CAVENDISH UNIVERSITY
ZAMBIA
DISTANCE LEARNING DEPT.
BACHELOR OF LAWS
(LLB)
STUDY MATERIAL
Module Name: FAMILY LAW
Module Code: CUZL 261
Stage: Y1S2
Prepared by Friday BESA (LLB-UNZA)
PROLOGUE
Family law is probably one of the easiest but undeniably one of the most important
courses. It is one of the easiest because; a human society is constituted by a family as its
smallest unit. Although discussion of the family takes a legal form in this course, it is
easy to relate with because it portrays our everyday experiences as individuals belonging
to a family. One can therefore excel in family law without any prior knowledge of the
law.
This module comprehensively assembles all aspects of family laws as taught according to
the University of Zambia Syllabus. It is therefore in line with the Zambian family law
legal system. A study of this module, coupled with reference to recommended family law
text books as stated in the module description will therefore leave an average student
equipped with sufficient knowledge to apply her/herself to any family law exam and later
on any family law situation that he/she may be encountered with. The writer herein
sincerely hopes it will be an effective guide to the study of family law both for a student in
a full time class and one undertaking the study either part-time or by distant education
Reference and citations have been obtained from the most relevant family law text books
and material.
It is sincerely hoped by the writer that the reader will find it of much help
Friday Besa (LLB- UNZA)
2007 © Cavendish University – Zambia
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TABLE OF CONTENTS
Title
Page No.
Module Descriptor …………………………………………………………..3
Introduction…………………………………………………………………..4
The Legal Framework of the Laws of Marriage…….………………………..4
What is Marriage………………….…………………………………………..5
Types of Marriage…………………….………………………………………6
Rights and Responsibilities under Marriage…………………………………11
Nullity of Marriage…………………………………………………………..12
Divorce……………………………………………………….…………….. 17
Divorce Under Customary Law……………………………………………. 22
Consequences of Divorce………….………………………………………...25
Domestic Violence………………….……………………………………….29
Ouster Orders………………….…………………………………………….30
Judicial Separation………………………………………………………….31
Maintenance………………………………………………………………...31
Affiliation Orders………………………………….………………………...34
Custody of Children…………………………….…………………………...34
Adoption…………………………………….……………………………….35
Child Rights………………………………………………………………....38
Legitimacy…………………………………………………………………..41
Succession……………………………………………………………………44
Testate Succession…………………………………………………………...46
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MODULE DESCRIPTOR
CUZL261 FAMILY LAW
MODULE AIMS
This module aims to introduce the student to the institution of marriage, laws relating to it and
other matters incidental thereto.
LEARNING OUTCOMES
By the end of the module the students should be able to:a)
b)
c)
d)
Define the contract of marriage.
Show understanding of divorce and the law applicable to statutory marriages
Demonstrate understanding of consequences of divorce.
Show understanding of domestic violence, judicial separation, adoption, legitimacy and
succession
MODULE CONTENTS
1. Contract of marriage
2. Divorce
¾ Under statutory marriage
¾ Under customary marriage
3. Consequences of divorce
¾ Property settlement
¾ Custody of children
¾ Maintenance
4. Clean break
5. Domestic violence
¾ Ouster orders
6. Judicial separation
¾ Affiliation orders
7. Adoption
¾ Child rights
¾ Wardship of a child
8. Legitimacy
9. Succession
MODE OF TEACHING
One and half hours of lectures, one hour of tutorial, and 30min of case study per week
ASSESSMENT
Continuous Assessment
(2 assignments 20%)
40%
Final Examination
60%
PRESCRIBED READING
L. Mushota ( ) Family Law in Zambia; Cases and materials;Lusaka: Unza press
Bromely on Family Law
2007 © Cavendish University – Zambia
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FAMILY LAW
INTRODUCTION
Family Law is arguably among the easiest branches of the law. It is easy generally
because everyone belongs to a Family one way or the another. Even those that may say
they do not have a family at least still have an understanding in general terms as to what
constitutes a family.
Everyone can be said to have relatives or relationships which have a potential of
crystallizing into marriage. Indeed we all know someone who has married, divorced or
died and we can all predict with considerable accuracy the effect of these developments
on an individual. It is these developments that family legislations seek to address.
The argument that family law is easy is premised on the assertion that a family is the very
fabric of society. A family is the smallest unit of society. Society is made up of a sum
total of families.
Because the family is the smallest unit comprising the building blocks of a society, it
follows therefore that the study of family law should stand with the study of a family.
The most basic composition of a family is a man, his wife and in appropriate cases
children. For a man to live with a woman in the manner envisaged here, they must be
married. This marriage could either be under the provisions of statutory Law or
customary law.
THE LEGAL FRAMEWORK OF THE LAWS OF MARRIAGE
It has been said that for a family to be formed, at least there should be a man and woman
forming a union. This union is called marriage. Marriage in this context should be
understood as only referring to a union between a man and woman. This is because
although in other countries especially in Western countries, members of the same sex
may legally become married, this kind of marriages is not legal in this country.
In Zambia, other than a man and woman who are married, a family can also be
understood in wider terms to include persons related by blood no matter how distantly.
However, for purposes of having defined legal obligations and entitlements towards and
from a person, some laws like the intestate succession Act Chapter 59 of the Laws of
Zambia have limited members of the family who may lay any form of claim to that
individual.
The legal framework is therefore tailored to reflect the foregoing. Although there could
be other pieces of legislation, the constitution, chapter 1 of the Laws of Zambia and the
Marriage Act Chapter 50 provide the primary legal framework of the laws of Marriage1
Mushota has observed that the two statutes acknowledge both civil law marriages and
customary law marriages. This is in accordance with the dual legal system that Zambia
1
Lillian Mushota; Family Law in Zambia; cases and materials; Lusaka: University of Zambia
2007 © Cavendish University – Zambia
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inherited at Independence. Both customary and civil laws have provided judicial
precedents and are therefore an important source of law.
WHAT IS MARRIAGE
The status of marriage is created by contact. The contract thereby created is based on
rights obligations, capacities and incapacities. When people get married, they assume
new legal status from which flow rights and obligations not only as between the fathers
but also with regard to their society.
Marriage also confers a status of legitimacy on children born to the parties. Since the U.N
convention on the rights of the child, however, labels on children born out of wedlock
have been removed. But the concept of legitimacy remains legally significant. In our
intestate succession Act and Wills Act, chapters 59 and 60 respectively, a child is defined
as that born in or outside wedlock and for the purposes of inheritance under those laws,
the question or fact of illegitimacy does not arise, provided the child was registered under
the births and deaths Act as being the child of one of the spouses, here we are talking
about the male spouse.
The legitimacy Act, Chapter 52 of the Laws of Zambia is law and recognizes children
born out of wedlock as illegitimate and provides for when and how they maybe
legitimated. For instance, when the parents to that child or children marry, or when the
child or children are adopted, the act of adopting confers legitimacy on children as if they
were born in wedlock, even if the adoptive parents were not married at the time of the
birth of that child. It can therefore be seen that the concept of legitimacy is to that extent
still legally significant.
The contract of marriage is a peculiar contract. The rights, duties and obligations do not
depend solely on what the parties have agreed. They depend on law statutory law,
customary law or religion. These laws and customs prescribe the rights and duties and
obligations of the parties. In general terms, the contract is created like any other contract
at the beginning of the relationship with offer and acceptance, consideration, consent or
willingness to contract.
It must be emphasized however that once a marriage relationship has been contracted the
resultant relationship moves away from the simple contract style relationship. For
example:
(i)
(ii)
(iii)
The concept of breach resulting in discharge is not applicable. There is only one
ground on the basis of which a marriage can be dissolved i.e. that the marriage
has broken down irretrievably.
The right to matrimonial property is regulated by the law upon dissolution of
marriage by a court of competent jurisdiction.
In the case of a party dying intestate, the intestate succession Act Chapter 59 of
the Laws of Zambia prescribes how the property may be distributed.
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TYPES OF MARRIAGES
(1) CIVIL LAW MARRIAGE
It is important to note that the Zambian legal system is predominantly made of received
law. Civil law is (therefore) based on received English law by virtue of the English
Extent of Application Act, Chapter 11 of the Laws of Zambia which makes common
law2, the doctrine of equity, and English statutes upto 17th August 1911 (the date when
Northern Rhodesia Order in – Council commenced), applicable to Zambia as well as
Statutes enacted by the Republican Parliament. Please check section 2 of that Act.
The Subordinate Court Act, chapter 28 of the Laws of Zambia also extends the
jurisdiction of a Subordinate Court in Matrimonial matters to make any orders which
maybe made by a court of summary jurisdiction under the summary jurisdiction
(Separation and Maintenance) Acts, 1895 to 1925 and section 11 of the Matrimonial
causes Act 1937 of the United Kingdom.
A civil law marriage is otherwise known as a statutory marriage. It is celebrated in
accordance with the provisions of the Marriage Act Chapter 50 of the Laws of Zambia.
The definition of a Civil Marriage was given by Lord Penzance in the famous English
case of Hyde v. Hyde (1866) LR 1 P & D 130 at page 133where he said;
Marriage is the voluntary union of one man and one Woman to the exclusion of all
others”
A closer look at this definition reveals the following
Voluntariness – Marriage should be entered into voluntarily. A person should not
against his / her will be coerced to enter into marriage otherwise such a
marriage will be deemed invalid
.
For life; Lord Penzane envisaged a situation where once parties entered into marriage,
they would remain married for the rest of their lives. This is largely because the English
law was tailored on Christian doctrines and one of the doctrines of the Christian faith
forbids divorce. However, we have all seen that in real life situations, marriage is not
necessarily a union for life since a couple can be allowed to divorce if circumstances
prevailing satisfy the legal conditions warranting divorce.
One man to one woman to the exclusion of all others. Under the Act, it is an offence for a
party who is married to contract another marriage. This is an offence called BIGAMY
“This is provided for by section 34 of the Marriage Act, which states that;
“Any person who is married under this Act or whose Marriage
2
Lillian Mushota Family Law in Zambia cases and materials; Lusaka: University of Zambia
2007 © Cavendish University – Zambia
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is declared by this Act to be valid, shall be incapable
during the continuance of such marriage of contracting a
valid marriage under any African Customary Law, but,
save as aforesaid, nothing in this Act contained shall affect
the validity of any marriage contracted under or in accordance
with any African customary law, or in any manner apply to
marriages so contracted”
Requirements for a valid civil law marriage
It has been said that civil marriages are governed by the Marriage Act. Under this act,
there are certain conditions that must be met in order for a marriage to be valid. These
are:
(i)
In Zambian, it is illegal for parties of the same sex to
Sex of the parties
purport to have married each other. “Gay Marriages” are therefore not practice in
this country. Any such association will therefore not constitute a marriage in
Zambia; for parties to constitute a Marriage they must be respectively male and
female.
(ii)
Consent - In certain cases, a party to a marriage may be below the age of 21
years of age. If that person is not a widow or widower, then for such a party to
validly enter marriage, consent of that person’s parents or guardians if the parent
is either unavailable, or insane must be obtained in writing before the marriage
can be celebrated. This consent initially should be given by the father. If the father
is dead, or is of unsound mind or is absent from Zambia, consent may be given by
the mother. If she too is dead, insane or absent from Zambia, then the guardian
must give the consent. If there is no consent given, no certificate or special license
will be issued. Section 17 of the Marriage Act is instructive on the foregoing. If
however such parent or guardian withholds consent unreasonably section 19 of
the Act empowers the Judge of the High Court upon application to grant consent
which will be as valid as that which would have been granted by the parent or
guardian of the under aged party.
