E.g. if the husband has found a
new wife and has no interest in the children, the court may order that the
matrimonial property be transferred to the wife who will look after the
children. [Note: such transfer may also involve property that was not
matrimonial property.]
8
Settlement of Property
An Order to “Settle” the property - i.e. ABC goes to the Petitioner and XYZ
goes to the Respondent. The Court, in making the settlement, will look at the
property broadly and then apportion it. The order may be an agreed order i.e.
a Consent Order. But note, these orders are not final as, although you cannot
normally appeal to the SCZ against such an order (this can only be done with
leave of the High Court and if raising a point of law e.g. you claim there was a
legal misdirection - and property settlement orders are based not on law but on
the particular facts of the case) as you can go back to the Court at any time
and plead that the Order is unworkable or unfair and apply to have the Order
varied i.e. you apply for a Variation of Settlement Order (i.e. the existing
Order needs to be varied in some way). This is done by way of an inter parte
Summons supported by an affidavit setting out the reasons why the Order needs
to be varied. An Order to Extinguish an Earlier Order is an extreme type of
Variation Order. An Order to reduce the Property One Party was Given another type of Variation Order e.g. a spouse was given maintenance of
K2m/month and this spouse now remarries, the maintenance will be reduced or
stopped. From Maintenance up to Property Settlement: this is what is called
“Ancillary Relief”.
When will the High Court Order Property to be sold?
(a)
Where the Court has ordered a party (usually the husband) to pay a lump
sum payment, and the only way that the party can honour this payment is
by selling the property and paying lump sum from the proceeds. Even
property that is not matrimonial property can be sold. E.g. house owned
before marriage.
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(b)
Where the couple acquired property together during the marriage and it is
not clear which one should get possession of the property - Court may
order that it be sold and the proceeds shared.
If the parties indicate to the Court that they want to go their own ways and it is
in the best interest of the children that the property be sold e.g. the Court rules
that the children need a lump sum to cover their upbringing and schooling etc.
and the husband wants to relocate to Kenya and the wife to South Africa.
Property will be sold and a lump sum for children will be obtained from the
proceeds. Any remainder will be shared between the parties.
9
Variation of settlement Order. When you are applying for a variation order
you are must show in your affidavit why you need the subsisting order to be
varied and must therefore show why it has become necessary to vary the
respective order. This is done by summons accompanied by an affidavit in
support. It is always important to inform the court the areas that the parties
have agreed and tell the court where there is still a dispute.
10
Avoidance of Disposition Order. This is an order you make to stop one party
from disposition of matrimonial property before the other party disposes so
that the court gets to it. This order is applied for when you can that one party
wants to dispose off some of the matrimonial property in order to defeat the
ends of justice.
11
A Secured Periodic Payment Order. This is an order made against something
which is secured so as never to fail may be against some shares one party has
or any other security which the other party has seen fit by the court. Section 54
of the MATRIMONIAL CAUSES ACT 2007.
A Restraining Order: Only possible if you apply for Judicial Separation
If you have filed the Petition for Judicial Separation but before it is granted you want
to get an injunction to restrain your spouse, the restraining request should be one of
the prayers in the Petition. There will also be an ex parte application with a
supporting affidavit for a restraining order pending an inter partes hearing of the
Petition.
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Note: A Decree for Judicial Separation lapses if cohabitation resumes.
Preparing for a Divorce Trial
If there is a reply from the Respondent look at it and respond. Identify where the
parties agree i.e. their “common grounds” (e.g. number of children, when they last
lived together etc.). Pick out the areas where they differ. Given the short time at
court (divorce hearing typically take well under an hour) counsel is allowed to “lead”
the witness on common grounds matters/issues/facts. However, ask the client to
narrate the ground for the divorce. It is for the Petitioner, not the lawyer, to convince
the court that the facts fit the ground i.e. that there is irretrievable breakdown of the
marriage. Let the Petitioner and Respondent express themselves in their own way.
Witnesses are just called to support the “particulars” and they should not go so far as
to give irrelevant background and facts. They should just give evidence to prove the
facts relied on to prove the irretrievable breakdown of the marriage. Witnesses may
be cross-examined by the other side and after cross-examination, counsel makes
closing submissions. Often, the court does not adjourn for counsel to submit.
Submissions should be concise and give any authorities to support your client’s case if
there are any. The court may there and then refuse or grant a divorce nisi or may
briefly adjourn before doing so. These trials are usually quite fast and short.
Matters Ancillary to Divorce/Judicial Separation
29.10.2012
In an Exam if you are asked to draft a document that document must look like the
actual document and not purport to be it. The courts will not accept a wrong
document so must prepare a document that will be acceptable in court.
Maintenance Pending Suit – When applying for maintenance you must be satisfied that
the party needs the maintenance and it is not everybody that needs it. It should not
be applied just to fix the other party. Maintenance is money that the breadwinning
spouse spends sustaining the family i.e. for maintaining the other spouse and any
children of the family by providing food, shelter, clothing, housekeeping money, and
also protection and education for the children. “Pending suit” - the matter is in court
for determination of the divorce or judicial separation or petition for nullity. Thus,
Felix C Zulu 2012/13
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there is a problem between the parties to the marriage and the breadwinning spouse
may no longer care for the other. The law intervenes to prevent the breadwinner from
ceasing to maintain the other. Note: which spouse is at fault is NOT the issue. The law
looks at the needs of the two parties NOT fault. Also maintenance is not a way of
punishing a party it is there to ensure that the other spouse/children are sustained.
You apply for a maintenance order if (a) the matter is in court; and (b) the
breadwinner has stopped maintaining the other spouse.
The advocate should:
(a)
Assess the income of both parties;
(b)
Identify any children and their needs - especially education and health;
(c)
Identify the needs of the dependant spouse;
(d)
Identify the needs of the breadwinning spouse;
(e)
Identify how food, utilities, other bills are paid if parties are still in same
house; and
(f)
Find out if dependant party was getting periodic lump sum payments for
housekeeping etc. and their amount and regularity.
This information should then be used by the advocate to assess the needs of the two
parties to determine what a fair maintenance order should provide. You must show or
indicate how long the maintenance is proposed to be applied for. The court would also
wish to know if there are any mental or physical challenges for the other party
because then that spouse may require more maintenance because of their situation.
When drafting the Petition you should specify what ancillary relief the Petitioner is
seeking in fairly specific terms. Of the above nine Orders, only two are sought by way
of Notice (TAKE NOTICE THAT…) rather than by Summons (LET ALL PARTIES …). These
two are the Lump Sum Payment Order and the Transfer of Property Order. Also,
sometimes the Court may order that real property be sold and that the parties share
the proceeds, but the Court will not rush to sell, especially if there are children who
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are used to the property as their home. Here, the Court will normally order that the
non-custodial spouse leave the home.
An order of maintenance pending suit is not made to fix the other party but for
maintenance’s sake. The Affidavit should show the entire financial position of the
parties and the proposed requirements of the parties and the children of the family. It
should show how they use these resources. So you must get the party as close as
possible as they used to be before the petition. When in court you must show that your
client is the one that is struggling at the moment and they need the support of the
other party.
The party applying for maintenance must show that they have no capacity to provide
for themselves and that they need the income of the other before they can be on their
own. But must show that they have capacity or not on their own.
If there is some other property that the other party has which can be used for extra
financial assistance you should show the court of such property so that the court may
know and show the court that the other spouse is capable of getting more income
other than their salary.
The affidavit should also show the standard of living which the couple used to enjoy
before the problems in the marriage. If the couple was in the habit of going on holiday
every year that is the kind of life they were used to so the court should look at that
and try and adjust accordingly.
Must present to court the duration of this maintenance, how long the other party will
need it(the marriage maintenance). The affidavit must show as close as possible what
the contribution of the other spouse was per month during the duration of the
marriage.
One may ask however, should the court take into account the conduct of the parties to
these proceedings (all other ancillary relief applications). What about the situation
where it can be shown that the party applying for maintenance has such an income but
spends the same on such and such (beer drinking and playing). The court should know
about the conduct of the parties you cannot be given maintenance if such a figure will
end up been misused too.
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Must ask yourself whether what your client is asking for is impracticable e.g. if under
some employment condition the party is entitled to a personal to holder motor vehicle
for their use and spousal use too (the spouse can drive the motor vehicle). You cannot
therefore include a continued claim for the personal to holder motor vehicle for the
other spouse.
Maintenance of Children
The application is still by Inter Parte Summons and the supporting affidavit should
show the court the financial needs of the children such as food, clothing, medical fees
for the children, school fees, accommodation, transport money, any special
equipment for school/medical reasons etc. You should show if the children receive any
other income e.g. from their grandparents or under some inheritance. If not must
show that the children have no income coming in. You must also show if any child has
some physical or mental challenges and may therefore require more maintenance
because of the same.
Must show the standard of living that the children are used to and the court will try
and make sure that the same is maintained. It is not the intention of the court to have
children spoiled but for them to have a reasonable lifestyle as close to what they were
accustomed to so that they become useful citizens and are not reduced to street kids.
In this process the court will look first at the children’s needs and comfort. The court
must be informed how the party intend to educate the children after the divorce. So
the court may ask that both parties contribute to the well being and how they want
their children to be brought up.
Maintenance from the Estate of a Former Spouse
When can one claims maintenance from the estate (i.e. the personal representative)
of a former, and now deceased, spouse?
(a)
Where there was a court order requiring the now deceased spouse to pay the
surviving spouse a lump sum, but his/her death occurred before this was
done.
(b)
Where the parties were married for a long time and there was then a divorce
due to the adultery of the deceased spouse14.
14
This may be attributable to the fact that after a long period of marriage, adultery is not only unreasonable but the
divorce it occasions undermines the complimentarily and interdependence that arises when two people live together
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(c)
Where there is a divorce but this has not yet been made absolute and the
deceased spouse has not made sufficient provision in his/her will for the
surviving spouse. Reason: before a divorce decree absolute is granted, the
couple are still married and the law assumes that the deceased spouse should
be reasonable and leave sufficient provision for the other spouse for him/her
to be sustained. If a will is not reasonable in this regard it can be challenged.
Maintenance for the Survivor of a Void Marriage
The law allows a survivor of a void marriage to claim for maintenance from the estate
of a deceased former spouse if the survivor was dependent on the other for his/her
sustenance. Reason: Before any intervening factors, the couple considered themselves
properly married and the survivor was dependent on the deceased.
Financial Provisions
Matters affecting Financial Provisions and Adjustment of Property Rights.
Provisions for a Spouse: What matters do you take into account?
Note: these orders are not final. See if the sums asked for are reasonable. Ask yourself
“To what extent is the claiming spouse capable of supporting himself/herself?” Also
“Can the other party pay what is being demanded - e.g. is he/she remarrying and will
have to support another wife/husband (possibility more children) as well”; “Are the
circumstances going to change in the foreseeable future e.g. one or both parties plan
to remarry”.
(a)
The income, earning capacity and property acquired during the marriage
including property which either party is likely to acquire just before or just
after the marriage broke down.
(b)
The (current and into the foreseeable future) financial needs of the party
making the application for financial provision and the financial needs of the
party on whom the claim is being made.
(c)
The standard of life enjoyed before the breakdown of the marriage i.e. during
the time the marriage was subsisting not after the breakdown of the marriage
for a long period of time, such that you cannot expect the surviving spouse to look for a new income or new ways of
sustaining herself/himself - given that the surviving spouse may now be aged and may not have many years left to live
also.
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e.g. if the standard of living of one party has improved because of e.g.
promotion at work.
(d)
The Age of the Parties and the Duration of their marriage. If they are old and
e.g. the wife cannot now support herself, then court will give her more from
the income, e.g. pension, of the husband. If the marriage has lasted long, the
claiming spouse will, other things being equal, get more from the other party.
(e)
Any mental or physical disability. This will affect the financial needs of one or
both parties. Mental anguish due to marriage breakdown - not likely that one
can argue this successfully.
(f)
Contribution: What contribution did each party make to the welfare of the
family including the contribution to the home that made it worth belonging
to.
(g)
What the parties have by way of insurance policies, pension rights, gratuities
etc. that will yield income for one party in the future. The other party can
make a claim for part of these income/lump sum payments when they fall
due.
(h)
Conduct of the parties: Is the breakdown due to the claiming or claimed upon
spouse? Can the “innocent” spouse be expected to maintain the “guilty” as a
result of events that were not the “innocent” party’s making.
Provisions for a Child:
(a)
Financial needs of the child including its day-to-day needs, school fees,
medical insurance/scheme (but does not get sick every month!!), proper roof
under which the child should be kept.
(b)
Income and/or earning capacity of the child. Has he any other source of
income?
(c)
Any physical or mental disability of the child. Are there any special needs that
require more finance? [Special needs - does not include pizza every
Saturday!!]
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(d)
The Standard of Living that the family enjoyed before the breakdown of the
marriage i.e. the child should not be put in a situation where its standard of
living will drastically fall (e.g. if being taken to school by car and now
walking)
(e)
If the child is at school/full time education or not. How was the child being
educated and in which way (private school, extra tuition) Serious parents
have a “vision” for their child.
