THE MARRIAGE BILL, 2015
__________
MEMORANDUM
The objects of this Bill are to(a)
consolidate the law relating to marriage, maintenance and
divorce;
(b)
provide
for
the
registration
of
religious,
civil
and
customary marriages; and
(c)
provide for matters connected with, or incidental to, the
foregoing.
,
, S.C.
Attorney-General
THE MARRIAGE BILL, 2015
__________
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
2.
Short title
Interpretation
PART II
MARRIAGE DISTRICTS AND REGISTRARS
3.
4.
5.
6.
7.
Marriage districts
Registrar-General, Deputy Registrar-General and Registrars
Appointment of marriage officers in foreign countries
Licensing of places of public worship
Licensing of ministers of faith
PART III
GENERAL REQUIREMENTS FOR MARRIAGES
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
Legal status of marriage
Minimum age for marriage
Witnesses to marriage
Types of marriages
Declaration of marriage registration areas
Conversion of marriage
Subsisting marriages
Prohibited marriage relationship
Void marriages
Voidable marriages
Spouses and law of tort
Arrangement to live apart
Rights of widow and widowers
Duration of marriage
PART IV
CHRISTIAN MARRIAGE
22.
Christian marriages
2
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
Place of celebration of Christian marriage
Notice of intention to marry for Christian marriage
Publication of notice of intention to marry
Objection to notice of intention to marry
Obligations of Registrar in relation to objection
Determination of objection
Effect of appeal to objection
Appeal proceedings
Certificate of no impediment
Solemnisation of marriage
Signing of marriage certificate
Recognition of foreign marriages as Christian marriages in Zambia
Christian marriages at embassy, high commission or consulate
Marriage books
PART V
CIVIL MARRIAGE
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
Celebration of civil marriage
Notice of intention to marry
Dispensation with notice
Effect of appeal on findings of objection
Contraction of civil marriage
Signing of marriage certificate
Certificate of no impediment
Special licence
Marriage in building other than licensed building or Registrar’s office
Civil marriages at Zambian embassy, high commission or consulate
for non-Zambian citizens
Civil marriage in foreign countries
Civil marriages at Zambian embassy, high commission or consulate
for Zambian citizens
Recognition of foreign marriages as civil marriages in Zambia
Appointment of diplomatic staff as celebrants of marriage
Duty to register marriages
PART VI
CUSTOMARY MARRIAGE
52.
53.
54.
Governing law for customary marriage
Notification of customary marriage
Contents of notification of customary marriage
3
PART VII
HINDU MARRIAGE
55.
56.
Applicant of Part
Persons authorised to solemnise Hindu marriages
PART VIII
ISLAMIC MARRIAGE
57.
58.
Application of Islamic Law
Officiating of Islamic marriages
PART IX
REGISTRATION OF MARRIAGES
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
Registration of Christian marriages
Registration of civil marriages
Registration of customary marriages
Registration marriage settlement
Registration of Hindu marriages
Registration of Islamic marriages
Registration of marriages contracted abroad
Evidence of marriages
Register, records and returns
Monthly returns
Register of marriages
Certificate of marriages to be evidence
Certified copies
Correction of errors in Register of Marriages
Correction of errors in records and returns
PART X
MATRIMONIAL DISPUTES AND PROCEEDINGS
Jurisdiction
74.
Jurisdiction in matrimonial causes
Grounds for Dissolution of Christian Marriage
75.
76.
Mediation of disputes in Christian marriage
Grounds for dissolution of Christian marriage
4
Grounds for Dissolution of Civil Marriage
77.
78.
79.
80.
Mediation of disputes in civil marriage
Grounds for divorce of civil marriage
Right to petition for separation or divorce
Dismissal of petition for deception or non-disclosure
Grounds for Dissolution of Customary marriage
81.
82.
Mediation of disputes in customary marriage
Grounds for divorce of customary marriage
Grounds for Dissolution of Hindu Marriage
83.
Grounds for divorce of Hindu marriages
Dissolution Islamic Marriage
84.
85.
Governing law for Islamic divorce matters
Registration of divorce under Islamic law
General Provisions on Dissolution of Marriage
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
Divorce not precluded by previous judicial separation
Proof of breakdown of marriage
Joinder of adulterer
Claim for damages from adulterer
Provisions relating to adultery
Unreasonable behaviour
Constructive desertion
Refusal to resume cohabitation
Consent in two year separation
Meaning of separation
Refusal of decree in five years cases on ground of grave hardship to
respondent
Effect of resumption of cohabitation
Grant of decree of dissolution of marriage
Collusion
Discretionary bars
Restriction on dissolution of marriage
Relief for respondent in divorce
Proceedings for decree of presumption of death and dissolution of
marriage
5
104. Reconciliation
105. Statements made in attempt to effect reconciliation
Annulment of Marriage
106.
107.
108.
109.
110.
111.
112.
113.
Grounds for annulment of marriage
Petition for annulment of marriage
Bars to relief where marriage is voidable
Incapacity to consummate marriage
Application of sections 120 and 122 to nullity proceedings
Effect of decree of nullity of voidable marriage
Registration of decree of annulment and divorce
Registration of foreign annulments and divorce
Judicial Separation
114.
115.
116.
117.
118.
Grounds for judicial separation
Effect of judicial separation
Effect of judicial separation on devolution of property
Exercise of joint powers not affected
Effect of decree of judicial separation on subsequent proceedings for
dissolution of marriage
119. Discharge of decree on resumption of cohabitation
Decree Nisi and Decree Absolute
120.
121.
122.
123.
124.
125.
126.
127.
Decree nisi in first instance
Decree absolute where children under twenty-one years, etc.
When decree nisi becomes absolute
Certificate of decree absolute
Proceedings after decree nisi
Rescission of decree nisi where parties reconciled
Rescission of decree nisi on grounds of miscarriage of justice
Rescission of decree where consent in relation to two years separation
obtained by misrepresentation
128. Re-marriage of party to dissolved marriage
129. Prohibition of appeal after decree absolute
PART XI
MAINTENANCE OF SPOUSE AND OTHER RELIEF
130. Definition of marriage
131. Order concerning custody and maintenance of children
6
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
154.
Commencement of proceedings for ancillary relief
Maintenance pending suit
Grounds for maintenance order
Interim maintenance order
Matters for consideration by court in maintenance proceedings
Maintenance order
Duration of periodic payment orders for spouse
Property adjustment orders in connection with divorce proceedings
Preparation of instrument for securing payments by order of court
Prohibition of assignment or attachment of maintenance
Variation and revocation of maintenance order and financial relief
Lapse of maintenance order
Recovery of maintenance arrears
Unenforceable payment of arrears
Application for variation or discharge of financial provision order due
to changed circumstances
Maintenance agreement
Variation of maintenance agreement by court during life of parties
Variation of maintenance agreement by court after death of pary
Avoidance of transactions intended to prevent or reduce financial
relief
Orders for repayment in certain cases of sums paid after cessation of
order on remarriage of party
Payment etc, under order made in favour of person suffering from
mental disorder
Enforcement of maintenance order
Other relief for spouse
PART XII
MATRIMONIAL PROPERTY
155.
156.
157.
158.
159.
160.
161.
162.
163.
164.
165.
166.
Application of Islamic law
Equal status of spouses
Reserved rights and liabilities
Ownership of matrimonial property
Property rights in polygamous marriages
Acquisition of interest in property by contribution
Spousal liability
Consideration of customary law principles
Protection of interests in matrimonial property
Presumptions on property acquired during marriage
Gifts between spouse
Antecedent debts of spouse
7
167. Action for declaration of rights to property
PART XIII
INTERVENTION
168.
169.
170.
171.
172.
173.
Intervention by Attorney-General on request from court
Delegation by Attorney-General
Intervention by other persons
Procedure on intervention
Rescission of decree nisi in consequence of intervention
Proceedings not to be taken to be finally disposed of before decree
absolute
PART XIV
EVIDENCE
174.
175.
176.
177.
178.
179.
180.
Determination of age of minor
Standard of proof
Evidence of husbands and wives
Evidence of adultery, cruelty or desertion
Proof of marriage, birth or death
Convictions for crimes
Restrictions on publication of evidence
PART XV
OFFENCES AND PENALTIES
181.
182.
183.
184.
185.
186.
187.
188.
189.
Effect of promise to marry
False statement in notice of intention to marry or notice of objection
Marriage to person under minimum age
Marriage to persons within prohibited marriage relationship
Coercion, fraud etc.
Ceremony performed by unauthorised person
Offences relating to celebration or witnessing of marriage
Offences relating to registers and returns
Failure to register marriage, annulment of marriage or divorce
PART XVI
GENERAL PROVISIONS
190. Attachment
191. Recovery of monies as judgement debt
8
192.
193.
194.
195.
196.
197.
198.
199.
200.
201.
202.
Appeals
Hearing to be in open court
Injunctions
Costs
Frivolous or vexatious proceedings
Rules
Regulations
Repeal of Cap. 50, Cap. 57 and Act No.20 of 2007
Cessation of application of Married Women Property Act
Transitional provisions
Savings
9
A BILL
ENTITLED
An Act to consolidate the law relating to marriage,
maintenance and divorce; provide for the registration of
religious, civil and customary marriages; and to provide
for matters connected with, or incidental to, the foregoing.
ENACTED by the Parliament of Zambia.
Enactment
PART I
PRELIMINARY
Short title
1.
This Act may be cited as the Marriage Act,
2.
In this Act, unless the context otherwise
2015.