(iii)
Notice – There must be notice of intention to marry, made on the prescribed form
to the Registrar. Section 6 provides that”
“No marriage shall be solemnized unless notice of the intended
Marriage shall have been given in the prescribed form by one of
the parties thereto the Registrar of the District in which the Marriage
is intended to take place not less than twenty one days before the date
of the solemnization ”
(iv)
Solemnization – A marriage celebrated under the Act must be solemnized. It may
be solemnized in any licensed place of worship by any licensed Minister of the
church or denomination to another. Every marriage must be solemnized between
2007 © Cavendish University – Zambia
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06: 00 am to 06:00 pm (18:00 hrs) with open doors, in the presence of two or
more witnesses besides the Minister. The law on solemnization is found under
section 20 of the Marriage Act. Section 21 provides that a Minister / Priest is not
to solemnize a marriage if he knows of any just impediments to such marriage nor
until the parties deliver to him the register’s certificate or the special license; as
the case maybe.
ENTRY OF CAVEAT
Section 13 of the Act allows any person with an interest to enter a caveat at when the
notice of intention to marry has been given to the Registrar of marriages. That person
entering the caveat must explain the reasons for the entry of such caveat before the
Registrar. The law then obliges the Registrar to refer the matter to the High Court for
determination where upon hearing the parties to be married and the person who has
entered the caveat the court is satisfied that the certificate ought to be issued, then the
court will cancel the word “forbidden” which would have been entered on the register
and accordingly allow the marriage to take place.
OFFENCES AND PENALTIES UNDER THE ACT
A marriage is a Union that is respected and the court at all material times will try as much
as possible to respect the institution of marriage. Because of the foregoing, certain
prohibitions are outlined by the marriage Act. Breach of some of those rules amount to
criminal offences which have custodial sentences as penalties thereof. They are discussed
hereunder:
(i)
Bigamy – We do remember that in the case of Hyde v. Hyde, Marriage was
defined as the voluntary union of “one man and one woman”. It is therefore an
offence for any party to a Marriage to contract another Marriage while one valid
Marriage under the Act is still substring.
Section 38 of the Marriage Act Provides that;
“Any person who –
(a)
Contracts Marriage under this Act, being at the time married in
accordance with African customary law to any person other than the
person with whom such marriage is contracted.
(b)
Having contracted a marriage under this Act, during the continuance of
such marriage contracts a marriage in accordance with African
customary law, shall be guilty of an offence and liable on conviction to
imprisonment for a period not exceeding five years.
(ii)
It is an offence to be an accomplice to bigaimy i.e. to get married to an individual
whom you know to be validly married under the Act. The penalty for being an
accomplice as provided for by section 39 of the Act and it is imprisonment for
five years.
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(iii)
(iv)
False Declaration – Any body who declares in an Affidavit with regard to a
marriage any information he / she knows to be true or without caring to find out
its truth or falsity will be liable on conviction to imprisonment with or without
hard labour for a period of one year as pursued for by section 40 of the Act.
False Pretences in connection with consent to Marriage. If a person falsely
pertains his consent is required or any who creates any falsity with regard to the
requirements for a valid manage will be guilty of an offence and liable to two
years imprisonment.
(2) CUSTOMARY MARRIAGE
We have been looking at statutory or civil marriage. That type of marriage is mainly
governed by the Marriage Act chapter 50 of the Laws of Zambia. However, that is not the
only type of marriage recognized in this country. The second type of marriage subsisting
in Zambia is Customary Marriage.
“Customary law comprises local customs and traditions of indigenous peoples and form
the other system in the dual legal system of Zambia3” Mushota has further observed that
by section 68 of the Local Court Act, chapter 29 of the Laws of Zambia, the Chief
Justice must formulate the rules of practice and procedure in the administration of
customary laws. This however has not been done. Customary law is unwritten and is
orally passed from one generation to the next and varies from locality to locality. Zambia
has seventy three ethnic groups each of which practices its own customs and traditions,
although there are many similarities mainly because of intermarriages and other forms of
interaction.
It can therefore be said from the foregoing that customary marriages cannot be said to
have any specific form as it differs from locality to locality to represent the customs and
traditions of a particular ethnic group. When the court is called upon to adjudicate on a
dispute arising from a customary marriage, they may need the aid of assessors in arriving
at its decision. Assessors here are individuals that are knowledgeable of the customs,
traditions and culture of a particular ethnic group, one such case is that of Martha Mwiya
v. Alex Mwiya4. This was a case commencing in the Mulobezi local court in Sesheke
District in the Western Province of Zambia where the parties were married under
customary law. Martha Mwiya was divorced under the customary law governing the
marriage which did not entitle a wife on being divorced to property acquired during the
marriage even if she helped acquire it. The parties were a modern couple in spite of the
law governing their marriage and Martha Mwiya was of the opinion that she had
contributed to the acquisition of the property and was entitled to an equitable share. She
also wished to be maintained financially. Both these demands are available to a spouse in
a civil marriage. The local court decided that under Lozi customary laws, a divorced
wife was neither entitled to a share of the property nor to maintenance. Martha Mwiya
appealed to the Sesheke subordinate court where the decision of the local court was
applied. She again appealed to the High Court. Mr. Justice Ernest Sakala (Now Chief
Justice of Zambia) sat with two Lozi assessors who unanimously agreed that there is no
3
4
Lillian Mushota : Family Law in Zambia, cases and materials, Lusaka : University of Zambia
(1977) ZR 113
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Lozi custom which entitles a divorced wife to maintenance or share of the property, even
if she helped to acquire it.
It can be seen from the above case that customary marriages are just as valid at law as
civil marriages and the court will give effect to customary practices if they are not
repugnant to the rules of material justice and good conscious.
It will be recalled that in the case of civil law, marriage was defined as a union of one
man and one woman. In the case of a customary marriage, every marriage contracted is
potentially polygamous. This means that a man can marry one or more wives and he will
not suffer any repercussions at law. Ironically, in some traditions like that of the Tonga
people, a man is actually expected to have more than one wife. This is seen as exhibiting
his powers in being capable of economically and socially taking care of his women.
Marriage in traditional society is therefore the Union of one man to one or more women.
Again, in some traditions, it is debatable whether this union could be said to be
voluntarily as there is the presence of arranged marriages. Once a marriage has been
arranged, a woman is expected to submit without questions.
Furthermore, it can not be said that marriage is a union for life. This is so because where
a woman exhibited short comings e.g. being incapable of properly taking care of her
husband, disrespectful or “under taught” in the ways of taking care of the home then the
man could take the woman back to her people and they would demand the return of
“lobola”. In a nutshell, this would amount to divorce.
In the case of customary marriages, the factors that may affect the validity include marital
status of the woman, that of the man does not matter, consent of parents, marriage
payments and the giving away ceremony. These may take different forms but are
important to validate marriage.
(3) COMMON LAW MARRAIGE
This kind of marriage is not applicable in Zambia and is certainly not practice as it is
frowned upon by our tradition. It is a phenomenon where people live together in a
manner similar to husband and wife for a long period of time without necessarily taking
any formal steps to marry. In this type of marriage, marriage is inferred from the long
association of parties with the result that society believed parties to be husband and wife,
and treated them as such and indeed the parties portrayed themselves as such. Usually
there is no time frame, but the courts will determine such a marriage on what it considers
to be a reasonable time.
In the Zambian case of Somanje v. Somanje5 the parties to that marriage purported to
have entered into a civil law marriage, as the marriage ordinance in force at the time did
not apply to Africans, the court held the marriage to be invalid at the time, however since
the parties had lived together as husband and wife and society had perceived them as
such, the court held that marriage to be a common law one. It must be observed that
5
(1972) ZR 301 (H.C.)
2007 © Cavendish University – Zambia
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common law marriages are not recognized in Zambia and Lillian Mushota has argued in
her book at page 70 that the High Court misdirected itself in the case of Somaje above.
There are instances where a validly married man or woman may start co-habiting with
another person. At law, no rights and duties may attach to this type of arrangement.
Infact, this kind of relationship may at best be perceived merely as fornication. In
Zambia, this kind of extra Marital relationships are considered immoral and against
public policy for even under customary law, the parties must undergo marriage
requirements to be recognized as married.
Judge darling in the English case of Upfill v. Wright6 likened a woman who was a
mistress to her man friend, to a prostitute he said;
“I do not think that it makes any difference whether the Defendant
is a common prostitute or whether is merely a mistress”
RIGHTS AND RESPONSIBILITIES UNDER A MARRIAGE
It was stated much earlier on that the conditions that govern marriage are not set by the
parties contracting to marry but by the law. Accordingly, there are certain rights and
certain responsibilities found in marriage set not by the parties but by the law which the
parties can demand from the other in the case of rights and perform for the benefit of
another in the case of responsibilities.
(i)
(ii)
(iii)
6
The parties to a marriage are entitled to conjugal rights. It is common cause that
the only established institution in which sexual intercourse can be demanded as of
right is marriage. There is infact an implied consent to sex in marriage. In the
absence of a good reason, it is therefore unreasonable for any party to a marriage
to deny another sexual intercourse. Infact if refusal to sex was to prolong in a
marriage it could be said to be unreasonable behaviour on the basis of which
divorce can be granted.
In the case of civil marriage, the parties are both entitled to matrimonial property
and in the event that they are divorced, the law will provide a mechanism on the
basis of which the property will be shared. Where sharing of the property
becomes an issue, the matrimonial causes Act 1973 of England, applicable is the
source of law on the procedure to be followed.
In the case of customary law, the method used to share property is provided for by
various customary practices based on which ethnic group the practice belongs to.
The Chibwe case has however provided what could be considered to be a
consistent formula.
A party to a marriage in a weaker financial position is entitled to reasonable
maintenance and provision from the party with “a deeper pocket”. It is an offence
for a spouse under the penal code to neglect to maintain a spouse or the family. In
(1911) 1 KB 506 at 510
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the case of the civil law, it does not matter whether the spouse who is financially
better is male or female. In customary marriages however, it is the man who has a
responsibility to maintain his wife and it would be infact a shame for an able
bodied man to demand that his wife should maintain him.
It can therefore be seen that the right of one party to a marriage to demand maintenance
provides a reciprocal responsibility on the other to provide maintenance for that party
who is demanding maintenance.
Furthermore, a party may also demand that procreation should take place. There are
several other rights and responsibilities that are attached to marriage. The list may be not
be exhausted.
It can be said that with regard to rights and responsibilities of the parties in a marriage,
minor variations may subsist between the different types of marriages viz-a-viz civil
marriages and customary marriages inter se; however, as the institution of marriage can
be said to be fundamentally constituent of the same ingredients, these variations are so
minor that a general rule as to what constitutes rights and responsibilities (obligations)
can quite easily be formulated.