Note: rich parents don’t create many problems. Poor are too poor and have not much
to fight over. Problems arise most often which “middle class”, who try to look rich.
19.11.2012
Wilful Neglect
This only applies to parties (spouses) and their children in a marriage. The main issue
is that the spouse with better means (financial) to support and maintain the family,
they play the major role in the providing for the family in terms of material and
financials.
Marriage brings commitments. The main commitment recognised by law is for the
spouse with better means to support and maintain the other spouse and the children.
Thus, sections 168 and 169 of the Penal Code makes it a misdemeanour for a parent to
(a) wilfully desert a child and leave it without means of support and (b) refuse and
neglect to provide sufficient food, clothes, bedding and other necessaries thereby
injuring the health of the child.
However under this course this is never the issue but the civil way of bring up the
matter and as such should not use the penal Code to respond to question on this
subject matter.
If there are children of the family, the bread winner is expected to maintain the
family. This requirement only goes to the children of the family and the other spouse
and not dependants. So the stronger spouse financially is expected to maintain the
children of the family and the other spouse. This used to be the husband but this is
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now changing with the changes in the work patterns and it is now the spouse with the
stronger financial standing.
What is Wilful Neglect? Under what circumstances does this happen? This is when the
spouse with better means deliberately stops (without reason) maintaining the other
spouse and/or children which may be as a result of a strain in the marriage e.g.
suspected adultery. If this happens the offended spouse can bring an action to court
for an order of the court for the other spouse to maintain the offended spouse and
children for maintenance.
The neglect is not only about financial help but the well being of the family. For
example if the children were driven to and from school everyday then this stops and
the parent starts to give that attention to another family the mother can bring an
action for that wilful neglect that the family has been subjected to.
The aggrieved party may start an action in the High Court by way of an Originating
Summons supported by an affidavit. Where there is no petition for divorce there
jurisdiction is the principal registry of the High Court and where there already divorce
proceedings the matter is still commenced by an Originating Summons but it is before
the Divorce Registry of the High Court. Note can use the Form 6 of the High Court Act
CAP 27 of the Laws of Zambia with necessary modifications.
How far does this maintenance go?
1.
You need to firstly establish that the Respondent is obliged to maintain the
Applicant and the children of the family. If the parties have equal earnings
then both must contribute; and
2
The Respondent must have wilfully neglected to maintain. The extent of
maintenance depends on what is reasonable in each particular case. Even
failing to make reasonable contribution may call for an application for
maintenance.
The application for Wilful Neglect is made pursuant to section 58 of the Matrimonial
Causes Act and Order VI Rule 2 of the High Court Rules CAP 27 of the laws of Zambia
and it provides:
“(1).
Either party to a marriage may apply to the court for an order under this
section on the ground that the Respondent:
(a)
being the husband, has wilfully neglected –
(i)
to provide reasonable maintenance for the applicant, or
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(ii)
to provide or to make a proper contribution towards reasonable
maintenance for any child of the family to who this section applies;
or
(b)
being the wife, has wilfully neglected to provide or to make a proper
contribution towards reasonable maintenance (i)
for the applicant in a case where by reason of the impairment of the
applicant’s earning capacity through age, illness or disability of mind
or body, having regard to any resources of the applicant and the
Respondent respectively which are, or should properly be made,
available for the purpose, it is reasonable in all the circumstances to
expect t he Respondent so to provide or contribute;
or
(ii)
for any child of the family to whom the section applies.”
From the provisions of section 58(1)(b) of the Matrimonial Causes Act No 20 of 2007 it
is quite difficult for the husband to apply for maintenance despite the fact that we are
all equal before the law. For the wife on the other hand all she has to show that the
husband has wilfully neglected to provide reasonable maintenance for her and any
child of the family. From the way this section is phrased, the husband must therefore
always make an income except in the circumstances as stipulated by the section.
IN THE HIGH COURT FOR ZAMBIA
AT THE PRINCIPAL REGISTRY
(CIVIL JURISDICTION)
2012/HP/1234
BETWEEN:
JOYCE KABWE TEMBO
APPLICANT
AND
FRANK TEMBO
RESPONDENT
ORIGINATING SUMMONS ON GROUNDS OF WILFUL NEGLECT TO MAINTAIN
(Pursuant to section 58 of the Matrimonial Causes Act, 2007)
(And Order VI Rule 2 of the High Court Rules)
LET THE ABOVE NAMED Respondent within 14 days after service of this summons upon
him, inclusive of the day of service, cause an appearance to be entered for him to this
summons which is issued on the application of JOYCE KABWE TEMBO of Plot number
6789 Woodlands, Lusaka who claims for an order for financial provisions on grounds of
Wilful Neglect to maintain the applicant and the children of the family.
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Or
LET THE ABOVE NAMED Respondent within 14 days after service of this summons upon
him, inclusive of the day of service, cause an appearance to be entered for him to this
summons which is issued on the application of JOYCE KABWE TEMBO of Plot number
6789 Woodlands, Lusaka who is applying for maintenance on the grounds for wilful
neglect to maintain her and the children of the family;
DATED at Lusaka this
day of
2012
This summons was taken out by: JOYCE KABWE TEMBO, Of House No. 31 Lusaka
Kabwata Site and Service, Lusaka.
To:
The Respondent FRANK TEMBO, Plot 123, Roma, Lusaka
The originating summons is supported by an affidavit that gives the details of the lack
of support. The affidavit should show:
(a)
That the Applicant was married to the Respondent and so give the date and
place of the marriage;
(b)
That there are or there not any proceedings going on in the court as regards
the said marriage;
(c)
The affidavit should contain the fact whether there are any children of the
family, it should mention their names, when there were born, what sex and
what they are going;
(d)
Must state whether the applicant is brining the action alone or with the
children of the family;
(e)
Should indicate where the children and Petitioner are currently staying, where
the Respondent is staying too, should indicate if the children have been moved
out of the matrimonial home or what; should indicate whether the Petitioner
had been moved out of the matrimonial house; and if the children of the family
Felix C Zulu 2012/13
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not living with the Applicant should indicate where they are and why they are
where there are;
(f)
Must show if the Applicant and the Respondent are not staying together state
where each is staying including where the children of the family are staying;
where there is a division in the family of the family where the young ones are
with the applicant and the older ones with the Respondent you must indicate
that and the reasons for the division;
(g)
It is helpful in the affidavit to indicate that before this situation the
Respondent was supporting the other party and the children of the family;
(h)
There are situations where the Respondent will make the Applicant leave the
matrimonial home and been made to also leave the children including the
youngest that may still need the mother’s care. You have to state whether you
if the children are been maintained properly after you were moved;
(i)
There should a paragraph indicating when the negligence started was it
immediately upon leaving the family home or was it gradual;
(j)
Extent of lack of support, must indicate what you were provided with while in
the marriage; if there is some kind of support coming through must indicate
what and the extent and then indicate that the same is not enough for the
family;
(k)
Should state when the Respondent stated or stopped maintaining the Applicant
and the children or when the Respondent stopped contributing to the
maintenance of the family (this is where even the Applicant has an income and
they contribute to the upkeep of the family but the Applicant is main
contributor).
(l)
Should state the Petitioner’s state of income what they get so as to necessitate
the financial help from the Respondent, that they are financially not able to
look after themselves and the children of the family; and
(m)
Must show the income of the Respondent and also what you require from them
to maintain the family.
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(n)
If you are claiming for mandatory maintenance you have to state the income of
the Respondent and you should tablet how he/she uses the income. And let the
client tell you to their best of knowledge how the Respondent spends the
income that they receive. Must state how much you are requesting the court to
grant you for maintenance.
AFFIDAVIT IN SUPPORT OF AN ORIGINATING SUMMONS ON
GROUNDS FOR WILFUL NEGLECT TO MAINTAIN
I, JOYCE KABWE TEMBO a Zambian National of Plot number 6789 Woodlands of the
Lusaka City and Province in the Republic of Zambia DO HEREBY make OATH and SAY as
follows:
1.
THAT my full names, address and nationality are as stated above.
2.
THAT I am that the Applicant in this matter and by reason thereof I am
competent to swear this my affidavit from facts within my personal
knowledge.
3.
THAT on the 22nd day of April, 1995, I was lawfully married to the Respondent
at the office of the Registrar of Marriages of Lusaka.
4.
THAT there are two children of the family now living namely:
a)
Villie Knonde Tembo (female) born 6th January 2000 currently in
grade 10 at Kabulonga Girls Secondary School; and
b)
Francis Chanda Tembo (male) born on 15th April, 2004 currently in
grade 5 aat Pinewood Preparatory School.
5.
THAT there have been no previous proceedings in any court in Zambia or
elsewhere with reference to the marriage or to the children of the family that
would affect these proceedings.
6.
THAT the Respondent has wilfully neglected to provide maintenance of me
and the children of the family.
7.
THAT the following are the particulars of the Wilful Neglect:
Felix C Zulu 2012/13
Page 68
a)
That the Respondent has wilfully neglected to pay to me sums which
are sufficient for my reasonable maintenance and support;
b)
That the Respondent has forced the Applicant and children from the
matrimonial home and has not provided to or allow the Applicant to
find alternative accommodation; and
c)
That the Respondent has refused to let the Applicant and children to
occupy the matrimonial house at Nyumba Yanga.
8.
THAT I am currently unemployed as I am studying and reading for masters
degree in Business Administration.
9.
THAT the Respondent is employed as a Managing Director at Zambia Railways
and has a monthly pay in excess of K45,000.00 and collects rentals from our
flat in Kabulonga at K5,500 per month.
10.
THAT my expenses are estimated as follows:
Groceries
K2,500.00 per month
Electricity and Water
K1,000.00 per month
Rent
K4,000.00 per month
Medicals
K5,000.00 per month
Education
K5,000.00 per month
Clothing and Miscellaneous
K5,500.00 per month
Transport
K2,000.00 per month
Total
11.
K25,000.00 per month
THAT I verily believe that this is a proper case for an order for maintenance
and that the Respondent be ordered to make provisions by way of periodic
payments for myself and the children of the family.
12.
THAT I depose to the above believing the same to be true and correct to the
best of my knowledge and belief.
Sworn by the said Joyce Kabwe Tembo)
At Lusaka this
day of)
2013)
Felix C Zulu 2012/13
............................................
Deponent
Page 69
Before me:
............................................
Commissioner for Oaths
Sometimes the Applicant may not be able to stay with the children therefore you state
that in the application, you state where the children are staying and the reasons why
the children are not staying with the Applicant. If the wilful neglect started when the
two were still living together should state that in a paragraph.
In a situation where the neglect to maintain commenced when the Applicant issued
process for either divorce or for judicial separation there is an argument by some
lawyers that if the petition is for judicial separation the aggrieved party should
commence a separate action for wilful neglect as the parties are not divorcing but
merely separating. Others say that since there is already action in court it is best to go
to court and apply for maintenance pending suit. There is, however, no clear position
as the Supreme Court is yet to pass a judgment on the subject matter. BUT if a
question shows that there is an action in court the you go to court by maintenance
pending suit.
The Originating Summons is sent to the Respondent telling him/her that there is an
application and the nature of the reliefs claimed against him/her. It is always
advisable to add “Further or other relief as the Court may deem fit under the
circumstances” so as to give the court room to manoeuvre when making an order.
Note: the originating summons can be sought using O.6 r.2 of the High Court Rules or
section 58 of the Matrimonial Causes Act 2007. When handled under the Penal Code if
children are involved here the complainant is not seeking a maintenance order but is
starting criminal proceedings.
Section 58 of the Matrimonial Causes Act provides that a party can commence an
action for wilful neglect if the applicant shows that there is some evidence entitling
the court to grant a decree of judicial separation. E.g. husband is not supporting the
wife as she spends all her time and money on organising kitchen parties “unreasonable behaviour”/ “Intolerable”.
Court could grant judicial separation if
applied for. But, if the husband has e.g. lost his job, become disabled, suspended from
work on half pay etc. court will not entertain the application for wilful neglect even
though support has reduced as the reduction is not wilful.
Felix C Zulu 2012/13
Page 70
Situation: Couple married several years ago & there are 3 children. Later, the husband
discovers that the first-born is not his and stops supporting the child i.e. not paying
school fees and clothes but child remains in house and is fed. If satisfied on the
evidence that the child is not his, the court will not entertain an action against the
husband. If he proves the child is not his he is not obliged to support it in terms of
school fees etc. but if the child is forced out of the house the court will intervene. The
couple may have to judicially separate or divorce but so long as the mother is enjoying
shelter and support, the child will also enjoy until any separation or divorce.
26.11.2012
A husband generally can only apply for wilful neglect if he has reached his retirement
age or capacity or because of illness or disability of mind and body they cannot get
income and not just because you don’t have a job as an able bodied person you are
expected to look for a job, the situation of course is different with the wife.
For an action to succeed: the Respondent should (a) deliberately refuse to maintain
the other spouse and child (ren) and (b) they have a duty to maintain. The Application
is by way of Originating Summons i.e. it is a new action altogether. If there is already
a Petition for Divorce, the Petitioner cannot apply, by an interlocutory summons, for
wilful neglect, No. She/he may apply for maintenance pending suit. This is a
temporary order and falls away when the divorce decree is awarded, whereas an order
for maintenance arising from a wilful neglect action is a “permanent” order of the
court (although it may be varied later if circumstances change).