Interpretation
requires“ante-nuptial settlement” means a contract made
between a man and a woman before they get
married, which determines the disposition of
any property rights and interests;
“appeal” includes an application for rehearing;
“Chief” means the person recognised as such under
Cap. 287
the Chiefs Act;
“child” means a person who is below the age of
eighteen years;
“child of family” includes a child –
(a)
adopted by a husband and wife, or by
either of them with the consent of the
other;
(b)
of the husband and wife, born before the
marriage; and
10
(c)
of either party to a marriage, who has
been accepted by the other party as a
child of the family;
“certificate of impediment” means the certificate of
impediment provided for in section thirty-one;
“co-habit” means to live in an arrangement in which
an unmarried couple lives together in a longterm relationship that resembles a marriage;
“conciliatory body” means (a)
a body established under this Act for
the purpose of reconciling parties to a
marriage;
(b)
a mechanism of conciliation recognised
under customary or religious law;
(c)
any other body designated as such by
the Registrar-General, by notice, in the
Gazette; or
(d)
any other body established by any
written
law
for
the
purposes
of
reconciling parties to a marriage;
“contribution” means monetary and non-monetary
contribution, and includes (a)
domestic work and the management of
the matrimonial home;
(b)
child care;
(c)
companionship;
(d)
management
of
family
business
or
property; and
(e)
farm work;
“court” means in relation to matrimonial causes of (a)
Cap. 29
a customary marriage, a local court
established under the Local Court Act;
11
(b)
a religious marriage, a subordinate
court
Cap.28
established
under
the
Subordinate Courts Act; and
(c)
a civil marriage, the High court;
“cross-petition” includes an answer in which the
respondent to a petition seeks a decree or
declaration referred to in paragraph (a) or (b)
of the definition of “matrimonial cause”;
“customary marriage” means a marriage celebrated
according to the rites of a community and one
of the parties to which is a member of that
community or any marriage celebrated under
Part V;
“date of marriage” means the date of solemnisation
or registration of the marriage;
“decree” means a judgment or order, and includes a
decree nisi and an order dismissing a petition
or application or refusing to make an order;
“district” means a marriage district constituted
under section three;
“dowry” means any token of stock, goods, money or
other
property
given
or
promised
in
consideration of an intended marriage;
“faith” means an association of a religious nature
and, in the case of any system of religious
beliefs which is divided into denominations,
sects or schools, the denomination, sect or
school;
“family business” means any business which (a)
is run for the benefit of the family by
both or either spouse; and
12
(b)
generates income or resources wholly
or part of which are for the benefit of
the family;
“financial
arrangement”
means
any
provision
governing the rights and liabilities of the
parties to a marriage towards each other,
including
a
marriage
which
has
been
dissolved or annulled, in respect of the
making or securing of payments or the
disposition or use of any property, and any
rights and liabilities with respect to the
maintenance or education of a child, whether
a child of the family or not;
“guardian” includes a parent or any person in loco
parentis;
“Hindu” means a person who is (a)
a Hindu by religion in any form,
including a Virashaiva, a Lingayat and
a follower of the Brahmo, Prarthana or
Arya Samaj;
(b)
a Buddhist of Indian or non-Indian
origin; or
(c)
a Jain or a Sikh by religion;
“Kadhi” means a Muslim priest or preacher or a
leader of a Muslim community who has been
licenced under this Act to celebrate Islamic
marriages;
“licensed minister” means a minister of religion,
appointed under section seven, to solemnise
marriages in Zambia;
“maintenance agreement” means an agreement, in
writing, made between the parties to a
marriage containing financial arrangements,
13
whether made during the continuance of the
marriage
or
after
the
dissolution
or
annulment of the marriage, and includes a
separation agreement which does not contain
any financial arrangements;
“marriage” means the voluntary union of a man and
a woman, whether in a monogamous or
polygamous
union,
and
registered
in
accordance with this Act;
“marriage certificate” means a marriage certificate
issued under this Act;
“matrimonial home” means any property that is
owned or leased by one or both spouses and
occupied or utilised by the spouses as
their family home;
“matrimonial cause” means (a)
(b)
proceedings for a decree of –
(i)
dissolution of marriage;
(ii)
nullity of marriage; or
(iii)
judicial separation;
proceedings for a declaration
of the
validity of(i)
the dissolution or annulment of a
marriage;
(ii)
a decree of judicial separation;
(iii)
the
continued
operation
of
a
decree of judicial separation; or
(iv)
an order discharging a decree of
judicial separation;
(c)
proceedings
with
maintenance
of
a
respect
to
the
party
to
the
proceedings, settlements or damages in
respect of adultery, being proceedings
14
in relation to concurrent, pending or
completed proceedings referred to in
paragraphs (a) or (b);
(d)
proceedings
with
respect
to
the
enforcement of a decree or the service
of process or costs, in relation to
concurrent,
pending
or
completed
proceedings referred to in paragraphs
(a), (b) or (c); or
(e)
proceedings seeking leave to institute
proceedings for a decree of dissolution
of marriage or judicial separation or
proceedings in relation to proceedings
seeking such leave;
“matrimonial property” means (a)
the matrimonial home or homes;
(b)
household goods and effects in the
matrimonial home or homes;
(c)
immovable
and
moveable
property
other than that in paragraph (a) or (b),
owned by both or either spouse and
acquired during the subsistence of a
marriage; or
(d)
any other property legally acquired
during the subsistence of a marriage;
“matrimonial
proceedings”
instituted
under
proceedings for the
Part
means
IX,
proceedings
and
includes
payment of maintenance
instituted independently of a petition for a
declaratory decree for annulment, separation
or divorce;
“mental disorder” has the meaning assigned to it in
Cap. 305
the Mental Disorder Act;
15
“Minister of faith” means a priest, pastor, kadhi,
sheik or imam, or (leader of Hindu faith);
“monogamous
marriage”
means
a
marriage
between a man and a woman by which
neither of them during the subsistence of the
marriage is at liberty to contract any other
form of marriage with any other person, and
includes a marriage whose character has
been converted to a monogamous marriage by
a declaration made under section thirteen,
and an originally polygamous or potentially
polygamous marriage;
“monthly return” means the return made by
registrars to the Registrar-General under
section sixty-eight;
“party” in relation to a marriage, an intended
marriage or purported marriage, means a
spouse in a marriage, the intended spouse to
a
marriage
or
purported
spouse
in
a
marriage;
“petition” includes a cross-petition;
“petitioner” includes a cross-petitioner;
“polygamy” means the state or practice of a man
having more than one wife simultaneously;
“proceedings” includes cross-proceedings;
“prohibited marriage relationship” has the meaning
assigned to it in section fifteen;
“register” means the register of marriages kept for
purposes of this Act;
“Registrar”
means
a
Registrar
of
Marriages
appointed under section four;
“Registrar-General” means the Registrar-General of
Marriages appointed under section four, and
16
includes the Deputy Registrar-General of
Marriages and any person lawfully acting as
the Registrar-General of Marriages or the
Deputy Registrar-General of Marriages;
“respondent” includes a petitioner against whom
there is a cross-petition;
“special licence” means a special licence granted by
the Minister under section forty-four;
“spouse” means a husband or a wife; and
“witness” means to be present at, to observe and
attest to the solemnisation or celebration of a
marriage by signing one’s name to or putting
one’s mark on a marriage certificate.
PART II
MARRIAGE DISTRICTS AND REGISTRARS
Marriage
districts
3.
(1)
The Minister may, by statutory notice,
divide Zambia into districts for the purposes of this Act
and may, by like notice, alter such districts by change of
boundaries, union or subdivision of districts or by the
formation of new districts.
(2)
A district, municipal or city council shall be a
marriage district for the purpose of the registration of
marriages under this Act.
Registrar-General,
Deputy RegistrarGeneral and
registrars
4.
(1)
The Public Service Commission shall
appoint as public officers –
(a)
the Registrar-General of Marriages;
(b)
the
Deputy
Registrar-General
of
Marriages;
(c)
the
Assistant
Registrar-General
of
Marriages;
17
(d)
the registrars of marriages and deputy
registrars of marriages for any marriage
district; and
(e)
such marriage officers as are necessary
for purposes of this Act.
(2)
The functions of the Registrar-General are to
(a)
perform civil marriages;
(b)
register
marriages
solemnised
or
celebrated under this Act;
(c)
issue
marriage
certificates
for
all
registered marriages;
(d)
issue certificates of no impediment to
persons who intend to marry and who
qualify for that certificate; and
(e)
determine
objections
of
notices
to
marry.
(3)
The Registrar-General may, by instrument in
writing, delegate the functions of Registrar-General to the
Deputy Registrar-General, the Assistant Registrar-General
or registrar on such terms and conditions as the
Registrar-General may determine.
(4)
The Assistant Registrar-General of Marriages
and the Deputy Registrar of Marriages for any marriage
district shall, in the absence or during the illness or
incapacity of the Registrar-General or registrar of any
marriage district, have and exercise all the powers
conferred by this Act upon the Registrar-General and the
registrars, respectively.
(5)
A Chief and the council secretary or town
clerk of a district council shall register customary
marriages for their respective marriage districts.
18
Appointment of
marriage officers
in foreign
countries
5.
(l)
The Registrar-General may, by notice in
the Gazette, appoint a member of the diplomatic staff of
Zambia in a foreign country to celebrate civil marriages
for the purposes of this Act.
(2)
A person appointed under subsection (l) shall
keep a record of the marriages celebrated by that person
in that country and shall deliver the record to the
Registrar-General for the registration of the marriages in
accordance with the provisions of this Act.
Licensing of
places of public
worship
6.
The Minister may, by statutory notice, license
any place of public worship to be a place for the
solemnisation of monogamous marriages and may, by like
notice, cancel such licence.
Licensing of
ministers of faith
7.
(1)
The Minister may, by statutory notice,
appoint any minister of any church or religious body to
solemnise marriages and may, by like notice, cancel such
appointment.
(2)
A minister of faith may apply to the Minister,
in the prescribed manner and form, to be appointed as a
marriage officer for the purposes of this Act.
(3)
The Minister shall appoint a minister of faith
who makes an application under subsection (l) as a
marriage officer if the application meets the requirements
of this Act.
(4)
The Minister shall issue a person appointed
as a marriage officer under this section with a licence.
(5)
officiate
A person appointed as a marriage officer shall
at
marriages
celebrated
according
to
the
traditions of the faith in which the minister of faith serves.
19
(6)
The Minister may cancel a licence issued to a
person under this section and shall give written reasons
for the cancellation of the licence.
(7)
A licence granted in respect of marriages
under any law in operation before the commencement of
this Act shall, if the licence has not been cancelled at the
commencement of this Act, be deemed to be a licence
granted under this section.
PART III
GENERAL REQUIREMENTS FOR MARRIAGES
Legal status of
marriage
8.
(1)
Parties to a marriage have equal rights
at the time of the marriage, during the marriage and at
the dissolution of the marriage.
(2)
All marriages registered under this Act have
the same legal status.
Minimum age
for marriage
Witnesses to
marriage
9.
A person shall not marry unless that person
has attained the age of eighteen years.
10.
(1)
A marriage conducted under this Act
shall be witnessed by two competent witnesses.
(2)
A person is not competent to act as a witness
if that person is (a)
a child;
(b)
not competent to enter into a contract
because of(i)
mental disability rendering that
person
incapable
of
understanding what the parties
are doing; or
(ii)
intoxication; or
20
(c)
unable
to
understand,
through
an
interpreter or otherwise, the language
in which the ceremony is held.
(3)
The person who solemnises or celebrates a
marriage shall not be a witness to the marriage for the
purpose of this section.
Types of
marriages
11.
(1)
A marriage may be registered under
this Act if it is solemnised or celebrated(a)
in accordance with the rites of a
Christian denomination;
(b)
as a civil marriage;
(c)
in accordance with the customary rites
relating to any community;
(d)
in accordance with the Hindu rites and
ceremonies;
(e)
in accordance with Islamic law; or
(f)
in accordance with the practice of any
other faith or other group as may be
designated, by notice, in the Gazette.
(2)
A Christian, Hindu or civil marriage is
monogamous.
(3)
A marriage celebrated under customary law
or Islamic law is presumed to be polygamous or
potentially polygamous.
Declaration of
marriage
registration areas
Conversion of
marriages
12.
The Minister may, by notice in the Gazette,
declare any area of Zambia to be a marriage registration
area for the purposes of this Act.
13.
being
a
(1)
A marriage may be converted from
potentially
polygamous
marriage
to
a
21
monogamous marriage if each spouse voluntarily declares
the intention to make that conversion.
(2)
A polygamous marriage may be converted to a
monogamous marriage if at the time of the conversion the
husband has only one wife.
(3)
A declaration under subsection (l) shall be
made in the presence of a registrar and shall be recorded
in writing and signed by each spouse.
(4)
A registrar before whom a declaration is made
under subsection (3) shall forthwith transmit a copy of the
declaration to the Registrar-General.
(5)
Where
a
declaration
is
made
under
subsection (l), the Registrar-General shall cancel and take
possession of the certificate registering the marriage as
potentially polygamous and shall issue a certificate
registering the marriage as a monogamous marriage.
(6)
The Registrar-General shall enter the details
of converted marriages in the prescribed manner into the
Register of Marriages.