NULLITY OF MARRIAGE
It is as observed by Lillian Mushota, a fundamental human right recognized in civil law
that men and women of marriageable age have the right to marry of their choice and to
found a family. However, the existence of substantial and fundamental defects and
irregularities in the contract of marriage may result in a marriage being declared a nullity
when it is void ab nitio under section 11 of the Matrimonial causes Act, 1973 and
sections 32 and 33 of the Marriage Act of Zambia or voidable under section 12 of the
Matrimonial causes Act. 1973. Upon nullifying the marriage under these provisions, the
court has the jurisdiction to deal with questions of property settlement and child custody
where applicable.
A void marriage is one that is null and void with no legal effect from the start, while a
voidable marriage is one valid until it is annulled during the life time of the parties to it.
Lord Green Master of Rolls in Reneville v. Renevile7 made a clear distinction between
void and voidable marriages when he said
“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”.
7
(1948) ALL DR 56 at 60
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This implies that, there is no need to go to court to declare it null and void. The parties
can quite easily go their separate ways. The petitioner would however do well to present
the matter to court for a declaration for avoidance of doubt.
Further Lord Green went on
“ A voidable marriage is one that will be regarded by every
Court as valid subsisting marriage until a decree annulling
It has been pronounced by a court of competent jurisdiction”.
Nullity is available under civil law by the Marriage Act Cap 50 and the matrimonial
causes Act 1973 and it is also available to parties married under customary law. The basis
for nullifying a civil marriage, is however generally different.
i.
VOID MARRIAGE
One of the requirements for a valid civil marriage is that the parties must have
attained the marital age of twenty-one unless if sixteen and above that, they have
obtained written consent from their parents or legal guardians8
The circumstances that make a marriage void are laid out in sections 32 to 34 of the
marriage Act.
In section 32, the law provides that a marriage shall not be valid which, if solemnized in
England would under the law relating to prohibited degrees of marriage for the time
being inforce in England. They would be void on the ground of kindred and affinity.
Thus a valid marriage cannot be contracted within prohibited degrees. A degree is a
parent-child link and is computed from the nearest common ancestor of the parties in
question. Included in the chain are all persons related not only by blood (i.e.
consanguinity) but also by marriage (affinity). Thus a man may not marry his sister, his
mother, daughter, his wife’s mother etc. in other words, a man may not marry his
relative; related to him either by blood or by marriage.
Further more section 32 (1) (b) provides that a marriage shall not be valid if contracted
when one of the parties thereto is already married under customary law to any person
other than the person with whom such marriage is had where a person is already married
and he / she contracts another marriage, then he is guilty of an offence of bigamy.
In the case of The people v. Paul Nkoma9.
The accused who was charged with bigamy had gone through a ceremony of marriage
under the Marriage Act when his first wife, whom he had married under customary law
8
9
Lillian Mushota; Ibid Page 104
(1978) ZR. 4 (H.C)
2007 © Cavendish University – Zambia
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was still living. In his defense, he submitted that he had terminated his first customary
marriage by a letter and he believed that the marriage had ended. The first marriage had
not been validly dissolved. It was held that:
(i)
(ii)
Bigamy is committed if a person whose spouse is still living goes through a
ceremony of marriage with another which, but for the earlier subsisting marriage
would have resulted in a valid marriage.
A customary marriage is a valid marriage for the purpose of considering a second
“Marriage Act” marriage as bigamous.
However check The People v Katongo10 in which Cave J, held that a customary
union is not capable of being an “earlier subsisting marriage” which renders a
subsequent “Marriage Act” Marriage Bigamous.
By the operation of section 32 (2) a Marriage is null and void if it is solemnized
not in the Registrar’s office nor in a lincesed place of worship, under a false name
or names, without the Registrar’s notice or special license having been duly
issued or by a person not being a licensed minister of some religions,
denomination or body or a registrar.
Section 33 (1) also provides that “A Marriage between persons either of whom is
under the age of sixteen years shall be void”.
In summary form the grounds on which a marriage is void are outlined in section
11 of the Matrimonial causes Act 1973 which provides that;
“A marriage shall be void on the following grounds only, that is to say”:
(a)
That it is not valid marriage under the provisions of the Marriage Act 1949 to
1970 that is to say where:
(i)
(ii)
(iii)
The parties are within the prohibited degrees of relationships
Either party is under the age of sixteen
The parties have either intermarried in disregard of certain requirements as to the
formation of Marriage.
(b)
(c)
(d)
That at the time of Marriage, either party was already lawfully married.
That the parties are not respectively male and female
In the case of polygamous marriage entered into outside England and Wales, that
either party was at the time of marriage dominated in England and Wales.
For further reading, see case of The People v. Chitambala11 and see Lillian Mushota’s
Family Law text book.
10
11
(1974) ZR 290
(1962) ZR 142 (HC)
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(ii)
VOIDABALE MARRAIGES
A voidable marriage is one which maybe valid until it is declared voidable by one
of the parties to the marriage or an interested person taking action to have it
annulled12.
Section 12 of the matrimonial causes Act 1973 provides that any child who would
have been legitimate child of the parties to the marriage if at the date of the decree
of nullity it has been dissolved instead of being annulled shall be deemed to be
their legitimate child.
Nullification of a voidable marriage requires one of the parties to the marriage on
an interested party to take court action to declare it invalid. Section 12 provides
that;
“A marriage ….shall be voidable on the following grounds only, that is to say”
(a)
(b)
(c)
(d)
(e)
(f)
That the marriage has not been consummated owing to the incapacity of either
party to consummate it.
That the Marriage has not been consummated owing to the willful refusal of
the Respondent to consummate it.
That either party to the Marriage did not validly consent to it, whether in
consequence of duress, mistake, unsoundness of mind or otherwise.
That at the time of marriage, either party though capable of giving valid
consent was suffering (whether continuously or intermittently) frommental
disorder within the meaning of the mental health Act 1983 of such a kind or to
such an extent as to be unfitted for marriage.
That at the time of the marriage, the respondent was suffering from a venereal
disease in a communicable form.
That at the time of marriage the respondent was pregnant by some person
other than the petitioners.
It is important to note that here, a marriage is valid until a party thereto or an interested
party takes steps to have it annulled.
1.
Non – Consummation – consummation is the first post-marital act of intercourse
between the spouses; intercourse must be ordinary and complete, not patial and
imperfect. This was held to be so by Lord Lushington in . A-g13.
In Baxter v. Baxter14 this definition was refined. The facts were that the husband was not
allowed by his wife to have sexual intercourse with her unless he had a contraceptive
sheath because she did not want children.
12
Lillian Mushota Family Law in Zambia : case and material, Lusaka UNZA @ page 146).
(1845) Rob Ecc 279
14
(1948) Ac 274
13
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Eventually, he sought a decree of nullity on the ground that his wife had willfully refused
to consummate his marriage. Lord Chancellor Viscount Jowitt raised the following
points:
(i)
(ii)
That the procreation of children is not a principal end of marriage. Sterility
will not prevent consummation.
Parliament was not concerned with matter of such intimate nature when it
used the term consummate in section 12 of the matrimonial causes Act and
that the word consummate had to be understood in its common usage and in
light of the social conditions known to exist.
Non – consummation refers to the inability of the spouses to perform that act of intercourse. Failure maybe due to physical or psychological factors.
In D V. D15, the petitioner, a party to an arranged marriage, proved to the satisfaction of
the court that at the time of marriage and ever since, she was unable to consummate her
marriage due to invincible repugnance to the act with her husband.
2.
Willful refusal to consummate - this has been part of the grounds to nullity a
marriage since 1973 and qualifications under the present ground of divorce as
unreasonable behaviour.
In Horton v. Horton 16, the House of Lords through Viscount Jowitt, said
“The words – willful refusal – connote a settled and definite decision
come to without just excuse, and in determining whether there has
been such refusal, the Judge should have regard to the whole history
of the Marriage”.
Read the Zambian case of Wendy Patricia Partrige v. Joseph Titus Patrige17. In this
case, the High Court refused to declare nullity a marriage that was entered into merely to
get Zimbabwean residence by the petitioner i.e. marriage of convenience which was
never consummated. The court stated that:
“….it will be against public policy and morality to permit a petitioner
to plead her own failure to consummate the marriage as a basis for a
decree of nullity when she was well aware that the marriage by their
arrangement was not (going to be) consummated. The capacity to
consummate the marriage was not put to test.
For non – consummation to stand as a ground, reasons for the failure to consummate
should not be known to the petitioner at the time of the marriage.
15
(1982) 12 Family Law reports 101
(1947) 2 ALL ER 871
17
(1985) ZR 223 (HZ)
16
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DIVORCE
A marriage is terminated by divorce order upon proof that there was marriage between
the parties. In a civil marriage, this is done by petitioning the High Court and the petition
must be accompanied with a marriage certificate to act as proof that the court is dealing
with a valid civil marriage. In a customary marriage, the parents should prove that the
marriage was valid by say proof of consent and the payments that were made to validate
the marriage.
In the current civil law, there is only one ground on the basis of which divorce maybe
granted; that is the marriage has broken down irretrievably. In order to establish
irretrievable breakdown of marriage, one or more of the following five facts must be
proved as provided by section 1 of the matrimonial causes Act 1973.
(i)
That the respondent has committed adultery and the petitioner finds it intolerable
to live with the respondent.
Note that committing adultery alone is not a complete fact to hold a marriage to
have breakdown irretrievably; for a man can commit adultery and the wife may be
willing to forgive him and live with him. For irretrievable breakdown to be
established therefore, the petitioner should as a result of the adultery committed
find it INTOLERABLE to live with the Respondent.
(ii)
(iii)
That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent.
This fact is otherwise referred to as unreasonable behaviour.
That the respondent has deserted the petitioner for a continuous period of at least
two years immediately preceding the presentation of the petition.
(iv)
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, (otherwise
simply referred to as “two years separation”) and the respondent consents to a
decree being granted.
(v)
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. (Therein
referred to as five years separation)
It should be stated that the court has a duty to inquire so far as it reasonably can
into the facts alleged by the petitioner and should not be quick to grant divorce.
If upon making such inquiry the court is satisfied on the evidence placed before it
that the facts alleged has been proved it shall be subject to the provisions of
section 3(3)and 5 grant a decree of divorce.
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A decree of divorce shall however be in the first instance to be a decree nisi and a
decree absolute can only be granted six months later.
The intervening period is necessary because as the court always respects the
sanctity of marriage, they entertain a possibility of reconciliation and therefore in
the event that the parties are able to reconcile before a decree absolute is granted,
then, it shall not be granted.
Secondly, this period is necessary so that the parties can be given enough time to address
such issues as property settlement, maintenance of parties and proper arrangement
relating to the welfare of children of the divorcing couple. If no arrangement has been
made with regard to the children, then a decree absolute will not be granted.
(i)
Adultery
The petitioner must prove that there was or there must have been sexual
intercourse between the respondent and another person, who must be cited, and
the petitioner must show that because of adultery she or he finds it intolerable to
live with the respondent.
Both requirements must be proved, and not independently of each other. The
petitioner must find it intolerable to live with the respondent as a direct
consequence of the adultery, and not for some different reason. It must be the
respondent’s adultery that must make life intolerable for the petitioner, as can be
deduced by the provision that co-habitation for a period of not more than six
months, after discovery of the adultery is not to be taken into account in
determining whether the petitioner finds it intolerable to live with the respondent.