IN THE HIGH COURT FOR ZAMBIA
AT THE PRINCIPAL REGISTRY
(CIVIL JURISDICTION)
2012/HP/1234
BETWEEN:
JOYCE KABWE TEMBO
APPLICANT
AND
FRANK TEMBO
RESPONDENT
ORIGINATING SUMMONS ON GROUNDS OF WILFUL NEGLECT OF MAINTENANCE
Felix C Zulu 2012/13
Page 71
(Pursuant to section 58 of the Matrimonial Causes Act, 2007)
(And Order VI Rule 2 of the High Court Rules)
LET THE ABOVE NAMED Respondent of House No. 1234, Avondale, Lusaka within 14
days after service of this summons on him, inclusive of the day of such service, cause
an appearance to be entered for him to this summons, which is issued on the
application of Rose Banda, the above named applicant, of House No. 5678, Roma,
Lusaka, who claims to be applying for financial provision on the ground of wilful
neglect to maintain the applicant and the children of the family and seeks the
following reliefs:
(a)
That the Respondent be ordered to pay periodical payments towards the
applicant for her support and maintenance, and for the support and
maintenance of the children of the family.
(b)
That the Respondent be ordered to permit the Applicant and the children of
the family to reside in the family house at plot number 2345 Woodlands,
Lusaka.
(c)
Further or other relief as the court may deem fit.
(d)
The costs of this application be for the Respondent in any event.
DATED at Lusaka this
day of
2012
This summons was taken out by: JOYCE KABWE TEMBO, Of House No. 31 Lusaka
Kabwata Site and Service, Lusaka.
To:
The Respondent FRANK TEMBO, Plot 123, Roma, Lusaka
As already stated above the ‘originating Summons’ is supported by an affidavit that
must contain the issues that have led to the summons that is say that it must state
why the Respondent has found herself in this situation. E.g. Wife told the husband that
she was unhappy in the marriage due to his excessive drinking and the company he
keeps and he throws her and the children out of the house and since then has never
bothered to find out where she and the children are staying and how they are keeping
up. He has a duty to maintain them and he is deliberately not doing so.
The affidavit must also contain paragraphs stating that the applicant is incapable of
maintaining herself or her children. Maybe (a) she had a car to use but this has been
Felix C Zulu 2012/13
Page 72
taken away; or (b) the husband has changed her mandate to withdraw money from the
ATM or bank account etc. If the applicant works but her income is below the amount
needed to maintain her level of living, she should depose to her income and show how
she runs her life and the cost of doing so and that her income is insufficient to
maintain this life style. Note: What if e.g. the husband’s employer pays the children’s
school fees and the family’s health care costs?
Wilful neglect in the Subordinate Court
There is also a procedure in the subordinate court for wilful neglect. While in the High
Court an originating summons supported by an affidavit is used in the subordinate
court the action is commenced by way of an originating application WITHOUT an
affidavit.
In the Subordinate Court of the First Class
For the Lusaka District
Holden at Lusaka
(Civil Jurisdiction)
2012/CRMP/1234
Between:
Joyce Kabwe Tembo
and
Frank Tembo
Applicant
Respondent
ORIGINATING APPLICATION ON GROUNDS OF WILFUL NEGLECT
1. I, Joyce Kabwe Tembo, of 123 Kudu Way, Roma, Lusaka in the Lusaka Province of
the Republic of Zambia, the wife of Frank Tembo of House No. 1234, Avondale,
Lusaka (hereinafter called “the Respondent”) say that the Respondent has wilfully
neglected to provide reasonable maintenance for me and/or the children of the
family.
OR (if the applicant is the husband)
1. I Frank Tembo, of 123 Kudu Way, Roma, Lusaka in the Lusaka Province of the
Republic of Zambia, the husband of Joyce Kabwe Tembo of House No. 1234,
Avondale, Lusaka (hereinafter called “the Respondent”) say that the Respondent
has wilfully neglected to provide proper contribution towards a reasonable
Felix C Zulu 2012/13
Page 73
maintenance for me and/or the children of the family. [Note: formerly a wife was
to just “contribute” but today she may be expected to provide full maintenance as
a man if she is the breadwinner of the family. In exam, look at the question to see
if a contribution of full maintenance is expected from the wife.]
(The subsequent paragraphs will contain factual statements stating why the
Respondent is wilfully refusing to maintain and why the applicant is applying. See
Form 19 of the Matrimonial Causes Rules 1973 for the full format.)
2.
On the 22nd day of April, 1995, I was lawfully married to the Respondent at
the office of the Registrar of Marriages of Lusaka.
3.
There are two children of the family now living namely:
c)
Villie Knonde Tembo (female) born 6th January 2000 currently in
grade 10 at Kabulonga Girls Secondary School; and
d)
Francis Chanda Tembo (male) born on 15th April, 2004 currently in
grade 5 aat Pinewood Preparatory School.
4.
There have been no previous proceedings in any court in Zambia or elsewhere
with reference to the marriage or to the children of the family between the
Applicant and Respondent. (if there is you join the statement with except and
state the nature of the proceedings);
5
The Respondent has wilfully neglected to provide maintenance of me and the
children of the family.
6
The following are the particulars of the Wilful Neglect:
d)
That the Respondent has wilfully neglected to pay to me sums which
are sufficient for my reasonable maintenance and support;
e)
That the Respondent has forced the Applicant and children from the
matrimonial home and has not provided to or allow the Applicant to
find alternative accommodation; and
f)
That the Respondent has refused to let the Applicant and children to
occupy the matrimonial house at Nyumba Yanga.
Felix C Zulu 2012/13
Page 74
7
I am currently unemployed as I am studying and reading for my master’s
degree in Business Administration (or state what they do).
8
The Respondent is employed as a Managing Director at Zambia Railways and
has a monthly pay in excess of K45,000.00 and collects rentals from our flat in
Kabulonga at K5,500 per month.
9.
My expenses are estimated as follows:
Groceries
K2,500.00 per month
Electricity and Water
K1,000.00 per month
Rent
K4,000.00 per month
Medicals
K5,000.00 per month
Education
K5,000.00 per month
Clothing and Miscellaneous
K5,500.00 per month
Transport
K2,000.00 per month
Total
10.
K25,000.00 per month
I apply for an Order that the Respondent be ordered to make provisions by
way of periodic payments for myself and the children of the family.
11
I ask that this Court grants my custody of the children of the family namely
Villie Knonde Tembo and Franck Chanda Tembo.
12.
etc.
DATED at Lusaka this
day of
2012
Per ……………………………………..
Drawn up by:
To the Respondent:
Paul Banda
House No. 1234,
Avondale, LUSAKA
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Applicant
NOT SWORN BEFORE
COMMISSIONER FOR OATHS
If the court or counsel for the Respondent has doubts on the facts given in the
originating application, the applicant can be put in the witness box and cross
examined on what he/she has stated in the originating application. This is different
Felix C Zulu 2012/13
Page 75
from the High Court where there is an affidavit and the deponent is not put in the
witness box. In the High Court, the court depends on affidavits and submissions.
However, in the subordinate court, counsel’s entitlement to cross-examine does not
stop him from submitting. The Respondent makes an ANSWER to the originating
application, not an affidavit in opposition. The caption will read, “Answer to the
Originating Application”.
30.11.2012.
Affiliation and Maintenance
Affiliation is the connection of a child to its father, where the child is born out of
wedlock or from a void marriage. The Affiliation and Maintenance Act CAP 64 of the
Laws of Zambia defines an Affiliation order as ‘an order declaring a man to be the
father of a child identified in the order’. There are basically three situations provided
by the Act for application for an affiliation order and these are:
1.
The mother of the child and this pursuant to section 3 of the Affiliation and
Maintenance of Children Act Cap 64 of the laws of Zambia. The ‘single
mother’ can apply this for the purpose of having the child connected to its
father and for maintains of the said child.
2.
The mother of a child that is born from a void marriage may apply for the
affiliation and maintenance of the child that was otherwise born from before
legally married parents. This pursuant to section 4 of the Affiliation and
Maintenance of Children Act Cap 64 of the laws of Zambia; and
3.
Pursuant to section 5 of the Affiliation and Maintenance of Children Act Cap
64 of the laws of Zambia a non-martial child may through the child’s next
friend apply for an affiliation and maintenance order.
If, therefore, a couple is living apart and the wife has a child, she cannot apply for
affiliation as the child will still be deemed to be a child of the family. However, if the
husband takes out proceedings disputing paternity and the court finds in favour of
him, then the wife can apply against the putative father.
Felix C Zulu 2012/13
Page 76
The application under section 3 must be made within 12 months of the child’s birth
but if there is some reason why this is not possible, the mother can apply for leave of
the court to allow her to apply out of time. Note: if father wants to see his child but
mother refuses, he should apply for a declaration from court that he is the father and
use this as springboard for further action.
In most cases why single women would want to bring up actions under this Act is
because basically they have a child or children with a man who is not their husband
and that that person is irresponsible and they do not care for the child or children.
Generally speaking every child that is born has an identifiable father so the law allows
women to have that identifiable father, called a putative father in the Act, ordered by
the court firstly to accept the child as their own and secondly to maintain the child.
However there are situations where the woman only wants the child to have the
connection with the father but not maintenance so that the child may be named after
the father.
Who can be sued? It is only the man, the identifiable father of the child whether he is
married or not. It is important to listen to what the lady is telling you, if she says that
she had sex with two men in proximity the time she got pregnant and that she is not
sure which of the two is the father of the child, you must insist on the client to try and
remember the dates of the intercourse and identify one of them. The client must
answer in the affirmative that she had sex with that man.
The application for affiliation can be made in both the High Court and the Subordinate
Court and the action is commenced by a ‘complaint’. The Complaint is made to a
Magistrate or Court and not to the Deputy Registrar. The complaint is supported by an
affidavit.
The complaint to court will be that the Respondent is the father of the child or does
not want to be connected with the child. The application must be made within 12
months of the birth of the child.
There are sometimes where you need to complain to two men when you client is not
sure who of the two is responsible for the pregnancy therefore the father of the child.
May ask the court in helping to determine who is the real father of the child.
Felix C Zulu 2012/13
Page 77
Once you file a complaint and the affidavit the court will then issue summons to the
Respondent. There are two ways of filing the complaint:
1.
By the applicant complaining directly to the court, the applicant swears in
front of the magistrate with conduct of the case; or
2.
The Applicants files a complaint that is supported by an affidavit in the
lawyer’s office that is lodge at court, The court may require that the
Applicant come and give oral evidence in its presence in support thereof.
Pursuant to section 6(2) of the Affiliation and Maintenance Act CAP 64 of the laws of
Zambia the court may not make an affiliation order unless the evidence of the mother
is corroborated in some material particular by other evidence.
If the mother of a child refuses to complain under this Act can the mother be complied
by an reasonable person to file the complaint? There is a reason why the 12 months is
provided in the Act, if you have managed to look after the child in the last 12 months
without help why now? Unless you have very compelling reasons why you are late the
court will not entertain the application.
A child born in a marriage is always considered to be the child of the family unless
evidence can be adduced that he man is not the father of the child or the wife git
pregnant from outside the home.
Once an Affiliation Order is obtained there may arise a situation then after where you
need maintenance of the child you can go back to court for general maintenance using
the affiliation order therein as a spring board to bring up the matter.
If a mother refuses for the father to see his child the father should apply to court for a
declaration that they are the father of the child and he can use this as a spring board
for further action.
11.01.2013
In the Subordinate Court of the First Class
of the Lusaka District
Holden at Lusaka
(Civil Jurisdiction)
In the matter of:
Felix C Zulu 2012/13
2012/CRMP/
The Affiliation and Maintenance of Children Act Cap 64
Page 78
and
In the Matter of:
Section 3 or 7 of The Affiliation and Maintenance of
Children Act CAP 64
Mary Tembo
Complainant
and
John Zulu
Respondent
Complaint
The complaint of Mary Tembo (hereinafter called “the complainant”), a single woman
residing at House No. 24 Central Street, Roma, Lusaka, who upon oath states that she
was delivered of a non-marital child at the UTH at Lusaka on the 4th day of July 2012
and alleges that John Zulu of Plot No. 123 Ibex Hill, Lusaka, is the father of the said
child and having been given proof that he did within 12 months next after the birth of
such child pay money for its maintenance applies for a summons to be served upon
him to answer the said complaint.
And that he has not provided any money for the maintenance of the same child or any
form of assistance in the maintenance of the same child and now applies for summons
to be served upon the sae to answer the said complaint.
Or
And that he visited or kept visiting the mother of the child next after the birth of the
child which he has now stopped (here put up a situation explaining that the father has
refused or neglected to be the father of the child).
THIS COMPLAINT is based on what the Complainant was saying under oath.
................................................
Signature of the Complainant15
TAKEN at and SWORN before me this
day of
2012
................................................
Signature of Magistrate
15
Done in front of the magistrate.