Subsisting
marriages
14.
Subject to section thirteen, a married person
shall not while(a)
in a monogamous marriage, contract
another marriage; or
(b)
in
a
polygamous
or
potentially
polygamous marriage, contract another
marriage in a monogamous form.
Prohibited marriage
relationship
15.
(1)
A person shall not marry-
(a)
that
person’s
grandparent,
parent,
child, grandchild, sister, sister-in-law,
half-sister,
brother,
brother-in-law,
half-brother, son-in-law, daughter-in22
law, cousin, great aunt, great uncle,
aunt, uncle, niece, nephew or great
niece or great nephew;
(b)
the
grandparent,
parent,
child,
grandchild, aunt, uncle, nephew or
niece of that person’s spouse or former
spouse;
(c)
that person’s step-parent or step-child;
(d)
a
person
whom
that
person
has
adopted or by whom that person has
been adopted; or
(e)
any other person where such marriages
is prohibited under customary law.
(2)
For
the
purposes
of
this
section,
a
relationship of the half-blood is a bar to marriage.
(3)
A person who, by this section, is forbidden to
marry shall be considered to be within a prohibited
marriage relationship.
(4)
The marriage of a person with that person’s
cousin does not apply to persons who profess the Islamic
faith.
Void marriages
16.
(1)
A union is not a valid marriage if at the
time of the making of the union(a)
either party is below the minimum age
prescribed for marriage under section
nine;
(b)
the parties are within the prohibited
marriage relationship;
(c)
either party is incompetent to marry by
reason of a subsisting marriage;
(d)
by order made pursuant to section
thirty, the court has directed that the
23
intended
marriage
is
not
to
be
contracted;
(e)
the consent of either party has not been
freely given;
(f)
either
party
is
absent
from
the
ceremony;
(g)
both parties knowingly and wilfully(i)
permit
a
person
who
is
not
authorised to do so to solemnise
or celebrate the union; or
(ii)
acquiesce in its solemnisation in
a place other than the office of a
registrar or a licensed place of
worship or place authorised by
the special licence;
(h)
a party is mistaken about the identity
of the other party; or
(i)
a party uses false names or knowingly
or wilfully enters into the marriage for
fraudulent purposes.
(2)
Consent is not freely given where the party
who purports to give it(a)
is influenced by coercion or fraud;
(b)
is mistaken concerning the nature or
purporse of the ceremony; or
(c)
is suffering from any mental disorder or
disability,
whether
permanent
or
temporary, or is intoxicated or under
the influence of drugs so as not to
appreciate the nature or purport of the
ceremony.
Voidable
marriages
17.
A marriage is voidable if24
(a)
at the date of the marriage(i)
either party was and has ever
since
remained
incapable
of
consummating it;
(ii)
either party was, and has ever
since
remained,
recurrent
subject
attacks
of
to
mental
disability;
(b)
the parties failed to give notice of
intention
to
marry
under
section
twenty-four or section thirty-eight;
(c)
notice of objection to the intended
marriage having been given, was not
withdrawn or dismissed;
(d)
a person officiating at the marriage was
not lawfully entitled to do so;
(e)
at the time of the marriage –
(i)
the
from
respondent
a
was
sexually
suffering
transmitted
disease in a communicable form;
or
(ii)
the respondent was pregnant by
someone
other
than
the
petitioner; or
(f)
the
marriage
is
not
registered
in
accordance with the provisions of this
Act.
Spouses and
law of tort
18.
Despite the provisions of any other written
law(a)
a spouse shall not be liable for the torts
of the other spouse by reason of being
a spouse;
25
(b)
spouses have the same liability in tort
towards each other as if they were not
married; and
(c)
a spouse shall be entitled to claim, in
any action resulting from a negligent
act, omission or breach of duty, which
causes loss of the companionship of the
other, or damages in respect of that
loss.
Arrangement to
live apart
19.
(1)
The parties to a civil marriage may
agree to live apart for one year and the agreement to live
apart shall be valid and enforceable, and shall be filed
with the court.
(2)
Despite subsection (l), the court may vary or
set aside an agreement or any of its provisions if it is
satisfied that since the agreement was made, there has
been a material change of circumstances.
(3)
A party to a civil marriage may apply to the
court to determine their status after the expiry of the one
year period from the date of the agreement.
Rights of widow and
widowers
20.
(1)
A widow or widower may re-marry.
(2)
A widow or a widower may elect not to re-
marry.
Duration of
marriage
21.
A marriage registered under this Act subsists
until it is determined by(a)
the death of a spouse;
(b)
a decree declaring the presumption of
the death of a spouse;
(c)
a decree of annulment;
(d)
a decree of divorce; or
26
(e)
a
decree
of
divorce
or
annulment
obtained in a foreign country and
recognised in Zambia under this Act.
PART IV
CHRISTIAN MARRIAGE
Christian
marriages
22.
This Part applies to a marriage where a party
to the marriage professes the Christian religion and
intends to marry according to the rites and usages of
marriage observed by the Christian religion.
Place of celebration
of Christian
marriage
23.
(1)
A marriage under this Part shall be
celebrated in a place licensed for public worship under
section six by a person licensed under section seven.
(2)
Marriages may be solemnised in any licensed
place of worship by a licensed minister of the church,
denomination or body to which the place of worship
belongs and according to the rites and usages of marriage
observed in that church, denomination or body, or with
the consent of a recognised minister of the church,
denomination or body to which the place of worship
belongs by any licensed minister of any other church,
denomination or body according to the rites and usages of
marriage observed in any church, denomination or body.
Notice of intention
to marry for
Christian marriage
24.
(1)
Where a man and a woman intend to
marry under this Part, they shall give to the RegistrarGeneral and the person in charge of the public place of
worship where they intend to celebrate the marriage, a
written notice of their intention to marry of not less that
twenty-one days and not more than three months.
27
(2)
A notice given under this section shall include
(a)
the names and ages of the parties to
the intended marriage and the places
where they ordinarily reside;
(b)
the names of the parents of the parties,
if known and alive, and the places
where they ordinarily reside;
(c)
a declaration that the parties are not
within a prohibited relationship;
(d)
the marital status of each party and,
where a party is (i)
divorced, a copy of the relevant
decree; or
(ii)
widow or a widower, a copy of the
death
certificate
of
the
dead
spouse; and
(e)
the date and venue of the marriage
ceremony.
(3)
The notice under subsection (1) shall be
signed by both parties.
(4)
If a person giving the notice under subsection
(1) is unable to write, it shall be sufficient if the person
places that person’s mark or cross to the notice in the
presence of a literate person, who shall attest the mark or
cross in the prescribed form.
(5)
If the marriage to which the notice relates
does not take place within three months from the date of
the notice, the notice and all proceedings consequent
upon it shall be void and fresh notice shall be given in
accordance with subsection (1) before the parties can
solemnise or celebrate the marriage.
28
Publication of notice
of intention to marry
25.
(1)
After receiving a notice under section
twenty-four (a)
the Registrar-General shall publish the
notice
in
such
form
as
may
be
prescribed; and
(b)
the person in charge of the place of
public worship where the marriage is to
be celebrated shall publish the notice in
the prescribed manner in the public
place of worship.
(2)
The Registrar-General shall, upon receipt of
the notice under section twenty-four, cause the notice to
be entered in the Marriage Notice Book, which may be
inspected during office hours without fee.
(3)
The Registrar-General shall publish a notice
by causing a copy of the notice to be affixed and kept on
the outer door of the office of the Registrar-General until
the grant of the marriage certificate or until the expiration
of three months from the date of the notice.
Objection to notice
of intention to
marry
26.
(1)
A person who knows of an impediment
to an intended marriage may give a written notice of
objection to a registrar and the person in charge of the
public place of worship where the notice of intended
marriage is posted in accordance with section twentyfour.
(2)
A notice of objection under this section shall,
as far as is practicable, be given in the same marriage
registration area where the notice of intended marriage
has been given under section twenty-four.
(3)
A notice of objection shall include the name of
29
the person giving the notice of objection and that person’s
relationship with either of the intended parties and shall
state the reasons for objection to the intended marriage.
(4)
A person who has given notice of objection
may, at any time, withdraw the objection, in writing.
Obligations of
Registrar in relation
to objection
27.
(1)
The Registrar shall, upon receiving a
notice of objection, notify the person who intends to
officiate at the marriage ceremony of the objection, in
writing, and shall direct that person not to officiate at the
intended marriage until the objection is withdrawn or
otherwise finally determined.
(2)
The Registrar shall, where the Registrar
receives a written withdrawal of the objection to the
intended marriage, authorise the person who intends to
officiate at the marriage ceremony to officiate at the
marriage ceremony.
(3)
The Registrar shall, upon receiving a notice of
objection, summon the parties to the intended marriage
and the person that has given notice of objection to the
intended marriage and shall hear them
and their
witnesses, if any, and any other relevant person.
Determination of
objection
28.
(1)
The Registrar shall hear an objection
made under section twenty-six within seven days of the
receipt of the notice of objection.
(2)
The Registrar shall determine an objection
within seven days from the date of the hearing under
subsection (3) of section twenty-seven.
(3)
The
Registrar
shall,
if
the
Registrar
determines that the marriage certificate ought to be
issued, remove the objection by cancelling the notice of
objection in the Marriage Notice Book.
30
(4)
The Registrar shall, upon cancellation of the
notice of objection in the Marriage Notice Book, issue the
marriage certificate and the marriage shall proceed as if
the notice of objection had not been entered, but the time
that elapses between the entering and the removal of the
notice of objection shall not be computed in the period of
three months specified in section twenty-four.
(5)
A party dissatisfied with the decision of the
Registrar may appeal to the court within seven days of the
receipt of the decision of the Registrar.
(6)
A person who makes a frivolous, malicious or
fraudulent objection commits an offence and is liable,
upon conviction, to a fine not exceeding two hundred
thousand penalty units or imprisonment for a term not
exceeding two years, or to both.
Effect of appeal
to objection
29.
A marriage ceremony shall not be performed
until an appeal that is made against a decision of the
Registrar
to
permit
the
marriage
ceremony
to
be
performed is heard and determined.
Appeal proceedings
30.
(1)
The court shall hear and determine an
appeal expeditiously.
(2)
The court may hear and determine an appeal
despite the failure of a party or other person to appear
before it.
(3)
The court may, where it considers that a notice
of objection has been entered without reasonable or
probable cause, order the person entering the notice of
objection to pay any reasonable costs incurred by the
parties to the intended marriage by reason of the
proceedings consequent on the notice of objection being
entered.
31
Certificate of no
impediment
31.
(1)
The Registrar shall, where a person
does not object to the celebration of a marriage, issue the
persons intending to marry with a certificate of no
impediment.
(2)
Where a Zambian wishes to celebrate a
marriage outside Zambia and that Zambian is required to
obtain a certificate of no impediment from the Registrar,
the Zambian shall apply for the certificate and the
Registrar shall issue the certificate if no person objects to
the intended marriage.
(3)
A certificate of no impediment issued under
this Act is for purposes of this Act valid outside Zambia.
Solemnisation of
marriage
32.
A marriage shall be solemnised with open
doors at a licensed place of worship between 06:00 hours
in the morning and 18:00 hours in the evening, and in the
presence of two or more witnesses besides the officiating
minister.
Signing of
marriage
certificate
33.