In the case of Caroline Sikazwe v. Ian E. Sikazwe (respondent) and Jennier
Nkonde (co-respondent)18, Caroline Sikazwe petitioned for divorce on the ground
that the Marriage had irretrievably broken down on account of the respondents
adultery with Jennifer Nkonde the co-respondent and she found it intolerable to
live with him. The petition was not contested and the marriage was dissolved.
A woman who has been raped has not committed adultery. The relationship
complained of must be voluntary.
(ii)
18
19
Behaviour
The second factor is that the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the respondent. Here,
conduct that amounts to cruelty is contemplated. In Young v. Young19 Simon J
said that conduct “must amount to such a grave and weighty matter as renders the
continuance of the matrimonial cohabitation virtually impossible”. It is submitted
however that cruelty should not be so grave as to pose danger to health or a
(1983) HP/D78
(1962) ZR 89
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reasonable apprehension of it. The subsection merely contemplates behaviour
which no reasonable person can tolerate: It says nothing about danger to health
The foregoing presents a contrast to the decisions of the court in the case of
Coetzee v. Coetzee20 Venter v. Venter and Joubert21 and Howard v. Howard22
where it was stated that cruelty should be so gave as to cause injury or danger to
health. The explanation for this is that the above cases where decided under the
matrimonial causes Act, 1965 before it was reformed by the Divorce reform Act
1969 which brought a fair balance between the desire to balance the interest of
society in the preservation of the institution of marriage and the social
considerations which make it contrary to public policy to insist on the
preservation of a union which has, for all intents and purposes broken down
irretrievably.
Behaviour refers to the conduct of the respondent. The section 1 (2) refers to
whether the petitioner can reasonably be expected to live with the respondent in
light of his / her behaviour.
Passingham in Law and Practice in Matrimonial Causes has stated that:
“The courts have refrained from any attempt at an exhaustive
definition of behaviour…each cases raises a question of fact
and degree may depend on the personalities of the parties…”23
The words used pose an objective test and the term petitioner refers to particular
petitioner and not to any other person.
The supreme court judgment in the case of Mahande v. Mahende24, Cullinan
A.J.S, stated as follows:
“I have to consider not only the behaviour of the respondent as
Alleged….but the character, personality disposition and
Behaviour of the petitioner. The general question maybe
Expanded thus: can this petitioner with his or her character and
Personality, with his or her faults and other attributes, good and
Bad and having regard to his or her behaviour during the marriage
Reasonably be expected to live with the respondent. ”
It can therefore be seen that the unreasonable behaviour complained of is petitioner
specific. What could amount to unreasonable behaviour in one case may not be held to be
20
(1965) ZR 89
(1966) ZR 60
22
(1967) ZR 47
23
Passingham; Law and Practice in Matrimonail Causes (3rd Ed) London: Butterworths (1979) pp 23-24
24
(1976) ZR 287 P. 293
21
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unreasonable in another. The emphasis should therefore be on the effect of that conduct
upon the petitioner. This is echoed in Bromley’s family law25 at page 228.
Under unreasonable behaviour, one should do well to read the following cases
(iii)
(a)
(b)
(c)
(d)
Coetzee v. Coetzee (1965) ZR 89 (HR)
Venter v. Venter and Joubart (1966) ZR (HR)
Mable May Bbuku Yoyo v. Arthur Yoyo scz No. 78 of 1998
Mundwe Godfrey Mulundika v. Rhoda Z. Mulunduka (1991) SJ (HZ)
Desertion
Where a respondent voluntarily and without reasonable cause abandons the
petitioner against his or her will and with intention of permanently ending the cohabitation, it is called desertion. Desertion for a continouos period of two years is
sufficient to prove irretrievable breakdown of marriage. There are four elements
that must exist namely:
The de facto separation of the spouse fro at least two years
The animus desertendi – ie the intention on the part of the spouse in desertion
to remain separated permanently.
The absence of consent on the the part of the deserted spouse; and
The absence of any cohabitation on the part of deserting spouse.
Desertion may also occur when the respondent behaves in such a manner as to compel
the petitioner to leave the matrimonial home against his or her wish under similar
conditions. This is called constructive desertion26 where the petitioner alleged
constructive desertion, the operative period is two years. Desertion relates to separation
and separation includes living under the same roof. The leading case here is Hope v.
Hope27 where the spouses were living in the same matrimonial home, but they slept in
separate bedrooms and the wife refused to do domestic work for the husband but ate
meals together. Lord Dening found insufficient reasons to uphold separation. There
should be sufficient reason to prove desertion with an intention to bring the marriage to
an end. If there is an agreement as to the parties, terms of separation, then this is not
desertion. It is separation with consent.
(iv)
Living apart for a continuous period five years. As section 1 (2) (e) clearly
states, once parties have lived apart for five years, then it is apparent the marriage
has broken down irretrievably. What has been difficult to satisfy however is
where the parties claim to have lived apart but under the same roof. This was so
until the decisions of Lord Dening in the case of Fuller v. Fuller28wherein
proponded the law. In that case,
25
P.M. Bromley; Family Law (9th edition) London: Butterworths (1998) p. 228
Lillian Mushota page 240
27
(1948) ALL ER 920
28
(1973) 2 ALL ER 650
26
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“The husband and wife were married in 1942 and lived in the matrimonial home in
Corydon until 1964 when the wife left the husband taking the two children of the
marriage with her, and went to live with P as his wife at the house in South Norwood.
The husband remained in the matrimonial home. In 1968, the husband became ill with
Coronary thrombosis. His doctor told his wife that he must not live on his own and that
he had only about a year to live, so on his discharge from the hospital in October 1986
the husband went to live at P’s house. He lived there as a lodger paying a weekly sum.
The wife and P slept together and the husband slept in a separate bedroom.
The wife got his meals, which he ate with the family and did his washing but they clearly
treated the marriage as at an end. The husband lived thus in P’s house for four years. In
April 1972, the wife petitioned for divorce under S. 2 (1) (e) of the divorce reform Act,
1969 on the basis that she and the husband had lived” “lived apart” for a continuous
period of five years preceding the petition. The husband consented to a divorce. The
judge dismissed the petition on the ground that the parties were not living apart during
the period when the husband was living at P’s house
On appeal; it was held that the husband and wife were “living apart” within S 2 (1) (e)
while the husband lived at P’s house because they were not “living with each other in the
same household” within the meaning of S (2) (5) b; the words “with each other” meant
living with each other in that sense since the wife was living with P as his wife and the
husband was living in the house as a lodger.
The court accordingly allowed the appeal and granted the decree nisi.
It can therefore be seen that five years separation as a factor for divorce will be sustained
even where it can be proved that the parties stayed under one roof.
It should be mentioned however that there are instances when the court may not grant a
decree nisi even where it has been established that the parties have lived apart for five
years.
Section 5 (1) provides that;
“The respondent to a petition for divorce in which the petitioner alleges
Five years separation may oppose the grant of a decree on the ground
That the dissolution of the marriage will result in grave financial or other
Hardship to him and that it would in all the circumstances be wrong to
Dissolve the marriage. ”
It is difficult to appreciate this exception given the fact that after divorce, parties are at
liberty to apply for maintenance and other ancillary reliefs from the respondent. It must
however be noted that this is the position of the law.
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(iv) Two years separation with consent
The respondent has to consent to the decree being granted under section 1 (2) (d) of the
matrimonial causes Act 1973 and has the right to withdraw the consent at any time before
the pronouncement of the decree. Consent must continue up to the end to the
pronouncement of the decree. The consent has to be freely given, and the giver must have
the same mental capacity as at the formation of marriage.
This provision is a functional recognition that marriage is a contract from which the
parties should be freed if the subtraction of the relationship, that is mutual love and
understanding, disappear. The section provides for a form of divorce by consent of the
parties. Spouses may therefore lawfully agree to a separation with a view to divorce.
Extraneous hardship
The court will take into account other hardship such as being considered outcast if
divorced – Indian case of Banink v. Banik29 also Parghi v. Parghi30 another indian case
where a divorce would greatly disadvantage children of a divorce.
Section 5 (2) (b) puts a duty on the account to consider all circumstances in deciding
whether the financial and other hardship should prevent dissolution of the marriage.
DIVORCE UNDER SUSTOMARY LAW
A customary marriage carries to an end after families of both parties have made several
attempts to counsel and reconcile them. The families are fully involved in the process of
marriage as well as divorce. If the parties wish, they may proceed to a traditional court or
to a local court for the dissolution. In both courts, parents of the parties, particularly of
the woman, are required to confirm that the parties, particularly of the woman, are
required to confirm that the parties were actually, and married by explaining matters of
consent and marriage payments. This is similar to the procedure in the High Court, as
there must be proof of marriage through production of the marriage certificate before the
petition can be accepted for filing.
Allegations by a man do not need to be proved in the local court, and the marriage is
usually dissolved as long as the man no longer wants his wife. Allegations by a woman
require proof, and the marriage will usually not be if the man contests it. The marriage
will also be dissolved if the woman commences the action for reconciliation, with no
intention of divorcing, as long as the man tells the court he no longer wants her.
29
30
(1973) ALL ER 45
(1973) 117 SJ 582
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The mode of commencing proceedings for dissolution of marriage in the local court is by
a prescribed form of reconciliation. The reason for this oappears to be that differences
could be resolved by families or by courts, since complaints by women did not generally
carry any weight, and an unhappy man could marry another woman to make up for the
inadequacies of a marriage entailed returning some of the marriage payments to the
family of the man and the woman’s family were always able or willing to do that.
Grounds of Divorce
The grounds for divorce under customary law are many and vary from one ethnic group
to another. Most of them are weak and frivolous while the more serious ones are in many
ways similar to the factors that are relied upon to dissolve a civil marriage. They include
the following:
(i)
Adultery
A traditional court does not generally entertain a divorce petition by a wife on the
adultery of her spouse. A husband is allowed to have extra marital relationship
because (in any case) the marriage is potentially polygamous ands the man has the
right to marry additional wives. Thus a wife would not call upon the local court to
grant her divorce on account of her husband’s adultery.
A research on gender bias in courts in 1993/4 showed that of the sampled women
in six provinces of Zambia who had petitioned for divorce in local courts, 100%
had their petitions thrown out for the reason that the men had not committed
actionate offences.31
A husband may however divorce an adulterous wife. A wife may also divorce the
husband for persistent adultery which brings shame on her or otherwise prejudices
her interests. Of late, women have been suing their husband lovers for marriage
interference.
(ii)
Behaviour
Conduct that amounts to unbecoming behaviour induces violence against the wife
or children of the family or both, refusal or neglect to provide adequate food,
shelter, clothes use of abusive language in the presence of the children, in-laws or
outsiders, denial of conjugal rights, nagging, quarrelsome, greed, dislike of the
other spouse’s relatives.
Customary law allows men to chastise wives for wrong doing, and they may not
petition except in cases of severe beatings occasioning actual bodily harm e.g.
loss of pregnancy.
(iii)
31
Desertion
Sampa “ Gender Bias in Zambia Court System ” (1994)
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Desertion is a new phenomenon relatively that came about by virtue of colonial
policy which took men away from their villages to urban areas where they
provide cheap labour.