Felix C Zulu 2012/13
Page 79
Drawn up by:
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
To: The Respondent and his advocates
John Zulu
Plot No. 123, Ibex Hill, Lusaka
OR
Complaint
This complaint of MARY TEMBO (hereinafter called “the complainant”) a spinster
residing at house No. 24 Central Street, Roma, Lusaka City in the Lusaka Province of
the Republic of Zambia SHOWEST THAT:
(a)
She had sexual intercourse with John Zulu (hereinafter called “the
Respondent”) in 2011 in Lusaka (can be specific if the client has given you
specific dates);
(b)
There was born out of the two of them out of wedlock a child, namely Rose
Zulu, born on the 4th day of July 2012 at the UTH in Lusaka, the child being of
female sex.
(c)
The Respondent has neglected to look after the said Rose Zulu as he has
ignored, failed and/or refused to provide material &/or financial support to
the said child. (or can say that they have refused to accept the child).
NOW THEREFORE the said complainant applies to this court for the following reliefs
(a)
That the Respondent as father of the said Rose Zulu be ordered to pay a sum
of K______/month for the said child’s upbringing.
(b)
That the said sum of K______/month be paid through the court on or before
the 30th day of every month
(c)
That the costs of these proceedings be for the complainant.
Felix C Zulu 2012/13
Page 80
................................................
Signature of the Complainant
TAKEN at and SWORN before me this
day of
2012
................................................
Honourable Magistrate
Drawn up by:
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
To: The Respondent and his advocates
John Zulu
Plot No. 123, Ibex Hill, Lusaka
[Note: the first complaint deals with both affiliation and maintenance. In the
second complaint, the complainant is very confident that the Respondent is the
father - perhaps he is not disputing paternity - and the issue of fatherhood may not
arise at the hearing. The only issue to settle is the maintenance to be paid per
month.]
Affidavit in Support of the Complaint
The complaint is supported by an affidavit that may have the following details:
AFFIDAVIT IN SUPPORT OF THE COMPLAINT
I, MARY TEMBO a Zambian National of House Number 24 Central Street, Roma Lusaka
DO HEREBY make OATH and SAYS AS Follows:
16
1.
Full name and address of the complainant.
2.
The fact that the deponent is a single woman (see definition in s. 216)
“includes a widow, a married woman who is divorced and a woman living apart from her husband”
Felix C Zulu 2012/13
Page 81
3.
Indicate that the complainant is making the affidavit, as she is the only one
competent to do so (unless she has died and the child’s guardian is the
complainant).
4.
Give the date of birth, sex of the child and the place of delivery.
5.
If the putative father refuses any sexual relations with the complainant, then
the affidavit should state how she wishes to prove that he is by stating where,
when and under what circumstances sexual intercourse took place. However,
the court will look to see if there’s any evidence to corroborate her
statement. [If the complaint indicates how, when & where sexual relations
took place do not mention it in the affidavit.]
6.
The affidavit should state whether, after birth, the Respondent took any steps
to maintain the child even if only once. [But, do not confuse help from a
sympathetic male friend with maintenance from the putative father. Such
help is not an acknowledgement of paternity]
7.
State, the Respondent has failed/neglected to support the child financially/
materially.
8.
State that the deponent is not in a position to maintain the child either fully
or that she is only partially able to do so. [Be honest with the court17].
Example of an affidavit
AFFIDAVIT IN SUPPORT OF THE COMPLAINT
I, MARY KABWE TEMBO a Zambian National of House Number 24 Central Street, Roma
Lusaka DO HEREBY make OATH and SAYS AS Follows:
1.
THAT my full names, nationality and residential address are as stated above.
17
Best to advise the client to put in the affidavit only what is reasonably required to maintain the child per month, not
an exaggerated amount. Court will decide the amount to be paid in relation to what the child requires irrespective of
the class of home it comes from.
Felix C Zulu 2012/13
Page 82
2.
THAT I am the applicant herein suing on behalf of Chanda Mulenga and
Mulenga Mulenga both minors by which authority I swear this affidavit from
facts within my personal knowledge and information.
3.
THAT Chanda Mulenga and Mulenga Mulenga are non-martial children of Mercy
Chitalu Tembo, now deceased and the Respondent Titus Mulenga Mulenga.
4.
THAT I am the maternal grandmother of the two minors herein residing with
me at House Number 24 Central Street, Roma Lusaka under my care and
control following the death of their mother Mercy Chitalu Tembo in 2011.
5.
THAT the Respondent runs a butchery busness and is also engaged in building
and construction in Lusaka and the surrounding areas and hence earns ann
income at regular or frequent intervals.
6.
THAT the Respondent is also the owner of House number 1234 Avondale,
Lusaka which he lives in and also the shopping complex at Plot number 9876
Avondale where he has his butchery business and offices and lets out the
other shops.
7.
THAT inspite of these means the Respondent has wilfully neglected his
children.
8.
THAT the two children are now in pre-school at Roam Pre-School and their
schools have not been paid for and is K2500.00 each per term.
9.
THAT the Respondent has been approached several times to pay the school
fees and the Respondent has refused to or neglected to pay the fees.
10.
THAT the Respondent has the means to support the children.
11.
THAT I verily believe that this a proper case for the court to make a
favourable maintenance order.
12.
THAT I depose to the above verily believing the same to be true and correct
to the best of my knowledge and belief.
The Affidavit must tell the story.
Felix C Zulu 2012/13
Page 83
The Summons to the Respondent
Note: every summons must show what will happen to the Respondent if he ignores the
summons and does not turn up at court at the time and on the return date entered
thereon. i.e. court may order what woman pleads for e.g. monthly maintenance
payments. Below are 2 possible formats for the summons to the Respondent:
SUMMONS
To: John Zulu
House No. 123,
Ibex Hill, Lusaka
The complaint has been made this day to me by Mary Tembo, a single woman, residing
at House No. 24 Central Street, Roma Lusaka, who states that she was delivered of a
non-marital child on the 4th of July 2012 at the UTH, Lusaka of which child she alleges
you to be the father and for the maintenance thereof she has given proof on oath that
you did within 12 months next after its birth pay money for its upbringing and she
applies for a summons to be served on you to answer the complaint.
YOU ARE THEREFORE COMMANDED to appear before the magistrates court No. 3
sitting at the new complex on the
day of
2012 at
hours
to answer the said complaint.
Signed
..............................................
Honourable Magistrate
If you neglect to appear as above required, the court, upon proof that this summons
was served, may proceed as the court deems it fit, to make an order upon you as the
putative father of the child above referred to and order you to pay a monthly sum for
its maintenance and other sums for costs and expenses.
Drawn up by:
Felix C Zulu 2012/13
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
Page 84
OR
A complaint has been made this day to me by Mary Tembo (hereinafter called “the
complainant”) a spinster, residing at House No. 123 Central Street, Roma in the Lusaka
City
18
of the Lusaka Province of the Republic of Zambia within the jurisdiction of this
court of the resident magistrate, that you being the putative father of Rose Banda
have been guilty of neglecting the child and have failed to render material and
financial support to the said child.
YOU ARE HEREBY SUMMONED to appear before the court of the Hon Mr.
At Lusaka on the
day of
2006 at
hours in the
noon
to answer the said complaint and to show cause why this court should not grant such
orders as drafted by the said complainant under the provisions of section.
of
the Maintenance and Affiliation of Children’s Act:
And the complainant applies for the summons to be served upon you the said
Respondent to answer this summons.
Dated at Lusaka this
day of
2012
Signed
..............................................
Honourable Magistrate
If you neglect to appear as above required, the court, upon proof that this summons
was served, may proceed as the court deems it fit, to make an order upon you as the
putative father of the child above referred to and order you to pay a monthly sum for
its maintenance and other sums for costs and expenses.
Drawn up by:
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
In Practice: The lawyer for the complainant drafts and files all three documents
together i.e. files the complaint; summons and affidavit in one go. He then brings
18
Process can be initiated in Lusaka or any place where the woman is resident, and served on the putative father out
of the district if need be.
Felix C Zulu 2012/13
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them before the magistrate who reads the complaint and affidavit and signs the
summons, returning the summons to the lawyer for him to serve to the putative
father. These documents should NOT anticipate the Order that the court grants. You
must wait for the court’s decision on the return date. Once delivered the lawyer for
the complainant will draft the court Order in accordance with this decision and the
magistrate will later sign it. If he decides, “order as prayed”, the complainant will get
what she asked for and you can prepare the Order accordingly. However, the lawyer
MUST prepare the Order in accordance with the magistrate’s decision and must not
draft an Order changing anything that was handed down e.g. increase monthly
payments from K400 to K600. This is unprofessional and as an officer of the court, the
magistrate will not expect a lawyer to vary any order he gives to suit the lawyer’s
client. [Note: Consent Order - the signatures of the two advocates must be on the
same page as the Order or part thereof to avoid any chance of tampering and
fraud.]
Once the Order is made the court can be moved by either party at any later date vary
the Order if circumstances change e.g. the woman marries another man and the child
is taken into that family. However, the court will not needlessly issue Orders or vary
them. It will look at the needs of the child. It may be that the woman is better able to
support the child than the man and Order that the woman maintain the child.
14.01.2013.
Adoption
If a couple has a problem having children they can adopt a child or children. If a
couple or individual want a child to be legally theirs, to be a “child of the family” and
know that no-one else can make a claim on the child they adopt. What is Adoption? It
is getting a child that is not yours biologically and making them your child legally.
Adoption is a situation through which a child can become a legal child of the adopting
parent or parents. In this case, the biological or previous legal parents of the child will
lose all of their legal parental rights in respect of that child once he has been
adopted. Adoption is primarily governed by the Adoption Act CAP 54 of the Laws of
Zambia, as supplemented by applicable English law.
Felix C Zulu 2012/13
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Who can adopt? Anybody can apply for adoption provided they can comply with the
provision of the Adoption Act Chapter 54 of the laws of Zambia. Spouses can jointly
apply for adoption of a child. A mother or father can apply for adoption.
For a person to qualify to adopt they should have attained the age of 25 years and
above or at least be 21 years older than the child they want to adopt. The last does
not apply if the applicant is a relative to the child. Provided the relative has attained
the age of 21 years old and are of sound mind.
A single person can also adopt a child provided that a male may not adopt a young
female child but a single female may adopt both male and female child. In special
circumstances though a single male may be allowed to adopt a female child such as
where the female is a relative. No two people who are not a couple can adopt a child
or children. The child must be brought up in a proper home environment.
Sometimes before a child is adopted they may be put in home, an adoption society or
orphanage. The society or orphanage does not become the father or mother of the
child. These are just places where unwanted children are left and kept until they can
be adopted.
The law does not allow for you to start picking (selecting) the child you want from the
adoption society nor are you allowed to inquire where the child came from. All you
can do is just get a child but you can choose the sex of the child you want (if a
couple).
In most cases adopters are couples without children or goodhearted couples or
individuals who have a lot of money and want to help a child in life. Couples adopt
“jointly” and once adopted it becomes a “child of the family”. All the rights of a child
of the family become the adopted child’s rights as well.
Before the court can grant an adoption order the court must make sure that the
biological of that child have consented to the child been adopted in writing. If the
child is adopted through the adoption society the society should consent to the
adoption.
In the issue of Surrogate parents the lady giving away the child must give consent to
the couple that want the child, they adopt the child together. The biological has to
Felix C Zulu 2012/13
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give up her rights to that child must have had the mother before the issue started sign
an agreement that the child will be given to the couple.
Section 2 of the Adoption Act defines an infant as “a person who has not attained the
age of 21 years, but does not include a person who is or has been married.”
Adoption Proceedings
The proceedings may be commenced both in the Subordinate Court and the High
Court. It is however easier to process your proceedings in the Subordinate Court. The
proceedings are held in camera and they are commenced by Petition. (Note he will
never ask you in an exam to draft the petition but the question will come as to its
content.)
Section 3 of the Act provides for the power of the court to make adoption orders upon
an application, made in accordance with the Act, the court may make an adoption
order authorizing the applicant(s) to adopt a child. However adoption orders are
restricted to the following applicants:
a)
Joint spouses;
b)
A mother or father of the infant, whether alone or jointly with their respective
spouse;. For example if a single mother has a child but has lost all the papers
and wants to travel outside Zambia with her child, she can adopt the child to
legalize her relationship with it and obtain papers for the child. And similarly, by
section 3(3) a father can adopt his own child e.g. if the mother whom he was not
married to dies before the child can look after itself, he can adopt to legalize his
relationship with his child. Further, a person may go into a second marriage with
a child. If the new couple does not adopt this child, it will be a child of the
mother (or father) but not a child of the family. To make it a child of the family,
the couple must adopt it. If adoption is granted the biological father (or mother)
who is not a party to the new marriage looses his/her rights in the child. Thus
section 3 states
Qualifications to Adopt.