(1)
Where a marriage is celebrated in
accordance with the provisions of this Part, the person
officiating at the marriage ceremony shall(a)
complete and sign a marriage certificate
in the prescribed form; and
(b)
cause the marriage certificate to be
signed by the parties and by the
witnesses to the marriage.
(2)
The
person
officiating
at
the
marriage
ceremony shall issue(a)
one copy of the marriage certificate to
the parties;
(b)
retain
one
copy
of
the
marriage
certificate; and
32
(c)
deliver
one
copy
of
the
marriage
certificate to the Registrar.
Recognition of foreign
marriages as
Christian marriages
in Zambia
34.
A
marriage
celebrated
outside
Zambia
otherwise than in accordance with this Part, shall be
recognised as a marriage under this Part if (a)
it is contracted in accordance with the
law of the country where it is celebrated
and is consistent with the requirements
of this Part;
(b)
at the time of the celebration of the
marriage, the parties to the marriage
had the capacity to marry under the
law of the country where the marriage
is celebrated: or
(c)
at the time of marriage, a party to the
marriage is domiciled in Zambia and
both parties had the capacity to marry
under this Act.
Christian marriages
at embassy, high
commission or
consulate
35.
A marriage celebrated in the embassy, high
commission or consulate of a foreign country in Zambia is
a Christian marriage under this Part if (a)
it is contracted in accordance with the
law relating to Christian marriages of
that foreign country;
(b)
at the time of the marriage, the parties
had capacity to marry under the law of
that foreign country and under this Act;
or
(c)
either of the parties is at the time of the
33
marriage domiciled in Zambia and both
parties had capacity to marry under
this Act.
Marriage books
36.
(1)
The Minister shall cause to be printed
and delivered to the Registrars and to the licensed
ministers of licensed places of worship, books of marriage
certificates in duplicate in the prescribed form with
counterfoils.
(2)
The books of marriage shall be kept by the
Registrars and the licensed ministers of the places of
worship at the place of worship.
PART V
CIVIL MARRIAGE
Celebration of
civil marriage
37.
A marriage under this Part shall be celebrated
by the Registrar-General in the place determined by the
Registrar-General.
Notice of
intention to
marry
Dispensation
with notice
38.
Sections twenty-four to thirty-one shall apply
to a marriage celebrated under this Part.
39.
(1)
The Registrar-General may, subject to
section twenty-four, by licence in the prescribed form,
dispense with the notice required by that section where
there is reasonable cause to do so.
(2)
The
Registrar-General
shall,
before
dispensing with the notice required by section twentyfour, confirm that neither party is (a)
within a prohibited relationship;
(b)
below the minimum age for marriage;
or
(c)
married to another person.
34
Effect of appeal
on findings of
objection
40.
(1)
Section twenty-nine applies with the
necessary modifications.
(2)
The Registrar-General shall not exercise the
power conferred by section thirty-nine to dispense with a
notice unless a notice of objection has been withdrawn.
Contraction of
civil marriage
41.
(1)
The
parties
to
an
intended
civil
marriage may contract the marriage before a Registrar in
the presence of two witnesses, in the Registrar’s office or
such place as the Registrar may approve, with open
doors, between the hours of eight hours in the morning
and six hours in the afternoon, in accordance with the
prescribed procedure.
(2)
The Registrar-General shall celebrate the
marriage if the Registrar-General determines that no
impediment exists to the intended marriage.
Signing of marriage
certificate
42.
the
(1)
expiration
The Registrar shall, at any time after
of
twenty-one
days
and
before
the
expiration of three months from the date of the notice of
intention to marry, issue a marriage certificate in the
prescribed form.
(2)
The Registrar-General shall, where a marriage
is celebrated in the presence of a Registrar (a)
complete
and
sign
the
marriage
certificate in the prescribed form;
(b)
cause the marriage certificate to be
signed by the parties and the witnesses
to the marriage; and
(c)
give copies of the marriage certificate to
the parties and retain one copy.
35
(3)
The Registrar shall not issue a marriage
certificate under subsection (1) until the Registrar is
satisfied by affidavit that (a)
one of the parties has been resident
within
the
district
in
which
the
marriage is intended to be solemnised
at
least
fifteen
days
immediately
preceding the granting of the marriage
certificate;
(b)
each of the parties to the intended
marriage is above eighteen years old;
(c)
there is no impediment of kindred or
affinity or any other lawful hindrance to
the marriage; and
(d)
neither of the parties to the intended
marriage is married to any person other
than the person
with whom such
marriage is proposed to be contracted.
(4)
The affidavit referred to in subsection (3) may
be sworn before the Registrar.
(5)
The Registrar taking an affidavit shall explain
to the person making the affidavit what the prohibited
degrees of kindred and affinity are and the penalties
which may be incurred under the provisions of this Act.
Certificate of no
impediment
43.
lf a Zambian wishes to celebrate a civil
marriage in a foreign country in accordance with the law
of that country and the law of that country requires a
certificate of no impediment, the Registrar-General may
issue the Zambian with a certificate of no impediment.
36
Special licence
44.
(1)
The Minister or an authorised officer
may, upon proof made by affidavit that there is no lawful
impediment to an intended marriage (a)
dispense with the giving of notice and
grant a special licence in the prescribed
form authorising the solemnisation of
the
marriage
between
the
parties
named in the special licence by a
registrar or by a licensed minister of a
religious denomination or body; and
(b)
authorise
the
solemnisation
of
the
marriage at a place named in the
special licence.
(2)
In this section, “authorised officer” means a
public officer designated by the Minister as an authorised
officer.
Marriage in
building other than
licensed building or
Registrar’s office
45.
(1)
The minister or registrar solemnising a
marriage shall, where a special licence authorises the
solemnisation of a marriage at a place other than a
licensed place of worship or the office of a Registrar,
observe the formalities provided for a marriage in a
licensed place of worship or the Registrar’s office.
(2)
The minister who solemnises a marriage shall
deliver the marriage certificate to the parties as provided
in section thirty-three.
(3)
The Registrar shall, within seven days of the
receipt of the marriage certificate and special licence,
forward them to the Registrar-General.
Civil marriages at
Zambian embassy,
high commission or
consulate for nonZambian citizens
46.
A person who is not a Zambian may celebrate
a marriage under this Part, in a foreign country, if the
marriage is celebrated in the presence of the Registrar37
General or a person authorised by the Registrar-General
for
that
purpose
in
any
Zambian
embassy,
high
commission or consulate in the foreign country.
Civil marriage in
foreign countries
47.
A marriage celebrated in a foreign country
otherwise than in accordance with section forty-six is
valid if (a)
it was contracted in accordance with
the law of that country;
(b)
at the time of the marriage, the parties
had the capacity to marry under the
law of that country;
(c)
either of the parties is at the time of the
marriage domiciled in Zambia, and
both parties had capacity to marry
under this Act; and
(d)
the Registrar-General is satisfied that
the parties have obtained a certificate of
no impediment, where the law of that
country requires the parties to an
intended
marriage
to
obtain
that
certificate.
Civil marriage at
Zambian embassy,
high commission or
consulate for Zambian
citizens
48.
(1)
A
Zambian
may
celebrate
a
civil
marriage in a Zambian embassy, high commission or
consulate in a foreign country if(a)
it is celebrated in accordance with the
law of the foreign country; or
(b)
both parties have the capacity to marry
under the law of the foreign country.
(2)
Despite
subsection
(l),
a
civil
marriage
celebrated in a Zambian embassy, high commission or
consulate in a foreign country is valid in Zambia if the
38
parties were capable of celebrating the marriage in
Zambia.
Recognition of
foreign marriages as
civil marriages in
Zambia
49.
A civil marriage contracted in a foreign
country shall be recognised as a valid marriage if(a)
it is contracted in accordance with the
law of that country;
(b)
it is consistent with the provisions of
this Part; and
(c)
the parties have the capacity to marry
under this Act.
Appointment of
diplomatic staff
as celebrants of
marriage
50.
(l)
The Registrar-General may appoint, by
notice in the Gazette, a member of the diplomatic staff of
Zambia in a foreign country to which this Part applies to
celebrate marriages under this Act in respect of that
country.
(2)
The
Registrar-General
shall
maintain
a
register of all marriages conducted in foreign countries.
Duty to register
marriages
51.
(1)
A person who celebrates or officiates at
a marriage shall deliver a copy of the marriage certificate
to the Registrar-General and the Registrar-General shall
enter the details of the marriage certificate in the Register
of
Marriages
maintained
for
that
purpose
by
the
where
the
Registrar-General.
(2)
The
Registrar-General
shall,
Registrar-General officiates at a marriage, enter the
details of the marriage in the Register of Marriages
maintained under subsection (1).
(3)
A person who fails to register a marriage
commits an offence and is liable, upon conviction, to a
39
fine not exceeding two hundred thousand penalty units or
to a community service order, or to both.
PART V
CUSTOMARY MARRIAGE
Governing law for
customary marriage
52.
(1) A marriage under this Part shall be
celebrated in accordance with the customs of the
communities of one or both of the parties to the intended
marriage.
(2)
Where the payment of dowry is required to
prove a marriage under customary law, the payment of a
token amount of dowry shall be sufficient to prove a
customary marriage.
(3)
A wife in a customary marriage has, on the
basis of equality with her husband and subject to the
matrimonial property system governing the marriage, full
status and capacity, including the capacity to acquire
assets and to dispose of them, to enter into contracts and
litigate and any rights and powers that she might have at
customary law.
(4)
The Minister may, in consultation with the
House of Chiefs, make regulations regarding the criteria
for
recognising
valid
marriages
celebrated
under
customary law.
Notification of
customary marriage
53.
The parties to a customary marriage shall
notify the Registrar of the marriage within three months
of completion of the relevant ceremonies or steps required
to confer the status of marriage to the parties in the
community concerned.
Contents of
notification of
customary marriage
40
54.
(l)
The notification under section fifty-
(a)
specify the customary law applied in
three shallthe marriage of the parties; and
(b)
contain a written declaration by the
parties that the necessary customary
requirements to prove the marriage
have been undertaken.
(2)
A declaration under subsection (1) shall
contain the signatures or personal marks of two adult
witnesses and each witness shall have played a key
cultural role in the celebration of the marriage.
(3)
The notification under subsection (1) shall
confirm (a)
that the parties to the marriage were
above eighteen years of age at the time
of the marriage;
(b)
that the marriage is between persons
who
are
not
within
a
prohibited
marriage relationship;
(c)
that the parties freely consent to the
marriage; and
(d)
in the case of a second or subsequent
marriage, that the current wife or wives
has or have, as the case may be, been
informed of the marriage.
(4)
Despite subsections (l) and (2), if the marriage
is a subsequent marriage, the notification shall declare
whether –
(a)
the current wife or wives has or have
been
informed
of
the
intended
marriage; and
41
(b)
whether
she
or
they
approve
or
disapprove of the intended marriage
and her or their reasons, as applicable,
for approving or disapproving of the
intended marriage.
PART VI
HINDU MARRIAGE
Applicant of Part
55.
This Part shall apply to persons who profess
the Hindu faith.
Persons authorised
to solemnise Hindu
marriages
56.
(l)
A marriage under this Part may be
officiated by a person authorised by the Registrar-General
and in accordance with the Hindu religious rituals of a
party to the marriage.
(2)
A person authorised to officiate at a marriage
under this Part shall record the details of the marriage in
the prescribed form and shall deliver the record to the
Registrar-General for the registration of the marriage.