Desertion means abandoning one’s family and willfully neglecting to provide for
them. A woman may petition and she will get support from her family.
(v)
Separation
This takes the form of a woman being sent back to her family for a “refresher”
course in marriage while she is with her family. Marriage counselors (Bana
Chimbusa in Bemba) teach her afresh about marriage life after which if the
complaint was genuine the man arranges to have his wife back. If it was just an
excuse, the formalities for divorce are done, which includes packing her
belonging and delivering them to her uncle’s (or other relatives) house.
(vi)
Childless ness
In customary law, procreation is a fundamental aspect of marriage. In the past, a
“typical ” Zambian family took pride in a large number of children, ten or more.
In other ethnic groups, men became polygamous in order to have a large
investment in the children, an important source of labour.
If the party unable to procreate discovers that it is the other spouse who is
impotent or unable to produce children, he/she can petition for divorce. A woman
could therefore petition. In the case of a man, he is secretly given by his in-laws a
young sister or niece or other near relative to produce children. There is often an
assumption that it is the woman who is infertile.
(vii)
Laziness
Marriage imposes duties and obligations on the parties. A spouse who neglects,
fails or refuses to adequately perform those duties can be divorced. The duties
referred to herein relate to providing food for the family e.g. going out to hunt or
fish, thatching a leaking roof, providing adequate shelter and security to the
persons and property tiling land and growing food crops, cooking properly and
doing other household chores truly and efficiently. A wife who falls ill and fails to
perform household chores maybe divorced. In any case, most ethnic groups take
sick wives to their parents to be nursed, and may be divorced if the illness is
prolonged. In particular, a person maybe divorced for illness such as insanity,
epilepsy and leprosy.
The list of the grounds for divorce cannot be said to be exhaustive.
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CONSEQUENCES OF DIVORCE
ISSUES OF FINANCE AND PROPERTY ON DIVORCE
After a marriage has been dissolved either by divorce or a declaration of nullity the
parties proceed with applications for the sharing of property, custody of children, the
determination of financial obligations to the needy party and to the children of the family.
This head of the law is mainly dependent on the matrimonial causes Act 1973 and a
number of case authorities both local and English.
Financial relief for the parties to the marriage and children of the family.
The law on this topic is found in the matrimonial causes Act from section 21 – 25 . By
section 25 (1) of the Act, the court has a duty to have regard to all circumstances of the
case, first consideration being given to the welfare of the children, that is any child under
the age of eighteen. Other matters the court considers include:
(i)
The needs factor
The court balances the needs of the parties and the availability of resources. Lord
Justice Thorpe in Dart v. Dart32 said in the needs factor, their must be an
objective appraisal of what the applicant subjectively requires to ensure that it is
not unreasonable.
But the objective appraisal must have regard to such things as:
(a)
(b)
(c)
(d)
What is available
The standard of living to which the parties are accustomed
Their age and state of health and
Perhaps less obviously, the duration of the marriage, the contributions and
pension rights of both as affected by the marriage and accrued on likely to
accrue.
The need factor must therefore be balanced with any factors such as the availability of
resources both present an future. The court will take into account income, earning
capacity, property and other financial resources as well as inheritance, if any, of the
parties.
(ii)
(iii)
32
Financial obligations and responsibilities factor
It may be that a party has dependents by a prior marriage or relationship. These
must be disclosed and the court will take them into account.
The age factor
(1966) 2 ER 286
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The age of each party is relevant because it has a bearing on the earning capacity
of each party and/or the proximity to retirement. For instance;
A middle-aged wife without an income and with children to look after will
be protected by the court in so far as the resources of the husband allow.
A young spouse is likely to have a relationship with someone else or to remarry. The court must take this factor into account when considering
financial relief.
If a party is about to retire, the level of maintenance maybe fixed with
reference to existing income, with a defined decrease when he receives his
pension.
Case law suggest that a very old applicant who has been married for a
substantial period will have less needs than a younger applicant and
therefore paradoxically an older applicant will receive less financial relief
than a younger one. In the Zambian context, because of the absence of a
guaranteed social security system, an older person may require more
financial support than a younger person who has chances of finding
another job or spouse.
(iv)
Duration of the Marriage factor
It is logical and therefore the position of the law that short term marriages will
receive short term relief. The presence of children might however entitle the
recipient to a much higher amount.
Other factors may include the physical and mental disability of a spouse, conduct
of the spouse e.g. reckless gambling, attempting to harm the spouse, lying an oath
before court, financial mismanagement if it is a significant factor.
CLEAN BREAK
The matrimonial causes Act 1973 makes a provision for a clean break where parties do
not remain under long term obligations to one another after divorce. This is thought
necessary to give finality to a matter, especially in a childless marriage of a short duration
and where the husband and wife have an income or earning capacity.
The Matrimonial Home
Usually, the Matrimonial home is the parties’ only capital asset. In most cases, it is the
only home possessed by the spouses and the base for their children. The courts option is
usually to sell it and divide the proceeds, not necessarily equally.
If one of the spouses is able he/she can “buy out” the other or the court will transfer that
share to the other.
However, where there are other properties or resources, the court may order outright sale
or transfer into the other party’s name. The party losing out may then be given a lump
sum payment or reasonable maintenance payments.
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The matrimonial home is also usually the safest place for a spouse to seek solace and
protection and the court no longer observes strict property rights and may therefore
exclude a violent part from the home.
The consequences of divorce with regard to finance and property have been laid down in
the famous English authority of Watchtel v, Watchtel33.
In this case, Lord Dening had the following to say, when parliament in 1857 introduced
divorce by the courts of law, it based it’s on the doctrine of the matrimonial offense. This
affected all that followed. If a person was the guilty part in a divorce suit, it went hard
with him or with her. It affected so many things.
The custody of the children depended on it. So did the award of maintenance to say
nothing of the standing in society. So serious were the consequences that divorce suits
were contested at great length and much cost……”
In other words, blameworthiness or guilt of a party was the basis of divorce and what that
person would be entitled to in terms of property and maintenance.
“All that is altered. Parliament has decreed if the marriage has broken down irretrievably
let there be a divorce it carries no stigma but only sympathy. It is a misfortune which
befalls both”. No longer are there long contested divorce suits. Nearly every case goes
uncontested. The parties came to an agreement, if they can, on things, that matter so
much to them. The devide up the furniture, they arrange the custody of the children, the
financial provision for the wife and the future of the matrimonial name. If they can not
agree, the matters are referred to a judge in chambers.
This therefore means that blame worthiness is no longer a relevant consideration when
granting divorce and making arrangements of property settlement and maintenance.
It is therefore important to note that even in Zambia today, the principle laid down in
watchtel is the law and blame is presumed to be apportioned to both parties for it is not
always the fault of one party only that a marriage way breakdown.
What has been stated above is the position with regard to property settlement and
maintenance at common law, however, where the marriage was contracted under
customary law, property settlement and issues of maintenance are determined in
accordance with the practices of particular ethnic group.
The case of Matha Mwiya V. Alex Mwiya is authority. In that case, both husband and
wife were lozi by tribe. The wife had sued the husband in 1969 in the Mulobezi local
court because he divorced her according to her, without giving her anything. She further
told the count that she wanted to go back to her husband. The Mulobezi local court
33
(1973) FAM 72
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granted divorce, ordered that K10,000 be given to the plaintiff, K2.00 to be fee and 20n
to be refunded.
Dissatisfied with the judgment of the local court, she appealed to the subordinate court
who upheld the decision of the local court.
Dissatisfied still, she appealed to the high court.
Sakala J started that;
I have given the history of this appeal my most serious consideration.
I must admit that my task has been made much easier with the assistance of the two
assessors. The questions which this court has to resolve as follows;
1.
2.
3.
Does Lozi custom compel the sharing of property acquired during existence of
marriage upon divorce?
Does Lozi custom compel a husband to support his divorce wife.
Does Lozi custom compel the husband to take on the wife he has divorced?
As regards question one; the assessors are unanimous in the opinion that there is no
Lozi custom which compels a husband to share property. The assessors are agreed that
if the husband so wished, he may share the property but he is not bound by custom. I
find no reason to differ with this leaned Lozi custom.
Turning to the question of whether there is a Lozi custom which would compel a man
to support for life a woman he had divorced, the assessors are unamious on this
question that there is no such lozi custom. Again, I find no reason to differ with their
opinion.
The assessors were also unaminious with regard to the third question that there is no
Lozi custom compelling a man to take on a wife he has divorced.
The appeal was accordingly dismissed.
Another important case on the point is that of Rosemary Chibwe V. Auston Chibwe
which involved Ushi customary law. The court in a matter that started in the local court
way up to the Supreme court stated inter alia that.
“…We are therefore surprised that both the local and magistrate courts which sat with
the assessors who are the experts of the Ushi customary law, made no reference to Ushi
Customary law in dissolving the marriage aand in property adjustments This was
improper and Misdirection.
The court with regard to how property adjustment is to be considered even in this case
of a customary marriage stated that;
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“…We have asked ourselves whether or not the learned High Court Commissioner
misdirected himself when he ordered a lumpsum as both maintenance and properly
adjustment. Maintenance orders are meant to be periodical, payments to maintain
either children or the other party whereas property adjustment means allocation of one
or so properities among the family assets to provide or a divorced person. Section 24
of matrimonial causes Act deals with property adjustment. Under this section, a party
to divorce proceedings provided he /she has attributed either directly or in kind (that is
by looking after the house) has a night to financial provision. The percentage is left to
the courts discretion….”
The reader is further urged to read the case of Violet Kambole Tembo V. David Lasture
Tembo Appeal No. 42/2002. Furthermore, for purposes of understanding the topic
under discussed further, case of Orbert Nere Cpventry V. Susan Catima Coventry (Nee
Hunt) (2002)/HP/D.056) 13 instructive and should according be part of the readers
priority list of case needing attention. It should however be understood that the position
that was laid down in the Chibwe case presents the position of the law; that is to say ,
even in the administration of customary law, the court may have regard to the
provisions of the matrimonial causes Act and customs which are found to be unfair
maybe disregarded.
DOMESTIC VIOLENCE
Lillian Mushota has observed that Domestic violence normally takes place between
husband and wife, though it sometimes extend to children of the family. Domestic
violence was summarized by the Law commission of the U.K in law Commission No.
207 London HMSO as follows:-
“all studies that exist indicate that wife abuse is a common and pervasive problem and
that men from practically all countries, cultures, classes and income groups indulge in
the behaviour. The issue has serious implications from both a short-term and long term
perspective and from an individual and societal perspective. Many victims suffer
serious physical and psychological injury, sometimes even death, while the economic
and social costs to the community are enormous and the implications for future
generations impossible to estimate.
It can therefore be seen that domestic violence is a very serious problem impacting on
families negatively regardless of status and economic positions.
On violence against women in the family, the UN Centre for social development and
Humanitarian Affairs, 1989, also published a .
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Report containing the following:
On the nature, the report stated that, “Domestic Violence can take may forms, and the
term violence is used in two senses: in its narrower sense, its describes the use of threat
of physical force against a victim in the form of an assault or battery” in the wider
sense, it extends to abuse beyond the mere typical instance of physical assaults to
include any form of physical, sexual or psychological molestation or harassment which
has a serious detrimental effect upon the health and well being of the victim….