The applicants should or ought to be:
Felix C Zulu 2012/13
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i)
Residents of Zambia;
ii)
Of the right age (25 years and above or the person is 21 years older than the
child to be adopted);
iii)
They should have been in care of that infant for at least 3 months before
applying for the adoption (continuously in the care of);
iv)
Three (3) months before their application the applicants should have notified
the Commissioner of Juveniles of their intention to apply for an adoption
order in respect of the infant
v)
They should have the consent of the biological mother and father (not usually
father) or the guardian looking after that child. Where the applicants may
have to seek consent from a father of a child to be adopted especially is
where the father supports that child and calls that child his child.
There are some situations where you cannot get consent. The law provides that you
apply to court to dispense with the need for consent of the parents or anybody
involved in the care of a child, see section 5(1) of the Adoption Act CAP 54 of the laws
of Zambia. If the child is been kept by a grandmother you must get consent from her.
In a situation where the mother or guardian cannot give consent due to being of
unsound mind the consent is obtained from the people that look after that mother.
And a doctor may be asked to certify that the mother is of unsound mind. If the child
has been abandoned the court will dispense with consent.
APPLICATION TO DISPENSE WITH CONSENT OF MOTHER/FATHER/GUARDIAN
We, the undersigned, being Bob Mwanza and Jessica Mwaka Mwanza of plot 6789
Ngwerere in the Lusaka City and Province of the Republic of Zambia:
(a)
the natural father of the infant;
(b)
the step-mother of the infant.
We hereby apply for the consent of the natural mother of the said child Mark Mwanza
to be dispensed with for the reason that the biological mother of the child in question
Felix C Zulu 2012/13
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who is required to give consent to the petition for adoption died and is as such
incapable of giving the necessary consent.
Dated at Lusaka this the
Signed by:
day of
2013.
..............................................
Natural Father
Signed by:
..............................................
Step Mother
The order to dispense with consent of parents is not in any way a formal document it
is drafted depending on what the court says.
Our laws also provide for the adoption of a foreign child. The requirement is that the
child should be legally residing in Zambia. And the people who want to adopt the child
should be ordinarily residents in this country, not under a work permit. The child
should have been continuously in the custody of the applicants for a period of twelve
(12) months and residing with these people in this country. The applicant should have
notified the commissioner of Juvenile three (3) months before the expiry of the
Twelve (12) months of their intention to adopt that foreign child.
Note, if the child can speak or otherwise indicates his resistance to staying with his
prospective adopters, the court will not grant an adoption order or possibly make an
order that the child remains with the prospective adopters for another e.g. 3 months.
Whatever, even if an adoption order is granted the court may attach conditions e.g.
that the child be brought back to court in e.g. 6 months time. If the consent was given
but the parent did not fully understand the effect of the adoption, the adoption order
may be revoked as in Michael MacGarry v Eric MacGarry (Adoptees) [1999] “where
Mr. Justice P Chitengi revoked an adoption order given to the boys grandparents, as it
had created “abnormal relationships” within the family that was not appreciated by
the mother did not fully understand at the time of the order.”
Can a foreigner adopt a child in Zambia? A foreign citizen, who stays outside the
jurisdiction of the High Court, can adopt a child in Zambia depending on the situation
and upon following the laid down procedures. The general position is that a nonFelix C Zulu 2012/13
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resident cannot adopt a Zambian child. There are time limits such as before you can
apply for adoption, you must have stayed with the child for the minimum of three (3)
months and give notice to the Commissioner for Juveniles. In such cases, the court
may be asked to dispense with the requirements for consent and for staying with the
child for three (3) months.
In special and deserving cases, a foreigner can apply without fulfilling the conditions
but the court would grant conditional adoption such as to avail the child to the High
Court in eighteen (18) months for further assessment. The court would in such
instance look at the particular circumstances which should be in the best interest of
the child, as in the need for the child to have a home. However, in ordinary cases the
three (3) months must be adhered to as it is a testing period to see whether the child
can safely live with the adopting parents. In three (3) months the Social Welfare
Officers will make visitations and subsequently prepare a report as to the suitability of
the adoption.
Restrictions on Adoption
Section 4 provides:
“S4.1. An adoption order shall not be made in respect of an infant unless the applicant
or, in the case of a joint application, one of the applicants(a)
has attained the age of twenty-five years and is at least twenty-one years
older than the infant; or
(b) has attained the age of twenty-one years and is a relative of the infant; or
(c)
is the mother or father of the infant.”
4.(2)
An adoption order shall not be made in respect of an infant who is a female in
favour of a sole applicant who is a male; unless the court is satisfied that there
are special circumstances which justify as an exceptional measure the making
of an adoption order.
4.(3)
Except as provided by subsection (2) of section three, an adoption order shall
not be made authorising more than one person to adopt an infant.
4.(4)
Subject to the provisions of section five, an adoption order shall not be made-
Felix C Zulu 2012/13
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4.(5)
4.(6)
(a)
in any case except with the consent of every person or body of persons
who is a parent or guardian of the infant or who is liable by virtue of any
order or agreement to contribute to the maintenance of such infant;
(b)
on the application of one of two spouses, except with the consent of the
other spouse.
An adoption order shall not be made in respect of any infant unless(a)
the applicant and the infant reside in Zambia; and
(b)
the infant has been continuously in the care and possession of the
applicant for at least three (3) consecutive months immediately
preceding the date of the order; and
(c)
the applicant has, at least three months before the date of the order,
notified the Commissioner of his intention to apply for an adoption order
in respect of the infant.
Notwithstanding subsection (5) an adoption order shall not made in respect of a
foreign infant(a)
unless the infant resides in Zambia and the applicant is ordinarily resident
in Zambia;
(b)
unless the foreign infant has been continuously in the care and possession
of the applicant for at least twelve consecutive months immediately
preceding the date of the order;
(c)
unless the applicant has at least three months before the period referred
to in paragraph (b) notified the Commissioner of his intention to apply for
an adoption order in respect of the foreign infant; and
(d)
if the foreign infant is in Zambia under a temporary or visiting permit
issued under the Immigration and Deportation Act. (20) Subsections (1),
(2), (3) and (4) shall apply with the necessary modifications to a foreign
infant adopted under subsection (6).(As amended by Act No. 24 of 19920)
Cap. 123
Note also that the Act gives exceptions in most of the s.4 conditions. Thus s.5 states:
5.(1)
The court may dispense with any consent required by paragraph (a) of
subsection (4) of section four if it is satisfied(a)
in the case of a parent or guardian of the infant, that he has
abandoned, neglected or persistently ill-treated the infant;
Felix C Zulu 2012/13
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(b)
in the case of a person liable by virtue of an order or agreement to
contribute to the maintenance of the infant, that he has persistently
neglected or refused so to contribute;
(c)
in any case, that the person whose consent is required cannot be found
or is incapable of giving his consent or that his consent is unreasonably
withheld.
5.(2)
The court may dispense with the consent of the spouse of an applicant for an
adoption order if satisfied that the person whose consent is to be dispensed
with cannot be found or is incapable of giving his consent or that the spouses
are separated and are living apart and that the separation is likely to be
permanent19.
5.(3)
The consent of any person to the making of an adoption order in pursuance of
an application may be given, either unconditionally or subject to conditions
with respect to the religious persuasion in which the infant is to be brought
up20, without knowing the identity of the applicant for the order, and where
consent so given by any person is subsequently withdrawn on the ground only
that he does not know the identity of the applicant, his consent shall be
deemed for the purposes of this section to be unreasonably withheld.
5.(4)
While an application for an adoption order in respect of an infant is pending in
any court, any parent or guardian of the infant who has signified his consent to
the making of an adoption order in pursuance of the application shall not be
entitled, except with the leave of the court, to remove the infant from the
care and possession of the applicant, and in considering whether to grant or
refuse such leave the court shall have regard to the welfare of the infant.”
21.01.2013.
Guardian Ad Litem is appointed by the court and they make sure they information in
the application form is correct and they ensure that the best interest of the child is
met. When you file a petition for adoption the court appoints the Guardian ad Litem.
This person is in Zambia, from the Department of Social Welfare.
The Guardian Ad Litem will also find out why the child is being given up for adoption.
Must find out also the medical history and condition of the child and also investigate
whether or not if in the family of that child there is any history of mental illness. They
19
Normally, if two spouses are adopting, both must consent - see s.4(b) - as if not, the child is likely to suffer not being
accepted by one of the two as a child of the family.
20
But HH says that, although it is on the consent form, it will not bind the courts. The natural parents are consenting
to give up such parental rights.
Felix C Zulu 2012/13
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will also investigate whether the child has some religious teachings that they follow or
if they are liberal.
Find out whether the child was breast feed, they have money in the bank, or the
suffered from and are suffering from some serious illness. They must also investigate
where the child is to be adopted if there are other children there. Find out if there is
enough room for the child in the family set up where they are to go. And the family
must be made to understand that once the adoption order is granted it cannot be
reversed and that child becomes the child of the family as if they were born of the
adoptive parents.
The guardian ad litem must also investigate if the child is insured and if the adoptive
family has indicated they want to insure that child must find out why. Basically the
report must give information on the natural parents, the adopting parents and the
child to be adopted.
The court will consider the contents of the report only after completing the
proceedings but before making the order. This is to allow the court to ascertain the
application based on the evidence given by the parties. Sometimes the court may find
that the report was inadequately prepared or exaggerated. In such a situation the
court will disregard such a report.
At the end of the proceedings and when the order is granted pursuant to section 11 of
the Adoption Act Chapter 54 of the laws of Zambia, the order will be registered with
the Registrar General of Marriages, Births and Deaths because the particulars of the
child will have changed as the child would now be that of the adopted parents. The
register of marriages, birth and deaths contains all material details of the child and his
or her parents.
Courts having Jurisdiction to Make Adoption Orders and Procedure
This is governed by s.10 of the Adoption Act Chapter 54 of the laws of Zambia and it
enacts as follows:
“(1) The court having jurisdiction to make adoption orders under this Act shall
be the High Court or, at the option of the applicant, but subject to any rules
which may be made in that behalf, any subordinate court of the first class
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within the jurisdiction of which either the applicant or the infant resides at the
date of the application for the adoption order.
(2) For the purpose of any application under this Act and subject to any rules
which may be made in that behalf, the court shall appoint some person or body
of persons to act as guardian ad litem of the infant upon the hearing of the
application with the duty of safeguarding the interests of the infant before the
court.”
Function of the Court
The following are the functions of the court in an adoption application:
(a)
To make sure that the person consenting to the adoption understands WHY
and WHAT the order for adoption is (means). Must make sure that Consent
was given freely that there was no duress. See section 7(1)(a) of the Adoption
Act Chapter 54 of the laws of Zambia.
(b)
To make sure that the adoption is in the best interests of the child. Thus,
when you file an Adoption Petition, the first thing the court will do is to
appoint a Guardian ad Litem to safeguard the interests of the child. See
section 7(1)(b) of the Adoption Act Chapter 54 of the laws of Zambia.
(c)
The court must be satisfied that the persons responsible for the child have
understood the implications of the adoption order. See section 7(1)(a) of the
Adoption Act Chapter 54 of the laws of Zambia.
(d)
The court must study and understand the guardian ad litem’s report. And
the guardian when in court must be there to act for and on behalf of the
child.
When the adoption order is granted parties must be made to understand that the
rights and duties of the biological mother and father cease or these who consented to
the adoption. They should therefore stop being in contact with the child. Sometimes a
child that is been adopted may have been a subject of an affiliation order or they may
have been under some provisions of the Juvenile Act these provisions shall cease to be
in force and shall not apply anymore because the child now has parents. The court will
also be interest to find out if there has been any exchange of money from the adoptive
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parents and the biological parents or if the society has been getting some donation
from the proposed adoptees.
Note See the Adoption form from the Adoption Act CAP 54 and learn how to draft such
a document. The Petition for Adoption should be as close as the one at the back of the
Act.
It is not in all cases that the court will grant the adoption order. The court may reject
the order and if it does reject it does not allow the next application unless there are
substantial charges to the reason why it was rejected. You can only appeal the
decision of the court on the question of law and not of fact. The only exception when
such an appeal can be entertained by the court is when the circumstances have
materially changed such as when the father, not living with the child, who had
committed himself to looking after the child and hence had refused consent in the
first application, has since died and the mother who had given consent is still alive and
willing to give consent. However, should it be found out that the applicant caused the
death, then the application shall be denied.
The parties to the petition for adoption are ‘the would be adopters’ and the ‘child to
be adopted’. If the child is in the care of an adoption society they should also be
served with the petition. The petition shall be verified by an affidavit. The Applicant
can choose to either not have their names revealed in the adoption petition if not
their identity will be kept a secret while that of the child will always be kept a secret
regardless. Why is it important not to review the names of the child? Because it is not
in the interest of the child, and so as to avoid stigma. When there is a danger to the
child the court may give a quick order.
The order must be registered with the Registrar General of Births Marriages and
Deaths to show that the legal parents are now the adopting couple. Note: The court
will not grant the order if consideration was paid e.g. to an adopting society or the
consenting parents see section 30 of the Adoption Act CAP 54 of the Laws of Zambia.
The effects of the adoption are:
Once an adoption order has been made, it has the following effects:
Felix C Zulu 2012/13
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(a)
The main effect of the order is that the Rights of the biological parents, the
natural mother or natural father whichever the case, are extinguished, they
loss their parenting rights over the child to the adopters who now have the
rights and duties for the child. Such that if the adopted child want to get
married upon attaining the age of 16 years it is the adopted parents who
would give the consent.