PART VII
ISLAMIC MARRIAGE
Application of
Islamic law
Officiating of
Islamic marriages
57.
This Part shall apply to persons who profess
the Islamic faith.
58.
(1) A marriage under this Part shall be
officiated by a kadhi, sheikh or imam as may be
authorised by the Registrar-General.
(2)
A person authorised to officiate at a marriage
under this Part shall record the details of the marriage in
the prescribed form and shall deliver the record to the
Registrar-General for the registration of the marriage.
42
43
PART VIII
REGISTRATION OF MARRIAGES
Registration of
Christian
marriages
59.
(1)
Where a marriage is celebrated as a
Christian marriage, the person officiating at the marriage
shall forward a copy of the marriage certificate to the
Registrar-General for the registration of that marriage
within fourteen days of the celebration of the marriage.
(2)
The Registrar-General shall, before registering
a marriage under subsection (l), confirm that the marriage
complies with the provisions of this Act.
Registration of civil
marriages
60.
(1)
A marriage officer who celebrates a civil
marriage shall record the details of the marriage in the
prescribed form and forward the marriage certificate and
the record to the Registrar-General.
(2)
The Registrar-General shall register a civil
marriage if the parties comply with the provisions of this
Act.
Registration of
customary
marriages
61.
(1)
The parties to a customary marriage
shall, within a period of six months from the date of
completion of the necessary rituals for their union to be
recognised as a marriage under the customary law of any
of the parties, attend at the office of the registrar of the
marriage district in which the marriage took place, with at
least two witnesses to the marriage ceremony, to be
issued with the marriage certificate.
(2)
Where the registrar is satisfied that the
parties to a customary marriage have complied with the
provisions of this Act and the parties have appeared
before the registrar in person with two witnesses, the
44
registrar shall register the marriage and issue the parties
with a marriage certificate.
(3)
The registrar shall enter such details of the
customary marriage as may be prescribed in the Register
of Marriages and the registrar, the parties to the marriage
and the witnesses shall sign their names in the Register of
Marriages.
(4)
The two witnesses to the registration of a
customary marriage may be the parents, brothers, sisters,
uncles or aunts of either of the parties, chiefs, clan heads
or other persons of good standing in the chiefdom
concerned.
(5)
A marriage certificate shall be issued in
respect of each marriage contracted in a polygamous
union.
Registration of
marriage
settlement
62.
(1)
The Registrar shall, at the time of
registration of a customary marriage, where applicable,
record in the Register of Marriages details of any marriage
settlement made in connection with that marriage.
(2)
A copy of the record referred to in subsection
(1) certified by the Registrar-General as being a true copy
shall be admissible as evidence in any court proceedings
and shall be prima facie evidence of the marriage
settlement.
Registration of
Hindu marriages
63.
(1)
A person authorised by the Registrar-
General who celebrates a Hindu marriage shall record the
details of the marriage in the prescribed form and deliver
the record to the Registrar-General and the RegistrarGeneral shall register the marriage.
45
(2)
The Registrar-General shall, before registering
a Hindu marriage, confirm that the marriage complies
with the provisions of this Act.
Registration of
Islamic marriage
64.
(l)
A
Kadhi,
sheikh
or
imam
who
celebrates an Islamic marriage shall(a)
record the details of the marriage;
(b)
issue the parties to the marriage with a
marriage certificate; and
(c)
deliver the record and certificate to the
Registrar-General.
(2)
Where the Registrar-General receives a record
and marriage certificate of an Islamic marriage celebrated
in accordance with the provisions of this Act, the
Registrar-General shall register the Islamic marriage.
Registration of
marriages
contracted abroad
65.
(1) A Zambian who celebrates a marriage
outside Zambia may apply to the Registrar-General for the
registration of the marriage and the Registrar-General
shall register the marriage if the marriage complies with
the provisions of this Act.
(2)
The
Registrar-General
may
consider
a
marriage certificate issued in another country or such
other proof as
the
Registrar-General
may consider
sufficient before registering a marriage celebrated outside
Zambia, and where a marriage certificate is not in the
official language it shall be accompanied by a certified
translation into the official language.
Evidence of
marriage
66.
(l)
A marriage may be proven in Zambia
(a)
a certificate of marriage issued under
bythis Act or any other written law;
46
(b)
a certified copy of a marriage certificate
issued under this Act or any other
written law;
(c)
an entry in the Register of Marriages
maintained under this Act or any other
written law;
(d)
a certified copy of an entry in the
Register of Marriages maintained under
this Act or any other written law; or
(e)
an entry in the Register of Marriages
maintained by the proper authority of
the Khoja Shai, lth’nasheri, Shia imam,
Ismaili or Bohra communities, or a
certified copy of' such an entry.
(2)
Despite subsection (l), a marriage may be
proven in Zambia if it was celebrated in a public place of'
worship but its registration was not required, by an entry
in any register maintained at that public place of worship
or a certified copy of such an entry.
Register, records and
returns
67.
(1)
The Registrar-General shall supply the
registrars with registers, records and forms as may be
prescribed under this Act.
(2)
The Registrar-General shall have custody of
the monthly returns made by the registrars and shall
cause alphabetical indexes of the marriages registered to
be prepared from the monthly returns.
(3)
The registers, monthly returns and indexes in
the custody of the Registrar-General and the registrars of
marriage districts shall be open for inspection
by
members of the public during the prescribed hours and
upon payment of the prescribed fee.
47
Monthly returns
68.
A registrar shall, within ten days of the last
day of each month, forward to the Registrar-General a
copy of all entries made in the marriage register book by
the registrar during the preceding month.
Register of
Marriages
69.
(1)
The Registrar-General shall cause to be
kept and maintained at the Registrar-General’s office the
Register of Marriages in which shall be entered (a)
the marriage certificates transmitted to
the Registrar-General for purposes of
this Act;
(b)
particulars of marriage certificates filed
for registration under this Part, and
every entry made shall be dated on the
day on which it is entered and shall be
signed by the Registrar-General; and
(c)
(2)
the marriages registered under this Act.
The Registrar-General shall, upon payment of
the prescribed fee, at any reasonable time, allow a search
to be made in the Register of Marriages and shall give
certified copies from the Register of Marriages.
(3)
The Registrar and the licensed minister of a
licensed place of worship shall, at any reasonable time,
upon payment of the prescribed fee, allow a search to be
made in the marriage certificates books.
Certificate of
marriage to be
evidence
70.
A marriage certificate filed in the office of the
Registrar-General or a copy of the marriage certificate
purporting to be signed and certified as a true copy by the
Registrar-General, and every entry or certified copy of the
entry in the Register of Marriages shall be admissible as
evidence of the marriage to which it relates in any court or
48
before any person who, by law or consent of the parties
has authority to hear, receive and examine evidence.
71.
Certified copies
(1)
The Registrar-General and a registrar of
a marriage district shall, upon payment of the prescribed
fee, furnish a certified copy of an entry in a register or
return in the registrar’s custody or a certified copy of an
extract from the entry.
(2)
The copy of an entry in any register or return
or the copy of an extract from the entry certified under the
hand of the Registrar-General to be a correct copy, shall
be prima facie evidence in all court proceedings of the
facts contained in the copy.
Correction of
errors in Register
of Marriages
72.
(1)
A party to a marriage may apply to the
Registrar-General,
a
marriage
officer
or
a
person
authorised by the Registrar-General to correct an error or
omission in the Register of Marriages or a marriage
certificate regarding that person’s marriage.
(2)
Where
the
Registrar-General,
a
marriage
officer or a person authorised by the Registrar-General
makes a correction pursuant to subsection (1), the
Registrar-General, a marriage officer or person authorised
by
the
Registrar-General
shall
sign
and
date
the
correction and shall enter the details of the correction
against the relevant entry in the Register of Marriages.
(3)
The Registrar-General shall notify the parties
to a marriage of any change made in the Register of
Marriages or marriage certificate within seven days of
making the change.
49
Correction of errors
in records and
returns
73.
(1)
The Registrar-General or any registrar
authorised by the Registrar-General may correct an error
in a register, return, index or certificate.
(2)
A correction made pursuant to subsection (1)
shall be done without erasure and shall be authenticated
by the Registrar-General.
PART IX
MATRIMONIAL DISPUTES AND PROCEEDINGS
Jurisdiction
Jurisdiction in
matrimonial
causes
Cap. 29
Cap. 28
Cap. 27
74.
(1)
Notwithstanding the Local Courts Act,
the Subordinate Courts Act, the High Court Act or any
other written law, the jurisdiction of a court in divorce,
matrimonial causes and related matters shall be exercised
in accordance with the provisions of this Act.
(2)
A court shall have jurisdiction in proceedings
for divorce or a decree of nullity of marriage if either party
to the marriage(a)
is domiciled in Zambia at the date of
the commencement of the proceedings;
or
(b)
is resident in Zambia at the date of the
commencement of the proceedings and
has been ordinarily resident for a
period of twelve months immediately
preceding that date.
(3)
For the purposes of this Part, a child shall be
deemed to be a child of the family and a child of the
husband and wife if the child is a child of the husband or
wife, or born outside wedlock to either one of them and
adopted by either of them, if at the relevant time the child
50
was ordinarily a member of the household of the husband
and wife and accepted by both as a member of the family.
(4)
A child born before the marriage, whether
legitimated by the marriage or not, who has been adopted
by another person or other persons who are not parties to
the marriage shall be deemed not to be a child of the
family.
(5)
For the purposes of sub-section (3), “the
relevant time” in relation to any proceedings means (a)
the time immediately preceding the
time
when
the
husband
and
wife
ceased to live together or if they have
ceased on more than one occasion to
live together, the
time
immediately
preceding the time when they last
ceased
to
live
together
before
the
institution of the proceedings; or
(b)
if the husband and wife were living
together
at
the
time
when
the
proceedings were instituted, the time
immediately preceding the institution of
the proceedings.
(6)
Subsections (3) and (4) shall apply in relation
to a purported marriage that is void as if the purported
marriage were a marriage.
Grounds for Dissolution of Christian Marriage
Mediation of disputes
in Christian marriage
75.
The parties to a Christian marriage may,
where the parties have a dispute, seek the services of any
reconciliation bodies established for that purpose that
may exist in the public place of worship where the
marriage was celebrated.
51
Grounds for dissolution
of Christian marriage
76.
A party to a marriage may petition the court
for a decree for the dissolution of the marriage on the
ground of (a)
one or more acts of adultery committed
by the other party;
(b)
cruelty, whether mental or physical,
inflicted by the other party on the
petitioner or on the children of the
family; or
(c)
desertion by either party for at least two
years immediately preceding the date of
presentation of the petition.
Grounds for Dissolution of Civil Marriage
Right to petition for
separation or
divorce
77.
(1)
A party to a civil marriage shall not
petition the court for the separation of the parties or for
the dissolution of the marriage unless one year has
elapsed since the celebration of the marriage.
(2)
Nothing in subsection (1) shall prohibit the
presentation of a petition based on matters which have
occurred before the expiration of one year from the date of
the marriage.
Mediation of
disputes in civil
marriage
78.
(1)
The court may refer a matrimonial
dispute that arises in a civil marriage to a conciliatory
process agreed between the parties.
(2)
The proceedings for the dissolution of a civil
marriage may be adjourned for a period not exceeding six
months as the court may think fit for (a)
the court to make further enquiries: or
52
(b)
the parties to the marriage to make
further attempts at reconciliation.