The report made recommendations for reform of the various discretimary remedies
which exist in family law for dealing with protection against violence and regulating
occupation of the family home, most of which were incorporated in the family law Act
1996.
Domestic violence usually leads to criminal charges. In European jurisdiction, even
“rape” of a wife is punishable. This is not the position in Zambia.
However, civil remedies have been preferred to criminal remedies as being more
effective in combating domestic violence. Moreover, society and the Police regard the
matter as domestic and therefore private to be confined to the home.
As a way of regulating the behavior of the parties, the violent panty maybe removed
from the Home. This is known as an ouster order.
OUSTER ORDERS
Although an ouster order may be granted without there having been any violence, the
counts have consistently held that an ouster Order is a “draconian” order because of the
severenity of removing a person from his or her home, particularly where he or she has
a proprietary interest: Before a party is ousted therefore, the court will look at:
(i)
(ii)
(iii)
the respective needs and financial resources
the needs of any children
all other circumstances of the case
As said in one Mary Hayes, it is a dangerous social policy which regulates the right to
occupy the matrimonial home only where there is proof of violence.
Domestic violence is common in Zambia just like any other country. It is a dangerous
vice that can even lead to death of one of the parties. The writer herein is of the
considered view that where relationships between husband and wife are estranged, it is
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better for them to go their separate ways than to stay in a marriage where one violent
party may harm the other. This would even be supported by public policy considerations.
JUDICIAL SEPARATION
A party who applied to court for judicial separation may cite any of the fire divorcé
factors relevant to his or her case. The only difference is that in judicial separation, one
needs not say the marriage has broken down irretrievably because the essence of judicial
separation is not to have the marriage dissolved but merely to enable the parties to live
separately. It takes effect immediately and once granted, the petitioner is not obliged to
co-habit with the respondent.
After the grant of the decree of judicial separation, the court may also make order as to
maintenance and financial relief on separation. This does not include property
adjustment because the marriage is still subsisting i.e. the status of the parties has not
changed; they are still husband and wife.
MAINTENANCE
Both customary law and statutory law favour maintenance of a spouse during the
subsistence of marriage.
Customary law however does not generally support
maintenance of a divorced wife; the kinship system determines the party who will
maintain the children, usually being the party with custody. Under statutory law, a court
of competent jurisdication has power to order a husband in the case where they are on a
judicial separation, to pay money to the wife or any person named in the order for either
the wife’s maintenance or for the children’s maintenance alone. In the case of a divorce
the ex-husband may be ordered to pay the ex-wife a lumpsum, or a weekly or monthly
sum of money for her upkeep, the children’s upkeep or for both her and the children’s
upkeep.
Until 21st April 1995, the maintenance of children was governed by old British statutes
such as the maintenance orders ‘Act, Cap 55 and Maintenance Order (Enforcement) Act
Cap 56.
Section 2 thereof defined a maintenance order. In 1995, both cap 55 and 56 were repealed
and replace by the Affiliation and Maintenance of children Act, Cap 64, wherein Section
2 aforesaid was repeated.
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Hence, a spouse may make an application to court for maintenance and the court will
consider his means, usually upon production of a salary statement or bank statement and
proof of income from other sources such as shares and other business as well as the
woman’ means, if any.
Section 27 of the matrimonial Causes Act 1973 deals with financial provision orders in
case of neglect by a party to a marriage to maintain a spouse and/or child or children of
the family.
It provides as follows:
(1) either party to a marriage may apply to the court for an order under this section
on the ground that the other party to the marriage (the respondent)
(a) being the husband, has willfully neglected (i)
(ii)
to provide reasonable maintenance for the applicant, or
to provide, or to make a proper contribution towards, reasonable
maintenance for any child of the family to whom this section applies
(b) Being the wife has willfully neglected to towards, reasonable
maintenance.
(i)
(ii)
for the applicant in a case where, by reason of the impairment of the
applicants earning capacity through age, illness or disability of mind or body,
and having regard to any resource of the applicant and the respondent
respectively which are, or should properly be made, available in all the
circumstances to expect the respondent so to provide or contribute or,
for any child of the family to whom this section applies.
This section and the proceeding sections therefore gives the parties to a marriage to apply
to the court for maintenance.
For an application for maintenance to succeed, the Act requires that, a matrimonial
offence must be proved, such as the respondent’s willful neglect to provide reasonable
maintenance for the applicant and child or children whom he or she is legally Liable to
Maintain, cruelty to the spouse, persistant cruelty to children, being found with a venereal
disease etc.
(a) Maintenance of children while parents’ marriage subsists.
The subordinate court of the first class has the power to make maintenance order by
virtue of section 20 (1) (e) of the subordinate court Act. This section states that a
subordinate court of the first class has the jurisdiction to make any order which maybe
made by a court of summary jurisdiction under the summary jurisdiction (separation and
maintenance) Act 1895 to 1925 and section 11 of the matrimonial causes Act, 1937 of the
United Kingdom.
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A subordinate court of the first class can also make an order for maintenance under
section 1(1) of the married women maintenance Act 1925 on the ground of cruelty willful
neglect to provide a reasonable maintenance for the children, being guilty of persistent
cruelty to children, being found with disease or compelling the wife to submit herself to
prostitution, a repugnant practice which should be criminalized in addition to being a fact
to prove the ground for divorce.
The High court also has jurisdiction to make an order for such periodical payments as it
thinks just for the maintenance of the children of the marriage on application by the wife
if the husband is guilty of willful neglect to provide reasonable maintenance for them.
This power is conferred on the High court by section (27 (1) of the Matrimonial Causes
Act 1973 aforesaid.
b. Maintenance of children when parents are on separation.
Section 26(1) of the matrimonial causes Act 1950 empowered the high court in
proceedings for separation inter alia, either before or by, or after the final decree to make
such provisions as appeared just with respect to the custody, maintenance and education
of the children of the marriage whose parents were the subject of the proceedings.
However, although this provision has been repealed, the courts have this obligation under
Cap 28, 64 and the matrimonial causes Act 1975. They have powers to make
maintenance orders for any amount which appears just in the circumstances.
C. Maintenance of Children When Parents are Divorced
The High Court can make provision which appears just in divorce proceedings either
before or after the final decree for the custody, maintenance and education of the children
of the couple divorced or to be divosed. This power emantes from section 26(1) of the
matrimomial causes Act. There is no fixed amount of money to which the court should
limit itself. It has the power to make an order any amount as it thinks just.
c. Maintenance of Children born Outside Marriage
The Affiliation and Maintenance of children Act Cap 64 of the laws of Zambia, defines
Affiliation order as;
“ an order declaring a man to be the father of a child identified in the order”
A court may make an order that the putative father pays the child (through its mother or
legal guardian) a weekly or monthly sum of money. The law on affiliation and
maintenance of children is contained in the Affilation and maintenance of children Act,
Cap 64 which was enacted in 1995 by parliament of Zambia.
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AFFILITATION ORDERS
Thus a single woman can apply for an affiliation order pursuant to section 3 of the
Affilitation and Maintenance of children Act. An affilitration order as alluded to earlier
seek to establish that a particular man is the father of the child mentioned in the order and
should therefore be obliged to maintain and provide for such child.
The case of Walusiku Lisulo V. Patricia Anne Lisulo is helpful in discussing
Maintenance orders and that case has shown that where a maintenance order has been
granted by the court, .if circumstances change, a proper application must be made before
the proper forum to alter the order and it can not be by way of review.
CUSTODY OF CHILDREN
The court which hears an application for maintenance has jurisdiction also to make orders
with respect to the customdy of the children of the family. Parties usually disagree on
issues of custody. The duty of the court is to disregard this and concern itself with the
child’s welfare “whether the father’s claim is superior to the mother’s claim or vice
versa”. Their conduct is relevant, but its significance is variable. Guilty or innocence is
rarely a determinant as to custody of children, unless the conduct is of such gravity, as in
Re L (infants).
In that case, an adulterous mother deserted the matrimomial home to live near her lover,
leaving behind her husband and two children aged four and six. She refused to come
back in spite of the husband being ready to figure her. The court ruled that the father
should have care and control of the children.
Counts also considers whether the child will be corrupted, the age, sex and health of the
child. Counts do not ignore the reality that where children are very young, the mother is
better placed to bring them up.
Another consideration that the court will take into account is the effect of separating
young children if both are young, and refuse to give custody of the girl to the mother and
that of the boy to the father. There is no law that governs these matters, the only
consideration being the welfare of the children, whether or not they would be happier
with one parent or the other. In Re L (infants), one of the reasons for the decision to give
care and control to the father was the hope, though; faint, that the mother might return to
the father for the sake of the children.
The courts in Zambia usually give care and control of the infant to one parent while the
other is given reasonable access and a say in the upbringing of the child. There is also a
practice by courts to order a social welfare report on the suitability of the residence of the
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parties, and the ability to provide for the children, as basis for giving custody to one
parent or the other. This practice may overshadow the “best interest of the child factor”
as the mother may be the innocent party, who leaves the matrimonial home, without any
adequate means to provide for herself and the children. The best “interest of the child”
factor must compel courts to order the parent with the means usually the husband to
provide the other (the wife) and children with adequate accommodation, as well as
maintain them.
The law that governs custody of children B the Affiltration and maintenance of children
Act Cap 64. This law B embodied in the Act because custody order B franted pnly for
the duration of the maintenance order.
The foregoing is found in fant IV of the Affiltration and Maintenance of children Act.
The reader B urged to read the cases of; many Lousis Kakoma V.
Benson Chitondu Kakoma (1979) ZR 17 (HC) and the case of Elizabeth Nadine Smith
Wesson V. Brran Sydney St wd SCJ No. 35 of 1998.
ADOPTION
It should be stated from inseption that the effect of adoption B that once an individual
adopts and adoption B that once an individual adopts an infant, the biological parents can
lay no claim to the parents good of that child and hence their nights and obligation as
parents would have been extinguished.
The Adoption Act chapter 54 of the laws of Zambia provide that anybody of mature age
and who B not suffering from mental illness may adopt. Ti further provides that any
body who is 25 years and above or who is at least 21 years older than the infant can apply
to adopt.
It has been observed that, in most cases applicants for adoption are couples who may not
be able to have children or indeed couples who are general or charitable.
Couples or spouses adopt children jointly. Once the child B adopted, it becomes theirs
and all legal conditions applicable to children became applicable to this one as well.
There are instances where a single biological Mother of the Child may have lost her
documents evidencing the fact of being a Mother to that child. The best thing to do B for
that Mother to adopt her own child, furthermore, even in instances where a women
maybe claiming that a given child belongs to a certain man, that biological further may
also adopt the child to ensure that there 13 certainly as to who really is the legal father to
that child. Thee are also instances where one spouse may go into a marriage with a child
gotten from elsewhere e.g. A woman. The position of the law is that, that child will
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remain the child of its biological parents unless the other spouse adopts it. If such
adoption B done, then the child will now be that of the couple, and the biological further
(who is not a fanty to that marriage) will lose all his nights and obligations to that child.
RESTRICTIONS ON MAKING ADOPTION ORDERS
Section 4 of the Adoption Act Cap 54 of Laws of Zambia outlines some of the
restrictions that are found under adoption. It provides that;
4(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.