(b)
The nationality of the child changes to that of the adopting parents as if these
parents are from a different country from that of the child.
(c)
The Child may also change his or her name to that of the his or her adopted
parents;
(d)
If the child was being maintained under an order under the Affiliation and
Maintenance Act, the order will cease - unless the adopter is the biological
mother, in which case it will continue. The maintenance will continue in a
situation where the natural mother of the child adopts the child the
maintenance must continue.
(e)
Where the child is under the custody of somebody by order of the Juvenile Act
or in a reformatory, that order will cease to have effect once that child has
been adopted.
NOTE see the Adoption Act and learn how to draft such a document.
28.01.2013.
Matrimonial Injunctions
These are intended to deal with serious issues21 and counsel must evaluate the
instructions given to him. Not everything will justify an injunction. And they are
provided for in section 101 of the Matrimonial Causes Act No 20 of 2007 and these are
related or arise out of matrimonial affairs. This section is usually evoked where and
when there is molestation and violence in the family. Many lawyers do not assist the
21
The injunction (e.g. a restraining order) will have a Penal Notice stating that the respondent will be cited for
contempt of court if he disobeys the injunction and will be imprisoned.
Felix C Zulu 2012/13
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court when it comes to injunctions despite being officers of the court and having a
duty to the court.
A matrimonial injunction is not a matter of stopping a spouse from doing something
e.g. sleeping in the same bedroom when drunk, flirting with other men etc. There
must be violation of the other spouse’s (a) person, (b) rights, or (c) the rights and well
being of any children of the family. Domestic or matrimonial injunctions are almost
always between husband, wife and children of the family. They are only applied in
very serious matters because they curtail the rights of the Respondent. The
matrimonial injunction is used or granted to stop a nuisance from being committed or
to continue been committed and it is usually in a marriage that has broken down or
where there is a judicial separation. For what matters will a court grant an injunction?
[A]
When there is violence (molestation). Violence is not only physical but may
be conduct that is very rough. The affidavit should show that the violence was
not a one off act. Also, the injunction is ancillary to e.g. a divorce or judicial
separation and there must be underlying reasons for the violence. Coming
home drunk is not in itself a reason for an injunction unless when one comes
back they go into shadow boxing while calling out the wife’s name or hitting
where they have written the wife’s name. Or the wife sleeping with a knife
under the pillow that can be interpreted as violent behaviour.
[B]
Unreasonable behaviour that affects the legal rights of the other spouse
and/or those of the children and/or the marriage. If the “behaviour” (e.g.
coming home late on Friday nights after drinking) has been going on for some
time and the family has “adjusted” to it (and it does not affect their legal
rights) a court will not grant an injunction. The court will loathe to disrupt
the workings of such an adjusted family - this is just how the family is. In a
situation where the couple had taken some photos of themselves naked and
the other is threatening and blackmailing the other to do something, you can
injunct such unreasonable behaviour of a party.
[C]
Action that may affect the “proper” or “normal” upbringing of children. E.g.
in one case - swimming in the nude with the children - an interim injunction
was confirmed after experts were called. The husband was restrained from
seeing the children.
Felix C Zulu 2012/13
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[D]
Violent behaviour against children including exposing them to violent
behaviour/ lifestyle e.g. mistreatment of pets, violent DVDs/videos/computer
games.
Note that you cannot apply to stop a husband from having sex with the wife or a wife
from demanding sex from the husband unless there is judicial separation that is in
existence between the parties. Therefore cannot apply for an injunction where the
couple fought and the wife moved to another bedroom and the husband moves to that
bedroom.
A matrimonial injunction can apply to a situation where a spouse wishes to restrain
the other spouse from tempering or interfering with their private life and property
after a judicial separation. Private property is property that has got nothing to do with
the marriage. It may also be applied for in a situation where there is a decree nisi and
the other spouse pesters and follows the other spouse. But where there is a decree
absolute such action will be criminal trespass.
At what stage do you bring the injunction? Where there are no other proceedings on
going the injunction is applied for by way of an Originating Summons supported by an
affidavit. While where there is already process before court you start the case by Inter
Parte Summons supported by an Affidavit and also a certificate of urgency. The
Affidavit in support of the injunction should show why you want the injunction, must
show proof of the allegations and must have evidence (facts) of the happenings and if
not must have some corroborating evidence to that effect.
Sometime an injunction may involve moving one spouse from the matrimonial house so
that the family may be at peace. If the father is very rough and hash to the children of
the family the mother may apply for an injunction against such behaviour.
Basically an injunction is used or granted to stop a nuisance being committed. It is
basically anything that is vexing on the other spouse but not stop the parties from
meeting as husband and wife.
Damages are not an alternative
In matters where there is a problem between a married couple and the stronger party
is trying to evict the weaker from the home, the only effective way to stop such
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eviction is by way of an injunction. Also an injunction may be granted to stop a
nuisance being committed e.g. if the wife returns to her parents’ home and the
husband is incessantly calling her e.g. on the phone at all hours and she is not taking
his calls, the parents can seek an injunction restraining the husband from trying to
contact her using their phone.
Ouster Orders.
There is a difference between a matrimonial injunction and an Ouster Order. In an
ouster order an applicant seeks to throw the other spouse out of the matrimonial
home. Our Zambian laws do not provide for the ouster orders. Therefore, you have to
go to the English law which gives the situations when you can throw out a spouse from
the home. Generally you will have to convince the court that the only reasonable
solution in the given circumstance is to ouster the spouse from the house.
The most common situation is where the couple has children and the marriage has
failed to an extent where the husband’s behaviour has become intolerable such as to
negatively affect the proper upbringing of the children. The court would make an
ouster order in the interest of the children. In a decided case of one of the INDECO
manager, the court held that although the house belonged to the employer, the
husband manager would be thrown out. In such a case should the husband decide to
influence the eviction of the family on account that the company really requires the
house, the court would give strict conditions so that the company does not circumvent
the court order.
Where you have to remove a spouse from the house, you should show the court why it
is fair for you to remain in the house whilst the other party is removed. The most
common reason is that children would be brought up properly if the other spouse was
removed from the house. In one case a wife who had no child with her husband sought
an ouster order to remove her husband from the house on account that he was
disturbing her. At the time of the application she was 3 months pregnant. The court
ordered accordingly. It later transpired that in fact that pregnancy and even the
subsequent pregnancy was from a third party.
Felix C Zulu 2012/13
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Here since the High Court had already made a decision on the matter and the period in
which review could be asked for had passed, the solution was to appeal to the
Supreme Court indicating that certain important evidence was not available at the
time of trial. The Supreme Court then ordered that the matter be sent back to the
High Court for determination of the new evidence relating to the children said to be
for the third party. The prayer would be that he wants to move back and she should be
the one to move out. When the matter was brought before the High Court he brought
evidence to show that the child was not a child of the family as initially believed.
There are Three (3) Common Situations When the Court May Sale Matrimonial
Property
(i)
Where the husband has been ordered to pay maintenance or where the court
says the husband should pay maintenance from the proceeds of the sale of
matrimonial property. Nowadays the wife may be ordered to pay in this
manner. Sometimes there are situations where the husband wants the house
to be put on rent and his portion of rentals to be paid to the children and if
that does not work out, the wife can go back to court and ask that the house
be sold. It is however, not in every situation that the court would order that
the property be sold.
(ii)
Where a husband has been ordered to pay a lump sum without reference to
the matrimonial property but he has failed to do so.
(iii)
Where the parties themselves want to have the property sold so as to enable
them start their separate lives or where the parties or one party feels that it
is in the beat interest of the children that the property be sold. An example
here is where the husband does not want to support the children or is not in a
position to support the children but there is a matrimonial home which would
enable the children to be supported adequately.
04.02.2013
Felix C Zulu 2012/13
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Bars to the Marriage: These are laws that say you cannot marry, the law does not
allow such types of marriages. Need more infor.
There are situations where the court cannot grant a decree nisi even after the party
has given a reasonable reason for the divorce, e.g. if you had a judicial separation for
two years which it is later learnt that it was obtained by falsehood the court if it
learns of this will not grant the divorce. And if after judicial separation or while in
separation the parties cohabited in between the court will not grant the divorce but if
it can be shown that the cohabitation was procured by collision the court may then
grant the divorce.
When you get a divorce petition as a lawyer you will either Reply to the petition and
denial the petition by a defence or you can denial some part of the petition or you can
cross petition.
For the purposes of the law gender is determined at birth even if you have a successful
sex change you will still be a male or female and the hence prohibited as provided for
under the Matrimonial Causes Act 2007.
When you are dealing with Affiliation and Maintenance Order the court has powers to
decide who will have custody of the child. The court may agree that yes that is the
father but you (the mother) may not have custody of the child and give it to any other
person or the father for that matter.
The foreign marriages, on the question of maintenance may be granted using the
General rules of maintenance and not the Matrimonial Causes Act 2007 use the
Maintenance Orders Act CAP 55 and the Maintenance Orders (Enforcement) Act CAP 56
of the laws of Zambia.
When you are cross petitioning you are in essence agreeing that the marriage has
broken irretrievably but not because of the particulars that the Petitioner has given
but because of the reasons that you now give in the cross petition. The petition is
signed by the lawyer who has conduct of the case.
There are marriages which were cerebrated in other jurisdictions which our laws
(Matrimonial Causes Act 2007 and the Marriage Act CAP 50 of the laws of Zambia) do
not have the rules applicable e.g. where cousins are married as where they come from
Felix C Zulu 2012/13
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it is legal for cousins to marry, the court will look at their case not because of the
Marriage Act or Matrimonial Causes Act 2007 but the inherent powers of the High Court
to hear all causes (it’s unlimited jurisdiction).
You can in such foreign marriages go before the court to seek maintenance or custody
of the children but not seek judicial separation or divorce as long as that marriage is
not cerebrated in Zambia.
11.02.2013
The Legitimacy Act Chapter 52 of the Laws of Zambia.
This is a rarely used Act. It is not a big issue in this country to be a non marital child
because our laws are friendly provided you have a mother and father.
When the parents of a child born illegitimate get married the child is legitimate from
that date. In a voidable marriage, you can use CAP 52 and file in a declaration to show
how the party were married and how their marriage was annulled and must declare
that when you were married you generally thought you were married and the product
of the union was legitimate.
Once a child is declared legitimate that child has the same rights as though they were
born legitimate and they should not take second class rights or inheritance.
Where there is death you can use the family structure to help make that other child
who was born out of the house, to be made legitimate through the Local Courts to
swear before the Court an affidavit that the child is indeed the child of the deceased
or before the family of the deceased person.
25.02.2013.
A divorce petition is only accompanied by an affidavit where the wife or husband,
being the Petitioner knows that the Respondent may later apply for maintenance for
herself and/or the children or where he knows that he will sometime in the future
face a court order to pay something. The affidavit, which accompanies the petition,
will show that apart from the petition he is expecting, he has another commitment
already. An example is where the Petitioner has already accepted to pay for an
illegitimate child. The reason here is for the court to have in mind that as they
Felix C Zulu 2012/13
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consider the question of maintenance, they should have in mind that the Respondent
has another commitment.
Once you have received a petition as the Respondent or the lawyer of the Respondent
you can either agree with what the Petitioner has said or you can cross petition
because according to you the reasons given by the Petitioner are not what have caused
the marriage to break down irretrievably.
Answer. You respond to the allegations made by the Petitioner in the petition that are
not factual. This is where you explain the issues within the petition. If for example the
Petitioner alleges that the Respondent is irresponsible and a drank then the
Respondent may deny the allegations and explain why they drink so much. So you use
the Answer where you agree with everything but that the marriage has broken down
irretrievably but you just want to correct some mistakes that were made in the
petition.
If the Respondent admits that they are a drank and they give the reasons that it is
because of the Petitioner that they are a drank, that admission is not in itself an
admission that the marriage has broken down irretrievably.
If there is an allegation of adultery, and the allegation is circumstantial, the
Respondent may deny that he has not committed adultery as alleged, if they hadn’t.
But he may argue that they were seen in the company of some woman or specific
woman but deny that they have committed the adultery. Explain the reason for been
seen with that other woman.
There are some situations where the marriage has broken down not for the reasons in
the petition but both the husband and wife have each done something that has
resulted in the breaking down of the marriage. The Respondent should therefore agree
that the marriage has broken down but not for the reasons alleged by the Petitioner
but that the Petitioner has done this and that. That will result in a cross petition.
A Cross petition is a petition countering the original petition. When the Respondent
agrees that indeed the marriage has broken down irretrievably but for different
reasons not as what the Petitioner has put in the petition you prepare a cross petition.
Shifting the blame of the reason that the marriage has broken down to the Petitioner
instead.
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So if the Respondent alleges that the marriage has broken down because the
Petitioner committed adultery that should be stated and the partner so named. The
document should have the third person who was part of the adultery as the party
cited. You use Co-Respondent when it is the Petitioner who alleges the adultery.