Grounds for
divorce of civil
marriage
79.
(1)
A party to a civil marriage may petition
the court for the separation of the parties or the
dissolution of the marriage on the following grounds:
(a)
adultery by the other spouse;
(b)
cruelty by the other spouse:
(c)
exceptional
depravity
by
the
other
spouse:
(d)
desertion by the other spouse for at
least two years; or
(e)
the
irretrievable
breakdown
of
the
marriage.
(2)
A petitioner may file the petition with the
court for the separation of the parties or the dissolution of
the marriage despite any effort to reconcile the parties.
(3)
A marriage has irretrievably broken down if (a)
a spouse commits adultery:
(b)
a spouse is cruel to the other spouse or
any child of the family;
(c)
a spouse wilfully neglects the other
spouse
for
immediately
at
least
preceding
two
the
years
date
of
presentation of the petition;
(d)
the spouses have been separated for at
least two years, whether voluntarily or
by decree of the court;
(e)
a spouse has deserted the other spouse
for at least two years immediately
preceding the date of presentation of
the petition;
53
(f)
a spouse has been sentenced to a term
of imprisonment for life or for a term of
seven years or more;
(g)
a
spouse
suffers
from
incurable
insanity, and two medical doctors, one
of whom is qualified or experienced in
psychiatry,
have
certified
that
the
insanity is incurable or that recovery is
improbable during the lifetime of the
respondent in the light of existing
medical knowledge; or
(h)
any other ground as the court may
consider appropriate.
Dismissal of
petition for
deception or
non-disclosure
80.
The
court
may
dismiss
a
petition
for
annulment, divorce or separation, on its own motion or
upon an application by the respondent, where the court
determines that a party has(a)
knowingly
deceived
the
court
into
believing that the marriage has broken
down irretrievably or is void or voidable;
or
(b)
failed or neglected to disclose a material
fact
that
marriage
tends
has
to
show
not
that
broken
the
down
irretrievably.
Grounds for Dissolution of Customary
Marriage
Mediation of
disputes in
customary
marriages
81.
(1)
The parties to a customary marriage
may undergo a process of conciliation or customary
54
dispute resolution before the court may determine a
petition for the dissolution of the marriage.
(2)
The
process
of
mediation
or
traditional
dispute resolution in subsection (l) shall conform to the
Cap. 1
principles of the Constitution.
(3)
The person who takes the parties to a
customary marriage through the process of conciliation or
traditional dispute resolution shall prepare a report of the
process for the court.
Grounds for divorce
of customary
marriages
82.
(1) A party to a customary marriage may
petition the court for the dissolution of the marriage on
the ground of(a)
adultery by the wife;
(b)
cruelty, mental or physical, inflicted by
the other party on the petitioner or the
children of the family;
(c)
desertion by either party for at least two
years immediately preceding the date of
presentation of the petition; or
(d)
(2)
irretrievable breakdown of marriage.
The Minister may, in consultation with the
House of Chiefs, make regulations for the implementation
of this section.
Dissolution of Hindu Marriage
Grounds for
divorce of Hindu
marriages
83.
A party to a Hindu marriage may petition the
court for the dissolution of the marriage on the ground
that(a)
the marriage has irretrievably broken
down;
55
(b)
the
other
party
has
deserted
the
petitioner for at least three years before
the making of the petition;
(c)
the
other
party
has
converted
to
another religion; or
(d)
since the celebration of the marriage,
the other party has committed rape,
sodomy, bestiality or adultery.
Dissolution of Islamic Marriage
Governing law for
Islamic divorce
matters
84.
(1)
The dissolution of an Islamic marriage
shall be governed by Islamic law.
(2)
Sections eighty-six to one hundred and five
do not apply to the dissolution of an Islamic marriage.
Registration of
divorce under
Islamic law
85.
Where a Kadhi, sheikh, imam or person
authorised by the Registrar-General grants a decree for
the dissolution of an Islamic marriage, the Kadhi, sheikh,
imam or authorised person shall deliver a copy of the
decree to the Registrar-General.
General Provisions on Dissolution of Marriages
Divorce not
precluded by
previous judicial
separation
86.
(1)
A person shall not be prevented from
presenting a petition for divorce, or the court from
granting a decree of divorce, by reason only that the
petitioner or respondent has at any time on the same
facts or substantially the same facts as those proved in
support of the petition been granted a decree of judicial
separation.
(2)
The court may, on a petition for divorce
pursuant to subsection (1), treat the decree as sufficient
56
proof of any adultery, desertion or other fact by reference
to which it was granted, but shall not grant a decree nisi
of divorce without receiving evidence from the petitioner.
Proof of breakdown
of marriage
87.
(1)
For purposes of sections seventy-six,
seventy-nine, eighty-two and eighty-three, the court
hearing a petition for divorce shall not hold the marriage
to have broken down irretrievably unless the petitioner
satisfies the court of one or more of the following facts:
(a)
that the respondent has committed
adultery and the petitioner finds it
intolerable to live with the respondent;
(b)
that the respondent has behaved in
such a way that the petitioner cannot
reasonably be expected to live with the
respondent;
(c)
that the respondent has deserted the
petitioner for a continuous period of at
least two years immediately preceding
the presentation of the petition;
(d)
that the parties to the marriage have
lived apart for a continuous period of at
least two years immediately preceding
the presentation of the petition and the
respondent consents to a decree being
granted; or
(e)
that the parties to the marriage have
lived apart for a continuous period of at
least five years immediately preceding
the presentation of the petition.
(2)
The court shall, on a petition for divorce
inquire, so far as it reasonably can, into57
(a)
the facts alleged by the petitioner and
into
any
facts
alleged
by
the
respondent;
(b)
the arrangement made or proposed
regarding maintenance and the division
of any matrimonial property; and
(c)
the arrangement made or proposed
regarding the maintenance and custody
of children.
Joinder of
adulterer
88.
(1)
Where in a petition for divorce or in an
answer to the petition a party to the marriage is alleged to
have committed adultery with a specified person, whether
or not a decree of dissolution of marriage is sought on the
grounds of the adultery, that person shall be made a
party to the proceedings.
(2)
Where a person has been made a party to
proceedings for a decree of dissolution of marriage in
pursuance of subsection (1), the court may, on the
application of that person, after the close of the case for
the party to the marriage who alleged the adultery, if it is
satisfied that there is no sufficient evidence to establish
that the person committed adultery with the other party
to the marriage, remove that person from the proceedings.
Claim for damages
from adulterer
89.
(1)
A party to a marriage may, in a petition
for divorce on the ground that the other party to the
marriage has committed adultery with a person, or on
grounds including that ground, claim damages from that
person on the ground that that person has committed
adultery with the other party to the marriage and, subject
to this section, the court may award damages accordingly.
58
(2) Damages shall not be awarded against a person
where the adultery of the respondent with that person has
been condoned, whether subsequently revived or not, or if
a decree of dissolution of the marriage is not made on the
ground of the adultery of the respondent with that person
or on grounds including that ground.
(3)
Damages shall not be awarded under this Act
in respect of an act of adultery committed more than
three years before the date of the petition.
(4)
The court may direct in what manner the
damages awarded shall be paid or applied and may direct
that they shall be settled for the benefit of the respondent
or the children of the family.
Provisions relating
to adultery
90.
(1)
For the purposes of paragraph (a) of
subsection (1) of section eighty-seven, a petitioner shall
not be entitled to rely on adultery committed by the
respondent if, after it became known to the petitioner that
the respondent had committed adultery, the parties have
lived together for a period exceeding, or periods together
exceeding, six months.
(2)
If the parties have lived together after the
adultery for a period of six months or less, that time shall
be disregarded in determining, for the purposes of
paragraph (a) of subsection (1) of section eighty-seven
whether the petitioner finds it intolerable to live with the
respondent.
Unreasonable
behaviour
91.
Where in any proceedings for divorce the
petitioner alleges that the respondent has behaved in
such a way that the petitioner cannot be expected to live
with the respondent, but the parties to the marriage have
lived with each other for a period or periods not exceeding
59
six months after the date of the occurrence of the final
incident relied on by the petitioner and held by the court
to support the petitioner’s allegation, that fact shall be
disregarded in determining for the purposes of paragraph
(b) of subsection (1) of section eighty-seven whether the
petitioner cannot reasonably be expected to live with the
respondent.
Constructive
desertion
92.
(1)
A
married
person
whose
conduct
constitutes just cause or excuse for the other party to the
marriage to live separately or apart and occasions that
other party to live separately or apart shall be deemed to
have wilfully deserted that other party without just cause
or excuse, notwithstanding that the person may not in
fact have intended the conduct to occasion that other
party to live separately or apart.
(2)
For
the
purposes
of
paragraph
(c)
of
subsection (1) of section eighty-seven, the court may treat
a period of desertion as having continued at the time
when the deserting party was incapable of continuing the
necessary intention, due to mental illness or otherwise, if
the evidence before the court is such that had that party
not been so incapable, the court would have inferred that
the respondent’s desertion continued at that time.
(3)
A spouse may bring an action for damages
against a person who has, for any reason, enticed or
induced the other spouse to desert the matrimonial home.
(4)
An action under subsection (3) shall be
dismissed if the court is satisfied that the conduct of the
plaintiff has been such as to justify or excuse the
respondent leaving the matrimonial home.
60
Refusal to resume
cohabitation
93.
(1)
Where a husband and wife are parties
to an agreement for separation, whether oral, in writing or
constituted by conduct, the refusal by one of them,
without reasonable justification, to comply with the other
party’s
bona
fide
request
to
resume
cohabitation
constitutes, from the date of the refusal, wilful desertion
without just cause or excuse on the part of the party so
refusing.
(2)
For
the
purposes
of
subsection
(1),
“reasonable justification” means reasonable justification
in all the circumstances, including the conduct of the
other party to the marriage since the marriage, whether
that conduct took place before or after the agreement for
separation.
Consent in two
year separation
94.
Where
pursuant
to
paragraph
(d)
of
subsection (1) of section eighty-seven the petitioner
alleges that the respondent consents to a decree being
granted,
the
respondent
shall
be
given
sufficient
information to enable the respondent to understand the
consequences to the respondent of the respondent’s
consenting to a decree being granted and the steps which
the respondent must take to indicate that the respondent
consents to the grant of a decree.
Meaning of
separation
95.
(1)
For purposes of paragraphs (d) and (e)
of subsection (1) of section eighty-seven, the parties to a
marriage may be held to have separated notwithstanding
that the cohabitation was brought to an end by the action
or conduct of only one of the parties.
(2)
A decree of dissolution of marriage may be
made upon the fact specified in paragraph (e) of
61
subsection (1) of section eighty-seven notwithstanding
that there was in existence at any relevant time(a)
a decree or order of a court suspending
the obligation of the parties to the
marriage to cohabit; or
(b)
an agreement between the parties for
separation.
Refusal of decree in
five year cases on
ground of grave
hardship to
respondent
96.
(1)
The respondent to a petition for divorce
in which the petitioner alleges five years separation may
oppose the grant of a decree on the ground that the
dissolution of the marriage will result in grave financial or
other hardship to the respondent and that it would in all
the circumstances be wrong to dissolve the marriage.