Subsection 2 further provides that an adoption order shall not be made in respect of an
infant who is female in favour of a sole applicant who is male, unless the court is satisfied
that there are special circumstances which justify as an exceptional measure the making
of an adoption order.
Furthermore an infanct can not be adopted by more than one person, that is to say, two
males or two females can not adopt one infant. In the case of joint applicants, the
applicants must be male and female and in any case they must be a couple.
Subsection of 4 of section 4 aforesaid provides that no adoption order will be made
except with the consent of every person or body of person who is a parent or guardian of
the infant or who is liable by virtue of any order on agreement to contribute to the
maintenance of such in fact.
Where the applicants are a couple, no adoption order will be made unless and until both
spouses consent to the adoption order being granted. Where one spouse is not willing to
adopt, or does not consent, then the order will not be granted.
Subsection 5 requires the infant and the applicant both to be resident in Zambia and the
Infant should have been in the care and possession of the applicant for at least three
consecutive months immediately preceding the date of the order, and 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.
It must be stated that with regard to consent to adoption, the court may by invoking the
provisions of section 5 disperse with any consent required by paragraph (a) of subsection
four if it is satisfied that”,
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(a) In the case of the parent or guardian of the infant, that he has abandoned,
neglected or persistently ill treated the infant.
(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 can not be found or is
incapable of giving his consent or that his consent B unreasonably withheld.
FUNCTIONS OF THE COURT IN ADOPTION CASES.
It is important to note that the court plays a very important role in adoption and no
adoption can validly be made away from the court. The courts functions are listed
below:(i)
(ii)
(iii)
To ensure that the person making the consent to adoption understands what he
or she was consenting to. If there is any doubt as to the giving of the consent,
then the court will not grant the adoption or.
The court should be satisfied that the adoption is in the best interest of the
child. It is for this reason that the court appoints a guardian ad litem to speak
on behalf of the child.
To ensure that once an adoption order has been granted, It is registered with
the registrar of births, deaths and marriages
EFFECTS OF AN ADOPTIONS ORDERS.
(i)
(ii)
The Most significant effect of an adoption order to which the parents should
seriously address their minds is that the rights or obligations of the biological
parents to the child are extinguished. Any consent as regard that child will be
given by the new parents. E.g. where the adopted child may want to marry
say below the age of 21, then the consent required to marriage should come
from the adoptive parents.
If prior to the adoption the child was being maintained under an Affiliation
and maintenance order, that order is extinguished at adoption.
It is important to mention that an adoption order should be done purely for the benefit
of the child, therefore, where any person be it the biological parents or the adopter
receives any cash gratification or another form of payment or reward in relation to the
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intended adoption, that person would have contravened section 30 (1) of the Adoption
Act and shall therefore be guilty of an offence.
If is for this reason that the court will always appoint a guardian ad litem section
10(2) gives the court the power to appoint a guardian ad litem whose function will be
upon the hearing of the application to safeguard the interests of the infants before the
Court. This is done by ensuring that the intended adoption meets all the requirements
and paramountly that it is in the best interest of the child to be adopted
Read the case of Micheal Andrew Mc Garry V. Erra Victor Mac Garry (adoptees)
(1999)
CHILD RIGHTS
Parents –Child Relationships
A child is a person under the age of eighteen. However, different statutes describe a
child as a minor, a person under age or an infant as the case may be in respect of the
aspect legislated upon. For instance with a person below sixteen as a child who
requires parental consent to marry. He or she is old enough to obtain a National
Registration Card, too young to enter a pub or a similar place where alcohol is sold.
He is old enough to vote or to obtain a driving licencse. A child below eighteen has
no capacity to enter into a valid marriage except for necessaries or apprenticeship.
The law prescribes ages for different crimes
The object of the law is to protect children because of their vulnerability due to lack
of maturity or experience in life. They deserve protection till they reach their full
potential. The protection is against unscrupulous actions manipulations, abuse, or
overbearance, by adults upon whom they depend.
The law also seeks to protect children from failings whose consequences may
adversely affect their future life.
Most children live with their parents, or with the mother, for a big part of their lives,
and parents are able to control their actions and direct how the children grow up.
Society expects parents to uphold the interests of the child to give direction, and to
take any correctional measure without being too excessive.
Parents are expected by society to provide their children with necessaries of life.
There are labour laws to protect the employment of children, or the conditions under
which they may be employed. The law thus sets the balance between the state and
the family and with terms the family’s and between parents and their children
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The law places parental responsibilities in terms of rights, duties and powers. These
rights are of guardianship, education, and general welfare of the child/children.
Courts did not interfere with parental authority until modern legislation and
international conventions developed a concern to protect children who are neglected,
ill treated, in need or incorrigibly delinquent. Today, in some developed countries
there are specific laws dealing with almost all rights of children. In Zambia laws on
children are not contained in a single legislation. They are contained in various
statutes some of which have been listed above and also in U.N. Conventions which
Zambia has ratified such as the United Nations conventions on the rights of the child,
ILO treaties and several others.
Enforcement of these international treaties require domestication in order to be
legally enforceable.
A quickly personal perusal in the UN convention on the rights of the child of
1989 reveals the following
THE UN CONVENTIONS ON THE RIGHTS OF THE CHILD (1989)
By ratifying it, government committed itself to ensuring the protection of children.
(i) Protection: That, children have the right to protection from cruelty.
(ii) Participation: that children have a right to play an active role in society and
To have a say in their own lives.
(iii)
Provision:
that children have a right to have their basic needs met
WARDSHIP OF A CHILD
The High Court has authority to order an infant/ child to be ward of the court to
protect the infant’s interests. Only minors can be warded , i.e. children below
eighteen years of age. Wardship involves giving care of a child with, or the education
of a child.
In summary the provision of the United Nations Convention on the rights of the child
of 1989 is like hereunder;
The preamble recalls the basic principles of the United Nations and the specific
provisions of certain relevant human right’s treaties and proclamations.
It reaffirms the fact that children, because of their vulnerability, need special care and
protection and it places special emphasis on the primary caring and protective
responsibility of the family.
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Article 1 defines a child. It states that a child is recognized as a person under the age
of 18, unless national laws recognize an earlier age of majority Several other issues
relating to the child are recongised in the proceeding articles such as Nondiscrimination, best interests of the child, implementation of rights, parental guidance
and the child’ evolving capacities, survival and development, name and nationality
etc.
A child’s rights are so critical that the state has obligations and the parent has
responsibilities towards it. It is all aimed at ensuring the best interest of the child
Guardianship
A guardian usually a person who has parental duties and responsibilities over a child,
other than the parent or parents especially where one or both of them are dead.
Guardianship is a legal term or concept under civil law that confers duties and
responsibilities over children during their minority. The appointment of a legal
guardian is by a court order. Customary law, however, regards a child as everyone’s
child under the concept of extended family and the rights, duties and responsibilities
over them depends on the parties’ kinship system. They belong to the father’s family
in the patrilineal system, to the Mother in the matrilineal system and to both in the
bilateral system.
When deciding matters of guardianships, the Court in Zambia are guided by the
guardian ad litem’s report, and the principle of the best interest of the child. A
guardian ad litem is an individual qualified or trained in social work. He/She usually
stands in for a child in a law suites since a minor has no capacity to bring an action in
his own capacity. This guardian ad litem has to be independent of any parties and
great importance is placed on this independence and can not be compromised by any
restriction directly or indirectly with respect to his/her duties.
The case of R.V. Cornwall County Council34 and R V. Birmingham Juvenile Cont
expt G35 on the guardian ad litem’s general duties to safeguard and promote the
interest of the said investing and advising count on the following
(a) The child ability to understand sufficiently any matters relating to
Procedures for adoption including submitting to medical examination
(b) Matters relevant to the proceedings including attending court;
( c ) any other matter which he/she considers relevant for the court to know
Deciding whether or not grant the order.
34
35
(1992) 2 ALLER 471
(1990) 2 QB 573 & (1989) 3 ALLER 336
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FOSTER PARENT
A foster parent is a person who stands in loco parents to a child whose parents are dead or
is unfit to exercise his/her responsibilities. The foster parents need not have legal
guardianships. The foster parent has defacto care of the child but he or she can
eventually apply for guradranship if he/she wises.
A foster parent can adopt the child under the law in order to acquire parental
responsibility which mere fostering does not give. There is a common law duty however
to afford protection and willful neglect may result in criminal liability.
LEGITIMACY
Legitimacy in this country is governed by the legitimacy Act Chapter 52 of the laws of
Zambia. Legitimacy is used here to refer to the status of a child at birth. If a child is
born in lawful wedlock, that is, to parents who are married to each other, he or she is
legitimate. Therefore, the child is illegitimate if he or she is born to parents not married
to each other. There is a presumption of law that a child born in marriage is legitimate,
that is, the husband is deemed to be the father of a child who is conceived by or born to
his wife during their marriage36. The presumption is rebuttable if the mother can show
proof that the husband is not the father. Proof of paternity is now possible through a
DNA test if the parties consent. Paternity is also rebuttable if the child is of questionable
physical appearance, for example if born a mullato ie of mixed black and white parentage
when both parents are black or white.
Paternity me be rebutted if the child is born at full term (nine months) when the
relationship of the parties is of a shorter duration or if intercourse was not possible during
the period the child was born ie where the father was away unless the conception was by
artificial insemination.
EXTRA MARRIED CHILDREN
These are children born to a man or woman who is married to someone else, over to an
unmarried woman and a man married to another women. Paternity may be established by
a blood test or by the child birth register if the father acknowledged in writing that he was
the father at the time of registering the birth. Section 15 of the Act provides as follows:36
Dickey A, Family Law (3rd Ed ) LBC information services (1997)
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“ No person shall be bound as father to give notice of an illegitimate
Child except on the joint request of the mother and himself and upon his
Acknowledging himself in writing to be the father of the child in the presence of
Of the registrar”.
By section 21(2), where a person acknowledges himself to be a father of an illegitimate
child, the registrar shall require him to sign the register first, before the mother. If they
can not sign, they are required to affix a mark on the register.
Every child is required to be registered within one month of being born. The prescribed
form for registration of birth provides for particulars of the mother and father of the child
and also details of their marriage . Where the form is blank with respect to particulars of
the marriage of the parent, it can be presumed teat the child is illegitimate. Paternity can
also be presumed where there is a maintenance agreement between the mother and the
father of the child as in Rita Mwaluanga V. Jeep Juul Nielsen37 or where a man
acknowledges that he is the father of a child by executing some formal instrument to that
effect as held by the court in charity oparaocha V. Winnie Murambiwa38 .
“ In this case, the man, a Nigerian resident in Zambia registered two children at the
Nigerian High Commissioner and obtained pass ports for them in his name.
It would appear that a child born to a Zambian man and woman in an extra –martial
relationship however, would still be required to be registered under the registration of
Birth and Deaths Act.
Rights of illegitimate children
Generally, children born outside marriage have the same rights as those born in marriage.
The mother, and the father where paternity is not denied, have a duty to maintain the
child. The rights of children to maintenance and inheritance have already been discussed
herein. The rights briefly refer to the following :Rights of succession
Section 3 (2) of the legitimacy Act has not been amended to conform to other recent
development in the law. It provides that the legitimating of a person under this Act does
not enable him or his spouse, children or remoter issue to take any interest in real or
personal property save as is hereinafter in this Act expressly provided.