Examples of a Cross Petition and an Answer
IN THE HIGH COURT FOR ZAMBIA
AT THE PRINCIPAL REGISTRY
(DIVORCE JURISDICTION)
2012/HP/D.10
BETWEEN:
FRANK TEMBO
PETITIONER
AND
JOYCE KABWE TEMBO
RESPONDENT
___________________________________________________________________
ANSWER AND CROSS PETITION
___________________________________________________________________
1.
The Respondent admits paragraphs 1,2,3,4,6,7,8, and 9 of the petition.
2.
The Respondent admits paragraph 5 of the petition and will state that the
other children are Joyce born on 22nd October 1997 attending school at Nkwazi
school, Lusaka and Francis born on 2nd September 2009, attending Greenwich
infant school.
3.
The Respondent admits paragraph 10 of the petition that the marriage has
broken down irretrievably but denies that it is due to his behaviour.
4.
The Respondent denies paragraph 11 of the petition and avers that:
i)
He cannot afford to come home late as alleged due to the nature of his
job
ii)
He does not beat the Petitioner as alleged and that the incident in July
2005 was a fight caused by the Petitioner.
Felix C Zulu 2012/13
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iii)
He has no extra marital relationships and that the allegation is
imaginary.
iv)
He has never mobilized his relatives to chase the Petitioner and her
family: to the contrary it is the Petitioner and her relatives who are
disrespectful to the Respondent.
v)
The Respondent and the Petitioner no longer have sexual relations
because the Petitioner has moved out of the bedroom to occupy a guest
room.
5.
The Respondent admits that this marriage has broken down irretrievably but
not the reasons given by the Petitioner.
6.
The Petitioner has behaved in such a way that the Respondent cannot
reasonably be expected to live with the Petitioner.
PARTICULARS
i)
The Petitioner sleeps out of the Matrimonial home without informing the
Respondent as to where she spends these nights;
ii)
The Petitioner frequently stays out late and patronizes nightclubs such as Alfa
Bar in Northmead and when she goes to these nightclubs she wears skimpy
short skirts and tops;
iii)
The Petitioner uses traditional charms with the view to control the
Respondent.
iv)
The Petitioner does not perform any household chores including cooking.
v)
The Petitioner is violent and abusive and has threatened to cut off the
Respondent’s private parts and watch him bleed to death;
vi)
The Petitioner before moving out of the Matrimonial home has moved out of
the main bedroom.
THE RESPONDENT THEREFORE PRAYS:
Felix C Zulu 2012/13
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1.
That the said Marriage be dissolved;
2.
That he may be granted access to the children of the Family namely Mirriam,
John James, Francis and Joyce;
3.
That there be property settlement; and
4.
That the Petitioner pay for the Costs of these proceedings.
Dated at Lusaka this
day of
Drawn up by:
2013.
Family Law Advocates
Stand No. 1234
Andrew Mwelwa Road, Rhodes Park
P O Box 54321
Lusaka
Advocates for the Respondent
To: The Petitioner and his advocates
Lusaka
___________________________________________________________________
ANSWER
___________________________________________________________________
1.
The Respondent admits paragraphs 1 to 9 of the Petition for the dissolution of
the Marriage.
2.
The Marriage has not broken down irretrievably as alleged in the Petition.
3.
The Respondent denies that she has behaved unreasonably such that the
Petitioner cannot reasonably be expected to live with the Respondent.
4.
The Respondent denies paragraph 12 of the Petition to the contrary it is the
Petitioner who has resolved not to have any sexual relation with the
Respondent.
Felix C Zulu 2012/13
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5.
The Respondent denies Paragraph 13 of the Petition and avers that to the
contrary it is the Respondent and the children of the family who have been
physiologically affected by the Petitioner’s behaviour and she feels abused by
the Petitioner.
6.
The Respondent denies paragraph 14 of the Petition and avers that since the
marriage has not broken down irretrievably the Petition be dismissed with
costs.
Dated at Lusaka this
day of
Drawn up by:
2013.
Family Law Advocates
Stand No. 1234
Andrew Mwelwa Road, Rhodes Park
P O Box 54321
Lusaka
Advocates for the Respondent
To: The Petitioner and his advocates
Lusaka
When to apply for ancillary relief?
In either a divorce or judicial separation petition, the case has to come to a close
before one can apply for ancillary relief. Ancillary relief application are all chamber
applications and therefore are generally commenced by summons accompanied by an
affidavit in support, but where the law says start by notice then you go by notice. The
action is, however, never commenced by originating summons. Any order made by the
court takes effect immediately. Final maintenance order is only made after a decree
nisi is granted.
Applications by Notice. These mainly relate to applications for an order for
maintenance, lump sum payment order and a variation of settlement order. The
reasons for the application by notice is that usually there is normally no quarrel about
the orders per se. For example in the case of lump sum application all the applicant is
saying is that instead of paying them in instalments they now want the money paid in
Felix C Zulu 2012/13
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one lump sum. In variation orders, the payment is already settled but the applicant
only wants to vary it.
For ancillary relief see part II of the Matrimonial Causes Act 1973 UK and part VIII of
the Matrimonial Causes Act 2007.
Ancillary relief include:
(I)
An avoidance of disposition order (to restrain the other spouse disposing off
matrimonial property);
(II)
Lump Sum payment order;
(III)
Order for Maintenance pending suit;
(IV)
Periodic payment order;
(V)
Secured periodic payment order;
(VI)
Settlement of property order;
(VII)
Transfer of property order;
(VIII)
Variation of settlement order; and
(IX)
Variation order.
For lump sum payment order and transfer of property order you commence by the
application by way of Notice, the rest you use Summons.
15.04.2013.
Presumption of Death.
Under section 24 of the Matrimonial Causes Act 2007 the person who applies does not
what to be called a widow or widower but to be divorced. After 7 years has elapsed
the party goes to court with evidence that the other spouse is dead. The presumption
is for the purpose generally for divorce and the marriage has broken down because of
the absence/presumption of death and the court after satisfying itself will declare
Felix C Zulu 2012/13
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that the other party died until the contrary is proved. However, the section does not
say when the contrary can be proved.
If the other party appears 30 days after the prouncement the party must go back to
court to give reasons where they have been and why they were not in touch with
people that they should have normally been in touch with. By going to court you are
showing that the presumption was not strong enough and that the court should
therefore declare you still alive and there by the marriage is still subsisting. The
trouble comes in where the other party has also moved on and remarried in the mean
time what becomes of the new marriage and the parties. And if he finds the other
party pregnant and accepts the condition he has found her but there was no marriage
he can move on with her.
There is nothing that stops the court from revisiting the matter even after a decree
nisi or decree absolute was given because then the presumption was not strong enough
and should ideally be reversed or annulled. And the best way of commencement is by
asking for a review of the decree.
Use section 39 of the Matrimonial Causes Act 2007 and may state the following in your
petition for presumption of death: “The Petitioner has not cohabited with the
Respondent for more than seven (7) years”. And in the prayer you put that the
Respondent is presumed died.
22.04.2013.
In a domestic relations matter when you are faced with a document that is vague you
must ask for further and better particulars as the case may be. You first write to the
person that has written the document giving them a specific period in which to give
you the ‘Further and better particulars’ then if they don’t respond appropriately you
apply before the Deputy Registrar by Inter Parte Summons supported by an Affidavit
and the letter you wrote must be an exhibit in the supporting affidavit.
You usually give the other opponent 14 days to give you ‘Further and Better
particulars’. Once an order has been given it is the duty of the applicant to draw the
order as pronounced by the court.
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Domestic relations is about termination of marriage and relations thereof. It is not
everything that deals with the family that is domestic relations.
The enforcement of matrimonial orders. Most people, wrongly so think that the
matrimonial order cannot be enforced for example an order has been made for
custody, how do you enforce it? You can enforce it by amending the order so that the
order has more teeth, can enforce by Writ of Fifa, have an application to have their
property sold for a lump sum payment or an attachment of their earnings.
Once a decree nisi is obtained (i.e. the Petitioner has proved to the court that the
marriage has broken down irretrievably22) and perhaps issues of maintenance and
custody are still being dealt with, one spouse bothers the other and still wants to live
as man and wife. What can the other spouse do? The first spouse is being
contemptuous of a court order i.e. the decree nisi and the complaining spouse can cite
him/her for contempt of court.
Similarly if there is an order for judicial separation, i.e. a decree nisi or an order for
judicial separation are orders of the court and if they are not obeyed then the violator
can be cited for contempt of court. Note: only file for an injunction if there is no
court order in the first place e.g. before a decree nisi is granted. Similarly, if a court
order for custody and access is being violated e.g. the former husband is being refused
access to the children every other weekend, then he can file for committal
proceedings for contempt of court.
However, if a party fails to pay a maintenance order, citing for contempt is not the
best way to proceed. E.g. if a divorced husband fails to pay K2,000.00 a month for
each of two children for two months, he owes K8,000.00. Here the former wife can
issue a Writ of FIFA to recover this money from her former husband. Citing for
contempt is not an appropriate way forward as the wife will not get her K8,000.00
quickly.
In the High Court:
Committal proceedings; Writ of FIFA
22
Although there is a decree nisi, the two spouses can if they wish try to reconcile and if they do they can
try to persuade the court to rescind the decree but if it will not then they may have to remarry.
Felix C Zulu 2012/13
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In the Subordinate Court:
Committal
23
proceedings;
Writ
of
FIFA,
judgment
24
summons ; attachment of earnings .
06.05.2013.
Know how the parties are. And when you are approached by a person for how to stay
the process make sure that the marriage has been in existence for more than one
year. Must also make sure they tell you the whole story of their marriage and give you
all the documents.
The petition tells the story it must tell the whole story and if you therefore leave
something it is a wrong document and for exam purposes then you get zero for the
document.
The reasons for the break down of the marriage irretrievably is not because of the
particulars.
What goes in the prayer, you want the court to dissolve the marriage, custody of the
children and if you don’t want custody leave it out, cannot pray that custody be given
to the Respondent. If in your instructions your client wants support for maintenance it
has to be in the prayer. If they want periodic payments the petition should say that.
Then must pray for the order for costs. You may be instructed that the Petitioner
would bear the costs so you leave it out.
There is no harm at the end of the petition to leave it for the client to sign but it is
still valid if signed by the advocate of the Petitioner. Best practice is for the Petitioner
to sign it.
Then you must put clearly the Respondent address of service. It is still your duty to ask
the client about reconciliation even if there is sure signs that the Petitioner or
Respondent has shown that they don’t want or expect there to be any reconciliation.
Service of the petition should be personally to the Respondent. Amendments to the
petition are allowed. Make the application by summons and you can have a
23
24
If FIFA fails to get anything
Possible but not favoured in Zambia
Felix C Zulu 2012/13
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Supplementary petition. This is a Full Petition with that supplementary item added to
the first petition. If acting for the Respondent can you also act for the co-Respondent?
There is nothing wrong to act for both.
Must have a Notice of Proceedings, Acknowledgment of Service, it is your duty as
lawyer for the Respondent to have these two. Make sure when responding to the
petition in your defence petition you must make sure you know what the defence is
and it must be viable e.g. if says the Respondent is violent your answer or defence
must not be that every time you had an argument the Petitioner would back up the
Respondent to the wall and you reacted by hitting the Petitioner.
If the party is consenting to the divorce draft the consent and don’t want for the
Respondent to bring or prepare the consent.
Is it possible for the Petitioner to ask that the petition should not be heard by this
judge but another judge. Yes you can ask and the evidence rules apply here just like in
any other type of a case.
13.05.2013.
The petition tells the story.
And a petition is not an affidavit so there is a way of telling the story, it is not sworn
before a commissioner of oath.
In defence you are to denial what the Petitioner is saying only agree these common
parts that are indeed the truth.
You have to look seriously on adoption and know it all. And also look at maintenance
does it only apply to affiliation, NO.
Wilful neglect commences by originating summons. When asked to advise you must
advice and tell stories.
Procedure when filling Petitions
An advocate acting for the Petitioner must drive the case to trial. he should therefore,
apply for directions, make sure that when the 29 days elapses you chase the court for
a hearing date because if you do not, your case will take long. Ensure that as you are
Felix C Zulu 2012/13
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chasing the petition to be given a trial date you also draft summons for maintenance
or custody. In the petition you make prayer for maintenance but you should move the
court by summons for maintenance. You then prepare an affidavit in support of
summons for maintenance or custody. In most cases the court is quick to give custody
immediately after giving decree nisi. In such a case, once the date of hearing has been
given, you simply prepare affidavit in support of the order by the court.
If there is maintenance pending suit, then it shall take precedence, i.e. you do not
have to wait for a decree nisi to proceed with maintenance proceedings.
REQUEST FOR DIRECTIONS
The Petitioner HEREBY applies to the Deputy Registrar for directions for the trail of
the cause:
1.
It is Desired that the cause be hears at Lusaka.
2.
The Petitioner resides at House No. 4 Lake Road, Woodlands, Lusaka.
Here 1 above gets its strength from 2 since if you state a different town
in 1 the Court would be interested to know why.
3.
Notice has been given in accordance with Rule 34(3) of the Matrimonial
Causes Rules 1973. A statement as to the Respondent and his witnesses has
not been received.