(2)
Where the grant of a decree is opposed under
this section and the court finds that (a)
the petitioner is entitled to rely in
support of the respondent’s petition on
the fact of five years’ separation and
does
not
rely
on
any
other
fact
mentioned in subsection (1) of section
eighty-seven; and
(b)
apart from this section the court would
grant a decree on the petition;
the court shall consider all the circumstances, including
the conduct of the parties to the marriage and the
interests of those parties and of any children or other
persons concerned, and shall dismiss the petition if it
determines that the dissolution of the marriage will result
in grave financial or other hardship to the respondent and
that it would in all the circumstances be wrong to dissolve
the marriage.
62
(3)
For the purposes of this section, “hardship”
includes the loss of the chance of acquiring any benefit
which the respondent might acquire if the marriage were
not dissolved.
Effect of
resumption of
cohabitation
97.
(1)
For the purposes of proceedings for a
decree of dissolution of marriage, in calculating any
period for which the parties have been living separately
and apart and in considering whether such period has
been continuous, no account shall be taken of any period
not exceeding six months during which the parties
resumed cohabitation with a view to reconciliation.
(2)
For the purpose of subsection (1), a period of
cohabitation shall be deemed to have continued during an
interruption of the cohabitation that, in the opinion of the
court, was not substantial.
Grant of decree of
dissolution of
marriage
98.
(1)
The court shall, where it is satisfied on
the evidence of any fact mentioned in section eighty-seven
that the marriage has broken down irretrievably, grant a
decree of dissolution of marriage.
(2)
A decree of dissolution of marriage shall not
be made if the court is satisfied that there is a reasonable
likelihood of cohabitation being resumed.
Collusion
99.
The court may refuse to make a decree of
dissolution of marriage if the petitioner, in bringing or
prosecuting the proceedings, has been guilty of collusion.
Discretionary bars
100. The court may refuse to make a decree of
dissolution of marriage upon the ground specified in
section ninety-nine if since the marriage-
63
(a)
the petitioner has committed adultery
that has not been condoned by the
respondent
or
having
been
so
condoned, has been revived;
(b)
the petitioner has been guilty of cruelty
to the respondent;
(c)
the petitioner has wilfully deserted the
respondent before the happening of the
matters constituting the ground relied
upon by the petitioner or where that
ground
involves
matters
occurring
during or extending over a period,
before the expiration of that period; or
(d)
the habits of the petitioner have, or the
conduct of the petitioner has, conduced
or contributed to the existence of the
ground relied upon by the petitioner.
Restriction on
dissolution of
marriage
101. Where a petition for a decree of nullity of any
marriage is before the court, the court shall not make a
decree of dissolution of that marriage unless it dismisses
the petition for a decree of nullity of that marriage.
Relief for
respondent in
divorce
proceedings
102. If
in
any
proceedings
for
divorce
the
respondent alleges and proves any of the facts referred to
in paragraphs (a) to (e) of subsection (1) of section eightyseven, treating the respondent as the petitioner and the
petitioner as the respondent for the purposes of that
subsection, the court may give to the respondent the relief
to which the respondent would have been entitled if the
respondent had presented a petition seeking that relief.
64
Proceedings for
decree of
presumption of
death and
dissolution of
marriage
103. (1)
A spouse who alleges that reasonable
grounds exist for supposing that the other spouse is dead
may present a petition to the court to have it presumed
that the other spouse is dead and to have the marriage
dissolved, and the court may, if satisfied that such
reasonable grounds exist, make a decree of presumption
of death and dissolution of the marriage.
(2)
In proceedings referred to in subsection (1)
the fact that for a period of seven years or upwards the
other party to the marriage has been continually absent
from the petitioner and the petitioner has no reason to
believe that the party has been living within that time
shall be evidence that the party is dead until the contrary
is proved.
(3)
Sections one hundred and twenty-one to one
hundred and twenty-nine shall apply to a decree under
this section as it applies to a decree of dissolution of
marriage.
Reconciliation
104. (1)
The court shall, where proceedings for
divorce have been instituted by a party to a marriage,
require the advocate for the petitioner to certify whether
the advocate has discussed with the petitioner the
possibility of reconciliation and given the petitioner the
names and addresses of persons qualified to help effect a
reconciliation between parties to a marriage who have
become estranged.
(2)
Where it appears to the court at any time in
any proceedings from the evidence or the attitude of the
parties, or of either of them, that there is a reasonable
possibility of a reconciliation between the parties to the
marriage, the court may-
65
(a)
adjourn the proceedings for such period
as it thinks fit to afford the parties an
opportunity to consider a reconciliation
and to enable attempts to be made to
effect the reconciliation; or
(b)
interview the parties in chambers with
or without the advocate, as the court
thinks proper, with a view to effecting a
reconciliation.
(3)
The court shall resume the hearing where not
less than fourteen days after an adjournment under
paragraph (a) of subsection (2) has taken place, either of
the parties to the marriage requests that the hearing
should proceed.
(4)
The
power
conferred
on
the
court
by
subsection (2) is additional to any other power of the
court to adjourn proceedings.
Statements made
in attempt to effect
reconciliation
105. Evidence of anything said or of an admission
made
in
the
course
of
an
endeavour
to
effect
reconciliation under this Part is not admissible in any
court.
Annulment of Marriage
Grounds for
annulment of
marriage
106. (1)
A party to a marriage may petition the
court to annul the marriage on the ground that (a)
the
marriage
has
not
been
consummated since its celebration;
(b)
at the time of the marriage and without
the knowledge of either party, the
parties were in a prohibited marriage
relationship;
66
(c)
in the case of a monogamous marriage,
one of the parties was married to
another person at the time of the
marriage;
(d)
the petitioner’s consent was not freely
given;
(e)
either of the parties was under the age
of eighteen;
(f)
the parties have not complied with the
requirements of the Act with respect to
the solemnisation of the marriage;
(g)
the parties to the marriage are of the
same sex;
(h)
a party to the marriage was absent at
the time of the celebration of the
marriage;
(i)
at the time of the marriage and without
the knowledge of the husband, the wife
is pregnant and that the husband is
not responsible for the pregnancy; or
(j)
at the time of the marriage and without
the knowledge of the petitioner, the
other party suffers recurrent bouts of
insanity.
(2)
The court shall grant a decree of annulment if
(a)
the petition is made within one year of
the celebration of the marriage; and
(b)
at
the
date
of
the
marriage
and
regarding paragraphs (b) and (c) of
subsection
(l),
the
petitioner
was
ignorant of the facts alleged in the
petition.
67
(3)
Nothing in this section shall be construed as
validating any marriage which is by law void but with
respect to which a decree of nullity has not been granted.
Petition for
annulment of
marriage
107. (1)
A petition for the annulment of a
marriage may be presented only by one of the parties.
(2)
Where a petitioner alleges facts of which only
one party to a marriage was ignorant at the date of the
marriage, the petition shall be presented only by that
party.
(3)
Where a petitioner alleges the wilful refusal of
one party to consummate the marriage, the petition shall
not be presented by the party against whom the allegation
is made.
Bars to relief where
marriage is voidable
108.
(1) The court shall not grant a decree of
nullity on the ground that a marriage is voidable if the
respondent satisfies the court(a)
that the petitioner, with knowledge that
it was open to the petitioner to have the
marriage avoided, conducted oneself in
relation to the respondent as to lead the
respondent reasonably to believe that
the petitioner would not seek to do so;
and
(b)
that
it
would
be
unjust
for
the
respondent to grant the decree.
(2)
Notwithstanding subsection (1), the court
shall not grant a decree of nullity under section one
hundred and six on the grounds specified in paragraphs
(c), (d), (e) or (i) of subsection (1) of that section unless it is
satisfied that proceedings were instituted within two years
from the date of the marriage.
68
(3)
Notwithstanding subsection (1) and (2), the
court shall not grant a decree of nullity under section one
hundred and six on the grounds specified in paragraph (e)
or (i) of subsection (1) of that section unless it is satisfied
that the petitioner was at the time of the marriage
ignorant of the facts alleged.
Incapacity to
consummate
marriage
109.
A decree of nullity of marriage shall not be
made on the ground that the marriage is voidable under
paragraph (a) of subsection (1) of section one hundred
and six unless the court is satisfied that the incapacity to
consummate the marriage also existed at the time when
the hearing of the petition commenced and that(a)
the incapacity is not curable;
(b)
the respondent refuses to submit to
such medical examination as the court
considers necessary for the purpose of
determining whether the incapacity is
curable; or
(c)
the respondent refuses to submit to
proper treatment for the purpose of
curing the incapacity.
Application of
sections 120 and 122
to nullity proceedings
110. Sections one hundred and twenty and one
hundred and twenty-two shall apply in relation to
proceedings for nullity of marriage as if for any reference
in those provisions to divorce there were substituted a
reference to nullity of marriage.
Effect of decree of
nullity of
voidable marriage
111. (1) A decree of nullity granted in respect of a
voidable marriage shall operate to annul the marriage
only as respects any time after the decree has been made
absolute, and the marriage shall, notwithstanding the
decree, be treated as if it had existed up to that time.
69
(2)
Without
prejudice
to
the
operation
of
subsection (1), a decree of annulment shall not –
(a)
render illegitimate a child of the parties
born since, or legitimated during, the
marriage;
(b)
render lawful anything which was done
unlawfully
during
the
marriage
or
render unlawful anything which was
done lawfully during the marriage;
(c)
affect the competence of either of the
parties as a witness in respect of
anything done or omitted to be done
during the marriage;
(d)
affect
any
privilege
in
respect
of
communications between the parties
during the marriage; or
(e)
relieve either party of any debt properly
incurred on behalf of the other during
the marriage.
Registration of
decree of
annulment and
divorce
112. (1)
The court shall, where it grants a
decree of the annulment of a marriage or the dissolution
of a marriage, deliver a certified copy of the decree to the
Registrar-General and the Registrar-General shall register
the annulment or dissolution of the marriage in the
Register of Marriages.
(2)
Where a marriage celebrated in Zambia is
annulled or dissolved by a decree of a foreign court, any
party to the annulled or dissolved marriage may apply to
the Registrar-General to register the decree granted by the
foreign court.
(3)
An
application
under
this
section
shall
include70
(a)
a copy of the decree, and where the
decree is not in an official language, a
certified translation of the decree in an
official language and in the prescribed
form; and
(b)
a declaration under the law of the
country
in
which
the
decree
was
obtained made to a legal practitioner
authorised to witness the declaration
that states that the decree is effective in
that country as if the marriage had
been celebrated in that country.
(4)
Where the Registrar-General is satisfied that
a decree made pursuant to subsection (2) would be
recognised in Zambia as if the decree was made by a
Zambian court, the Registrar-General shall register the
decree in the Register of Marriages.
Recognition of
foreign
annulments and
divorces
113.
(1)
A dissolution or annulment of marriage
effected in accordance with the law of a foreign country
shall be recognised as valid in Zambia where, at the date
of the institution of the proceedings that resulted in the
dissolution or annulment of marriage, the party at whose
instance the dissolution or annulment was effected, or if it
was effected at the instance of both parties, either of those
parties was(a)
in the case of the dissolution of a
marriage
or
the
annulment
of
a
voidable marriage, domiciled in that
foreign country; or
(b)
in the case of the annulment of a void
marriage, domiciled or resident in that
foreign country.