The Intestate Succession Act and the wills Act however both provide that a child born in
or out of marriage is entitled to take any interest:
(a) in the estate of an intestate dying after the date of legitimation
(b) under any disposition coming into operation after the date of legitimation
37
38
unreported
SCZ Judgment No. 15/2004
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(c) by descent under an entitled interest created after the date of legitimating in
a like manner as if the legitimated person has been born legitimate.
In other words, all these rights to property accrue to the person born out of marriage
only if the person has been legitimated by subsequent marriage of the person’s
parents
It is therefore clear that a person born outside marriage to an unmarried couple can be
legitimated and will be as entitled to succession as a person born in marriage. This is
further shown in section 7 (2) and section 13 of the legitimate Act.
Rights of children of void and vorable marriages
In the case of children of void marriage section 4 provides as follows:
Section 4(1) subject to the provisions of this section, the child of a void marriage,
whether born before or after the appointed date, shall be treated as the legitimate child
of his parents if at the time of the act of intercourse resulting in the birth (or at the
time of the celebration of the marriage if later) both or either of the parties reasonably
believed that the marriage was valid.
Section 5 Provides for the legitimacy of children of voidable marriages, It provides
that;
“ where a decree of nullity is granted in respect of a voidable marriage, any child who
would have been the legitimates child of the parties to the marriage if it had been
dissolved instead of annulled, at the date of the decree shall be deemed to be their
legistimate child notwithstanding the annulment.
Furthermore, section 10 provides that a legitimated person has the same rights as a
person born legitimate.
It can however be said that the legitimacy Act needs to be harmonized with the laws
on succession and inheritance to remove any doubts that may exist with regard to
children born out of wed lock.
Illegitimate children no longer suffer any legal disadvantage and such terms as
“bastards”, “bush” or “roadside” children or “filius nulius” (child of nobody) are no
longer used to describe them. At common law in the eighteenth century, an
illegitimate child was referred to as a bastard and as such, the child had no heritable
blood. He or she had no legal right to maintenance nor could he / she inherit property
and no one could inherit property and no one could inherit through him or her. He or
she could however acquire property and have his/his own heirs to inherit from him or
her. Law reform has changed this and in England, the family law Reform Act of
1987 ended the distinction between based on the marriage status of their parents.
This was also done by the United Nations convention on the rights of the child.
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SUCCESSION
In this country, Inheritance is governed by the Interstate Succession Act Cap 59 of the
Laws of Zambia, and by the Wills and Administration of Testate Estates Act Cap 60.
These two statutes were enacted in 1989.
The reason for the enactment of the Intestate succession Act was basically to provide
a uniform interstate succession law that will be applicable through out the country
and other matters that can be said to be incidental thereto.
Before 1989, interitance laws that applied to African and indigenous people were
their customary laws. This was as a result of the colonial system of non-interference
with African’s ways of life and the excusory clause entrenched itself in the
constitution in Article 23 (4) ( c ) and ( d ) . In spite of the enactment of the intestate
succession Act, the constitutional provision has not been changed to harmonise with
the intestate succession law and the new law can therefore be challenged for
conflicting with the supreme law.
Distribution of Estate
Section 5 deals with the distribution of the estate of a deceased person. It gives 50
percent to the children proportionate to their needs 20% goes to the surviving spouse
proportionate to the duration of the marriage or such consideration as contribution to
the acquisition of matrimomial property, 20% to the parents to the deceased and the
remaining 10% distributed to the deceased dependents equal shares, provided a
priority dependent “can apply for adjustment of his/her share if circumstances
necessitate the position to be enlarged.
By section 5 (2), the shares of the estate inherited by the minor shall be held for him
or by her /his parents or legal guardian section 5 closes the list of beneficiaries.
However, by section 6, near relatives may also inherit if special circumstances exist.
In the absence of relatives, the estate vests in the state “bona vacantia”
Section 6 provides for distribution of the estate where the interstate is survived by no
spouse but by other categories of beneficiaries; while section 7 provide for
distribution where the intestate is survived by a spouse, but not by other categories of
beneficiaries.
Section 8 provides that personal chattel in a monogamous marriage devolve to the
child or children or spouse or both equally and absolutely,
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Section 9 and 10 is concerned with the homestead.
It is important to note that start adherence to these provision is important otherwise
should any person disregard them, the consequences are grave. Section 14 provides for
offences for depriving a beneficiary. The penalty of 750 penalty units or two years
imprisonment or both is what maybe meted out against an individual guilty of going
against these provisions.
Appointments of Administrators
This is found under Part III of the Act. The Act in section 15 provides for any interested
person to apply and be granted letters of administration.
Section 15 (1) Provides that;
“Where the deceased has died intestate the court may, on the
application of any interested person grant letters of administration
of the estate to that interested person.
According to section 15 (3);
“Where no person applies for letters of administration, letters of
administration maybe granted to the administrator – General or to a creditor of the
deceased
The number of persons that can be granted letters of administration shall not exceed four
as provided for by section 16.
Duties and Powers of Administrator
This is provided for by section 19. Their duties include paying debts and funeral
expenses, as well as effecting distribution of the estate in accordance with the rights and
entitlements of the beneficiaries. An administrator must account for the property, and can
apply to Court to sell if doing so is in the best interest of the beneficiaries.
In that case, an administrator must obtain the best (market) price, and only do so upon
getting a court order.
Effect of grant of letters of administration
This can be read in section 24
Once letters of administration have been granted, subject to any limitation contained in
the letters of administration, the grant entitles the administrator to all rights belonging to
the deceased as if the administration had been granted at the moment after his death
except however that letters of administration shall not render valid any intermediate acts
of the administrator of an intestate’s estate.
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Secondly, the letters of administration shall have effect over the whole of the estate of the
deceased through out Zambia.
It shall be conclusive against all debtors of the deceased. This means that upon
production of the letters of administration, It evidences authority to demand from the
debtors any money belonging to the deceased.
Revocation
By the operation of section 29; letters of administration may be revoked in the following
circumstances; namely;
(i).
If the letters were obtained in circumstances in which the court proceedings were
defective.
(ii) If the grant was obtained fraudulently.
(iii) If it is based on untrue statement of fact.
(iv) If the grant has become inoperative or of no use.
(v). For failure to account or falsification of accounts
TESTATE SUCCESSION
It is not always that upon the demise of a person his property is shared in accordance with
the provisions of the Intestate Succession Act. This is because some individuals are so
prudent and reasonable that in anticipation of death, they put in writing how they would
like their estate to be distributed and to whom that estate should be distributed. This wish
of a person getting ready to die is so well respected that where these instruction are
validly embodied in a document, it becomes an offence to disregard them when he dies.
This document in which the instructions as to how property is to be distributed is known
as a Will. The making, executing and all matters related to the validity of a will are
contained in the Wills and Administration of Testate Estates Act, Cap 60 of the Laws of
Zambian
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Capacity to make a will
Every person who is not a minor (i.e. who is above eighteen years old) and of sound mind
may make a will. A blind or illiterate person may make a will if he or she is of sound
mind.
Requirements of a valid will.
To be valid, the Act provides that it must be in writing, and it must be signed in
accordance with section 6(1) of the wills Act, that is to say it must be signed at the foot
by the Testator in the presence of two witness, both present at the same time, and they
must also sign the will in the presence of the Testator and of each other. A blind person
or a person non compos mentis (of unsound mind) may not be a witness to a will.
A Blind or illiterate Testator
In the case of a blind or illiterate Testator making a Will, the Will must be read by a
competent person who did not participate in the making of Will. Such person shall
explain the contents of the will to the testator before it is signed. The essence if this is to
ensure that the testator is fully aware of what he/she is appending his signature.
The Person explaining shall also declare in writing that he/she read over and explained
the contents of the Will to the Testator, and that the testator appeared to have perfectly
understood it before signing as stated above.
An exception to the requirement for a valid will as laid out in section 6 (1) is that made
by soldiers, other staff in active military or security services and persons so to terminally
ill that they have abandoned all hope of living. These may:
(i)
Write a will which is not witnessed, provided it is in the handwriting of that
Testator.
(ii)
Write or have a will written by another provided it is witnessed by one person
(iii)
Make an oral will in the presence of at least two witnesses.
APPOINTMENT OF AN EXECUTOR
It was stated in the case of Instate Succession that any person may be appointed as an
Administrator. This person must comply with the requirement of the law for the purpose
of discharging the functions of that office. It can therefore be said that an administrator is
appointed and derives his power from the law.
However, in the case of an Executive, it is the Testator who decides which person he/she
feels is best suited to attend to his estate and it is this person who will be Executor. He is
appointed in the will and therefore, he derives his powers from the will.
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This person must be above the age of 21 and must not be insane. He must discharge his
functions in accordance with the instructions in the Will.
He may step down from the office of Executorship either by oral application to the court
or in writing supported by an affidavit.
Revocation of a Will
Revocation of a will refers to the act of withdrawing or otherwise doing away with the
will. A will is of no effect until the Testator dies. That is when it comes alive. This will
is for as long as the Testator lives merely an expression of intentions and like other
intentions; they can be changed at any time or be done away with all together. Therefore,
a will or part of it can be cancelled or altered and this is done by:
(a).
Another will afterwards or by a codicil another document which says it is
changing the will. A codicil must be signed and witnessed in accordance with
section 6 (1) of the wills Act just like a Will.
(b).
Written intention to change the will, similarly signed and witnessed.
(c).
Burning, tearing or other ways of destroying done by the Testator or by someone
else who is ordered to destroy the will by the Testator himself.
Resealing of foreign Grants
It should be stated that although a Will must be written in conformity with the laws of
Zambia, there are instances where a foreign will may have to be executed in this country
because the foreign Testator may have had some interests in form of properly in this
Country. For that foreign will to be executed, the grant to the Testator thereof must be
resealed in this country in accordance with the provisions of Probate (Resealing)
Act Cap 61 of the Laws of Zambia.
This Act in section 3 provides that;
“Where a Court of probate in any part of Her Britannic majesty’s dominion,
or a British Court in a foreign country, has either before or after the
commencement of this Act granted probate or letters of administration in respect
of the estate of the Deceased person, the probate or letter so granted may, on
being produced to and a copy thereof deposited with the High Court be sealed
with the seal of that Court and thereupon shall be of a like force and effect and
have the same operation in Zambia as if granted by that Court.
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The upshot of the provision aforesaid is that a grant of probate obtained elsewhere can be
resealed and executed in Zambia provided that country is a commonwealth country i.e. it
has laws similar to ours.
For the grant to be resealed, conditions that must be fulfilled are that;
(a)
(b)
Probate duty should be paid
In the case of letters of administration, that security has been given in the
sufficient in amount.
Where foregoing is compiled with, then a foreign grant maybe executed in Zambia,.
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BIBLIOGRAPHY
(I)
(II)
(III)
(IV)
Lillian Mushota; Family Law in Zambia, Cases and
Materials. Lusaka :University Of Zambia.
Passingham; Law and Practice in Matrimonial
Causes(3rd Ed.) London: Butterworths(1979)
Bromley P.M; Family Law (9th ed) London: Butterworths.
Dickey A;Family Law(3rded) LBC information
services(1997)
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