If it has been received, indicate as such including the list of witnesses.
4.
The probable length for the hearing is one hour.
The time here is dependent on the number of witnesses at point 3. Where
the witnesses are not indicated, counsel for the Respondent may not be
allowed to introduce witnesses not earlier mentioned.
The Petition was served on the Respondent at house number 3456 Kamwala, Lusaka or
the Petition was served on the Respondent’s advocates Messrs. ZIALE Chambers on the
20th day of April 2013 by Mr. Anthony Kabwe. The time allowed in the Notice of
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Proceedings for giving notice of intention to defend was 29 days. The Respondent has
not given any notice of intention to defend.
Dated at Lusaka this
day of
2013
Drawn by Messrs. Law and Order Advocates
1st Floor Suite 234, Bankers Building
P.O. Box 12345
Lusaka
The foregoing shall appear on page 1 that is for the lawyer. Page 2 for the Registrar
shall appear as hereunder:
DIRECTIONS FOR TRIAL
I am satisfied that he requirements for Rule 33(1) of the Matrimonial Causes Rules
1973 have been complied with and I direct that the case or cause be heard at the High
Court at Lusaka.
.....................................................
Deputy Registrar
If there are other directions, the Deputy Registrar (or Registrar) will indicate
accordingly. After filling the directions for trial, you wait to be given the hearing date
which comes by way of notice of hearing telling you the date and the judge before
whom to appear.
As counsel acting for the Petitioner, you have to follow the court marshal seeking the
date and time allocated for hearing the matter. Without following up, the judge may
give you a date following the ordinary cause list even when the case is not defended
or not in contention. Where the Petition is not defended the judge would ordinarily
meet you in chambers at an earlier time than when matters on the cause list for the
day begin in the open court.
When given a date, prepare your client and witnesses. If it is a matter requiring a lot
of explanations in court, you have to sit down and get the evidence from the witnesses
and determine whether their evidence or their presence in court will be required.
When the day for hearing comes up, you must be at court at least 10 minutes before
the matter is called out. If the matter is one that is defended you have to let your
Felix C Zulu 2012/13
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senior, if any, begin even if he represents the Respondent, unless the senior allows
you to begin. He will introduce himself and you to the judge.
You begin the case by first calling the Petitioner. In most petitions and replies, most
things are agreed for example the names of the parties, date of the marriage, the last
address where the parties lived together etc. The court will therefore, allow you to
lead your client on the agreed facts. Upon giving evidence in chief the Petitioner will
be crossed examined by the Respondent or the advocate where they are represented
by counsel. At the end of cross examination the advocate for the Petitioner may reexamine the Petitioner. This happens to all the witnesses that are called at trial even
for the Respondent only that the Respondent’s counsel leads the process now.
At the end of trail, you may want to make a submission or the court may ask you to
submit your case. You may also end with a prayer without rendering submission. If the
case is defended, you may also end with a prayer without rendering submission. If the
case is not defended, you may need to have more evidence in case the court rules
against you.
Where there is a cross-petition the court is at liberty to say that it has heard from
both parties, on the Petitioner’s petition, marriage has not broken down irretrievably
but that with regards to the cross-petition, the court is satisfied that the Respondent
has proved that the marriage has broken down irretrievably, and therefore, grant a
decree nisi.
When the court grants decree nisi, the court will go further if there are children or
prayer for maintenance to say that it has adjourned the question of maintenance and
custody of the children to chambers or the Deputy Registrar’s chambers. If the court
does not state so, it is becomes difficult to do what should follow. If you apply for
custody of the children after the decree nisi, the court will question where you get the
authority so to apply.
The court may grant the decree nisi and immediately decide on the question of
custody of the children. This would be in a case say where the Petitioner is before the
court because the Respondent has deserted leaving the Petitioner with a child of say 2
years old. Here the court may after finding that the desertion has been proved, grant
custody to the Petitioner because the Respondent is nowhere to be found and the
Respondent has not stated on the question of being heard. If the court does not say so,
apply giving reasons for needing custody.
Where the question of custody has been adjourned to chambers, you go back to your
chambers and prepare Inter Parte Summons for Custody of the children of the family
Felix C Zulu 2012/13
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pursuant to section 72 of the Matrimonial Causes Act 20 of 2007 the summons are
supported by an affidavit.
The summons is always accompanied by supporting affidavit, i.e. Affidavit in Support
of Summons for Custody. The Affidavit is to be deposed to by the one applying and
NOT the lawyer because then the lawyer would be giving hearsay evidence. The
applicant should tell the court why he should take care of the children.
The main thing for the applicant is to prove that the children will not be unduly
influenced; will have food, shelter and will generally be brought up normally. In case
of small children, the court will in its wisdom prefer that the custody of children be
given to mothers as they are considered to have better understanding of small children
compared with fathers. From precedent, courts look at a child of below 7 years as one
who ought to be with the mother unless proven that the mother is very useless, e.g.
an alcoholic and therefore, incapable of properly taking care of the child. However,
even if the court holds that the mother is useless, it may not necessarily grant custody
to the father but may grant custody to near relatives with the supervision of the social
welfare officers.
The question of dealing with children is very paramount in divorce matters and the
court may not grant the prayer if the question of children has not been resolved. The
court is ready to give custody to an applicant who is not the biological father even
when the mother has filed an affidavit denying that the applicant being the biological
father. Hence t=even if the applicant is no the biological father, the court may
proceed to grant the custody in order to protect the best interest of the child. It is
said that even where it is proven by DNA test that he is not the father, the court may
not automatically deny the applicant custody.
After Obtaining a Decree nisi
In order to make a decree nisi absolute, counsel (for the Petitioner or the Respondent)
has to make an application to the Deputy Registrar form 8 of the Matrimonial Rules
1973 at page 78 and see Part VII (sections 41 to 50) of the Matrimonial Causes Act 20
of 2007.
Application for Decree nisi to be Made Absolute
The Petitioner applies to this court that the decree nisi granted on the
Felix C Zulu 2012/13
day of
Page 117
2012 in his/her favour be made absolute.
Dated at Lusaka this
day of
Drawn up by:
2012
ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner
When the court grants a decree nisi, you have 6 (six) weeks before you can be granted
a decree absolute in which period you can reconcile but once you are granted decree
absolute, then that marriage cannot be retrieved. An application for making a decree
nisi absolute is by way of notice. The application is to the Deputy Registrar (not the
judge) for a decree absolute which does not have to be sent to the other side. No
affidavit accompanies the application. The Deputy Registrar will look at the case
record to see if the orders (re: custody of children, maintenance etc.) have been
complied with. If the Deputy Registrar is satisfied that the orders have been complied
with he will write on the application “Granted” and sign and date it. If he is not
satisfied that everything has been done e.g. the orders made to ensure the children’s
welfare have not been complied with, or the application is made before six weeks has
elapsed, Deputy Registrar will not grant the application.
Make a search to see if the DR has signed “granted” on the application after it has
been lodged. If so, then go to the Government Printers and get a DIV 8 Form (i.e. a
Certificate of Divorce). Fill in Form 8 with the details from the case record and then
get it sealed with the High Court Seal. Without the seal the certificate is not official.
Once the certificate is sealed the marriage is over (dissolved).
When can a divorce petition be reheard?
1.
If the matter had gone for appeal, the Supreme Court may send the matter
back to the High Court and order that the matter be reheard. Remember that
in divorce matters you can only appeal on a question of law and not fact
because it is very unlikely that the judge may misdirect himself on a question
of facts.
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2.
In a situation where it is brought to the attention of the court that the court
was misled with the facts brought before it.
Enforcement of Matrimonial Orders
Once a decree nisi is obtained (i.e. the Petitioner has proved to the court that the
marriage has broken down irretrievably25) and perhaps issues of maintenance and
custody are still being dealt with, one spouse bothers the other and still wants to live
as man and wife. What can the other spouse do? The first spouse is being
contemptuous of a court order i.e. the decree nisi and the complaining spouse can cite
him/her for contempt of court. Similarly if there is an order for judicial separation.
I.e. a decree nisi or an order for judicial separation are orders of the court and if they
are not obeyed then the violator can be cited for contempt of court. Note: only file
for an injunction if there is no court order in the first place e.g. before a decree nisi is
granted. Similarly, if a court order for custody and access is being violated e.g. the
former husband is being refused access to the children every other weekend, then he
can file for committal proceedings for contempt of court.
However, if a party fails to pay a maintenance order, citing for contempt is not the
best way to proceed. E.g. if a divorced husband fails to pay K 200,000 a month for
each of two children for two months, he owes K 800,000. Here the former wife can
issue a Writ of FIFA to recover this money from her former husband. Citing for
contempt is not an appropriate way forward as the wife will not get her K 800,000
quickly.
In the High Court:
Committal proceedings; Writ of FIFA
In the Subordinate Court:
Committal
proceedings;
26
Writ
of
FIFA,
judgment
27
summons ; attachment of earnings .
(Separation and) Maintenance Agreements
25
Although there is a decree nisi, the two spouses can if they wish try to reconcile and if they do they can try to
persuade the court to rescind the decree but if it will not then they may have to remarry.
26
If FIFA fails to get anything
27
Possible but not favoured in Zambia
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A couple whose relationship is in difficulties may prefer to separate and regulate their
financial affairs by private agreement rather than by taking legal proceedings28. Once
they agree they should put it down in writing - see Matrimonial Causes Act s.34(2) and have it signed preferably before witness(es) as often the providing spouse will
default on the agreement at some stage thereafter. An oral agreement, while difficult
to prove, is acceptable29 (but falls outside the provisions of s. 34 of the Matrimonial
Causes Act), but only if the spouse can in fact prove to the court that there is
evidence to prove the substance of the maintenance agreement e.g. concurrence with
the agreement for a period of time.
The general principle is that a husband and wife may make legally enforceable
agreements regulating their financial affairs but that the courts may vary any such
agreement. Hence it is not possible by private agreement to oust the court’s
jurisdiction. E.g. the agreement cannot have paragraphs or sections saying “I will
provide K x million a month provided my wife does not go to a court of law”. Such a
fetter on the court’s jurisdiction is not acceptable. Similarly, it is not possible to state
that any arrangement made cannot be changed at some later date However, the
general principle of the legal enforceability of such agreements subject to variation by
the courts is the result of conflicting pressures and the law governing the
enforceability of separation and maintenance agreements between spouses is by no
means straightforward.
To be legally enforceable, the court will first ask whether what took place between
the parties was intended to create legally enforceable obligations or merely a
domestic arrangement. Initial assumption is that souses do not in their ordinary dayto-day lives, usually intend to enter enforceable contracts with each other30. However,
if a man and his wife separate and make an arrangement to govern their future
financial relationship, the court will usually be prepared to impute to them an
intention to create legal relations.
If a party wishes to vary a maintenance agreement but the other party refuses, if the
variation amounts to an alteration of the maintenance agreement, the only way to
have it varied is by going to court to alter the agreement. If there are no on-going
28
Note: if wife remarries, maintenance will stop but any child being maintained will continue as “new” father is not
responsible for maintaining the child of another man.
29
Peters v IRC [1941]
30
Per Lord Upjohn in Pettitt v Pettitt [1970] AC 777
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proceedings in court, no set procedure is set out and the court can only be moved to
alter the agreement by way of an Originating Summons and supporting affidavit
explaining why the agreement should be varied/altered - state facts only not
evidence, prayers or law (in the High Court) or by filing an Originating Application in
the Sub-ordinate court without an affidavit.
Note: Property Settlement is not just dividing the property between the couple. The
court will make a settlement that it deems fair and one party may get nothing, but the
court has still “settled” the property.
Guardianship:
The mother of a minor child has died and is staying with the grandmother. How does
the grandmother get the father to maintain the child? In England, she would have to
apply to Court become the legal guardian of the child so that the Court may declare
her as such. In England, a person cannot just look after someone else’s child, he or she
must show to the Court that he/she is genuine and has the child’s best interests and
welfare at heart - in Zambia things are more informal. Once she is a guardian, she can
then sue the father for maintenance in the High Court. The procedure is not specified
in Zambian legislation so she would have to use the procedure as stipulated (in the
latest Guardianship Act?) applicable in England. At the moment, this is by way of an
Originating Summons supported by an affidavit that states that she is the legal
guardian, declared as such by such and such a court on such and such a day.
In a judicial separation you pray for decree of judicial separation. During the period of
judicial separation, you may apply for an interim custody order of the children of the
family. The reason for separation would be to:
a)
Give each other time to reconcile;
b)
Give each other space;
c)
Give each other time to prepare for divorce.
Would you ask for custody of the children when you are on a non-judicial separation?
That action would be commenced by Originating Summons. The children should be
physically in touch with the parent who has been granted access. In some situations it
may become difficult for the parents to see each other eye to eye probably due to
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hostilities resulting from the manner in which they divorced. It may therefore, become
necessary to make arrangements for the parents to see the children in the absence of
the other parent. In extreme cases, you may engage the services of social welfare
officers who may be tasked to bring the children to the other parent and return them
thereafter as agreed. The principle is that the children should not be deprived of
physical contract with the other parent.
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