71
(2)
For the purposes of subsection (1)(a)
where a dissolution of a marriage was
effected in accordance with the law of a
foreign country at the instance of a
deserted wife who was domiciled in that
foreign
country
either
immediately
before her marriage or immediately
before
the
desertion,
she
shall
be
deemed to have been domiciled in that
foreign country at the date of the
institution
of
the
proceedings
that
resulted in the dissolution; and
(b)
a wife who, at the date of the institution
of the proceedings that resulted in a
dissolution
or
annulment
of
her
marriage in accordance with the law of
a foreign country, was resident in that
foreign
country,
and
had
been
so
resident for a period of three years
immediately preceding that date shall
be deemed to have been domiciled in
that foreign country at that date.
(3)
A dissolution or annulment of a marriage
effected in accordance with the law of a foreign country,
not being a dissolution or annulment to which subsection
(2) applies, shall be recognised as valid in Zambia if its
validity would have been recognised under the law of the
foreign country in which, in the case of a dissolution, the
parties were domiciled at the date of the dissolution or in
which, in the case of an annulment, either party was
domiciled at the date of annulment.
(4)
Any dissolution or annulment of a marriage
that would be recognised as valid under the common law
72
rules of private international law but to which none of the
provisions of this section applies shall be recognised as
valid in Zambia and the operation of this subsection shall
not be limited by any implication from those provisions.
(5)
For the purposes of this section, the court, in
considering the validity of a dissolution or annulment
effected under the law of a foreign country, may treat as
proved any facts found by a court of the foreign country
or otherwise established for the purposes of the law of the
foreign country.
(6)
A dissolution or annulment of a marriage
shall not be recognised as valid by virtue of subsection (1)
or (3) where, under the common law rules of private
international law, recognition of its validity would be
refused on the ground that a party to the marriage had
been denied natural justice.
Judicial Separation
Ground for
judicial
separation
114.
(1)
A petition for judicial separation may be
presented to the court by a party to a marriage on the
ground that one or more of the facts specified in
paragraphs (a) to (e) of subsection (1) of section eightyseven exists and the provisions of section eighty-eight
shall apply for the purposes of a petition for judicial
separation alleging any such fact, as they apply in
relation to a petition for divorce alleging that fact.
(2)
The court hearing a petition for judicial
separation shall inquire, so far as it reasonably can, into
the facts alleged by the petitioner and into any facts
alleged by the respondent, but shall not be concerned to
consider
whether
the
marriage
has
broken
down
irretrievably.
73
(3)
Subject to section one hundred and nineteen,
if the court is satisfied on the evidence adduced by the
petitioner in support of any fact referred to in paragraphs
(a) to (e) of subsection
(1) of section
eighty-seven, the
court shall grant a decree of judicial separation.
(4)
Sections
hundred and five
one hundred and four
shall
apply for
and one
the purpose of
encouraging the reconciliation of parties to proceedings
for judicial separation
and of enabling the parties to a
marriage to refer to the court for its opinion an agreement
or arrangement relevant to
proceedings for
actual or contemplated
judicial separation, as they apply to
proceedings for divorce.
Effect of judicial
separation
115.
A decree of judicial separation relieves the
petitioner from the obligation to cohabit with the other
party to the marriage while the decree remains in
operation, but except as provided by this Part, does not
otherwise affect the marriage or the status, rights and
obligations of the parties to the marriage.
Effect of judicial
separation on
devolution of
property
116.
(1)
Where a party to a marriage dies
intestate as to any property while a decree of judicial
separation is in operation, that property shall devolve as if
that party had survived the other party to the marriage.
(2)
Where upon, or in consequence of, the making
of a decree of judicial separation a husband is ordered to
pay maintenance to his wife and the maintenance is not
duly paid, the husband is liable for necessaries supplied
for the wife’s use.
Exercise of joint
powers not affected
117. Nothing in this Part prevents a wife, during
separation under a decree of judicial separation from
74
joining in the exercise of any power given to herself and
her husband jointly.
Effect of decree of
judicial separation on
subsequent proceedings
for dissolution of
marriage
118.
(1)
A decree of judicial separation does not
prevent the institution by either party to the marriage of
proceedings for a decree of dissolution of marriage.
(2)
The court may, in any proceedings for a
decree of dissolution of marriage on the same, or
substantially the same, facts as those on which a decree
of judicial separation has been made, treat the decree of
judicial separation
as sufficient
proof of the facts
constituting the ground on which that decree was made.
(3)
Notwithstanding subsection (2), the court shall
not grant a decree of dissolution of marriage without
considering evidence given by the petitioner in support of
the petition.
Discharge of
decree on
resumption of
cohabitation
119.
Where the parties voluntarily resume
cohabitation after a decree of judicial separation has been
made, either party may apply for an order to discharge
the decree.
Decree Nisi and Decree Absolute
Decree nisi in first
instance
120. A decree of dissolution of marriage or nullity
of marriage of a voidable marriage under this Act shall, in
the first instance, be a decree nisi.
Decree absolute
where children
under twenty-one
years of age
121. (1)
A
decree
nisi
of
dissolution
of
a
marriage or of nullity of a voidable marriage shall not
become absolute unless the court, by order, has declared
that it is satisfied that -
75
(a)
there are no children of the family in
relation to whom this section applies;
or
(b)
the only children of the family in
relation to whom this section applies
are the children specified in the order
and that(i)
proper arrangements in all the
circumstances have been made
for
the
welfare
appropriate,
and,
where
education
or
advancement of those children;
or
(ii)
there are special circumstances
by reason of which the decree
nisi
should
become
absolute
notwithstanding that the court is
not
satisfied
that
such
arrangements have been made.
(2)
In this section, “children of the family”
means(a)
the children of the family who are
under the age of twenty-one years at
the date of the decree nisi; and
(b)
any children of the family in relation to
whom the court has, in pursuance of
subsection (3), ordered that this section
shall apply.
(3)
The court may, where it determines that there
are special circumstances which justify its doing so, order
that this section shall apply in relation to a child of the
marriage who has attained the age of twenty-one years at
the date of the decree nisi.
76
When decree nisi
becomes absolute
122. (1)
Subject to this section, a decree nisi
becomes absolute at the expiration of a period of six
weeks from the making of the decree.
(2)
Either party to the marriage may apply to the
court for a decree nisi to be made absolute.
(3)
Where an appeal is instituted before a decree
nisi has become absolute the decree nisi, unless reversed
or rescinded, becomes absolute by force of this section(a)
at the expiration of a period of twentyeight days from the day on which the
appeal is determined or discontinued;
or
(b)
on the day on which the decree would
have become absolute under subsection
(1) if no appeal had been instituted,
whichever is the later.
(4)
A decree nisi shall not become absolute by
force of this section where either of the parties to the
marriage has died.
(5)
In this section, “appeal” in relation to a decree
nisi means(a)
an appeal, application for leave to
appeal against or an intervention or an
application
for
leave
to
intervene
relating to(i)
the decree nisi; or
(ii)
an
order
hundred
under
and
section
twenty-one
one
in
relation to the proceedings in
which the decree nisi was made;
or
77
(b)
an
application
under
sections
one
hundred and twenty-five, one hundred
and twenty-six or one hundred and
twenty-seven
for
rescission
of
the
decree or an appeal or application for
leave to appeal arising out of the
application.
(6)
For the purposes of this section, where an
application for leave to appeal or to intervene or for a
rehearing is granted, the application shall be deemed not
to have been determined or discontinued if(a)
the leave granted remains capable of
being exercised; or
(b)
an appeal, intervention or rehearing
instituted in pursuance of the leave is
pending.
Certificate of
decree absolute
123. (1)
Where a decree nisi becomes absolute,
a memorandum of the fact and the date on which the
decree became absolute shall be prepared and filed by the
Registrar of the High Court.
(2)
Where a decree nisi has become absolute, the
Registrar of the High Court shall, on payment of the
appropriate fee, issue to the person applying for the
decree absolute a certificate that the decree has become
absolute.
(3)
A certificate given under subsection (2) is in
all courts and for all purposes evidence of the matters
specified in the certificate.
Proceedings after
decree nisi
124. (1)
Subject to section one hundred and
seventy, where a decree of dissolution of marriage has
been made but has not become absolute, a person who is
78
not a party to the proceedings may show cause why the
decree should not be made absolute on account of
material facts not having been brought before the court,
and the court may(a)
rescind the decree;
(b)
require further inquiry; or
(c)
otherwise deal with the case as it
thinks fit.
(2)
Where a decree of divorce has been granted
and no application for it to be made absolute has been
made by the party to whom it was granted, the party
against whom it was granted may apply to the court, at
any time after the expiration of three months from the
earliest date on which that party could have made the
application, for the decree nisi to be made absolute.
(3) On an application under subsection (2), the
court may exercise any of the powers mentioned in
paragraphs (a) to (c) of subsection (1).
Rescission of decree
nisi where parties
reconciled
125.
Notwithstanding anything contained in this
Part, where a decree nisi has been made in proceedings
for a decree of dissolution of marriage, the court may, at
any time before the decree becomes absolute, upon the
application of either of the parties to the marriage, rescind
the decree if the court is satisfied that the parties have
become reconciled.
Rescission of
decree nisi on
ground of
miscarriage of
justice
126. (1)
Where a decree nisi has been made but
has not become absolute, the court may, on the
application of a party to the proceedings or on the
intervention of the Attorney-General, if it is satisfied that
there has been a miscarriage of justice by reason of fraud,
perjury,
suppression
of
evidence
or
any
other
79
circumstances, rescind the decree and order the rehearing
of the proceedings.
(2)
The court may, where a decree nisi has been
made but has not become absolute, on the application of
any person who is not a party to the proceedings, if it is
satisfied that there has been a miscarriage of justice by
reason of fraud, perjury, suppression of evidence or any
other circumstances, rescind the decree and order that
the proceedings be reheard.
Rescission of
decree where
consent in relation
to two years’
separation
obtained by
misrepresentation
127. Where a decree has been made but not
become absolute in any case where the petitioner in
support of the petitioner’s petition relied only on the fact
of two years’ separation coupled with the respondent’s
consent to a decree being granted and no other fact, the
court may, on an application made by the respondent at
anytime before the decree is made absolute, rescind the
decree if it is satisfied that the petitioner misled the
respondent, whether intentionally or unintentionally,
about any matter which the respondent took into account
in deciding to consent.
Re-marriage of party to
dissolved marriage
128.
Where a decree of dissolution of marriage
becomes absolute, a party to the marriage may marry
again as if the marriage had been dissolved by death.
Prohibition of
appeal after
decree absolute
129.
An appeal does not lie from a decree of
dissolution of marriage or nullity of a voidable marriage
after the decree has become absolute.
80
PART XI
MAINTENANCE OF SPOUSE AND OTHER RELIEF
Definition of
marriage
Order concerning
custody and
maintenance of
children
Act No. of 2014
Commencement of
proceedings for
ancillary relief
130. In this Part, “marriage” includes a purported
marriage that is void or has been declared to be such.
131. The custody and maintenance of children
shall be dealt with in accordance with the Childrens’ Code
Act, 2014.
132. (1)
Subject to subsection (2) and to the
rules of court, where a petition for divorce, nullity of
marriage or judicial separation has been presented,
proceedings for maintenance pending suit under section
one hundred and thirty-three, for a financial provision
order under section one hundred and thirty-seven or for a
property adjustment order under section one hundred
and thirty-nine may be begun at any time after the
presentation of the petition.
(2)
Rules of court may provide that(a)
applications
for
any
relief
under
subsection (1) shall be made in the
petition or answer; and
(b)
applications for any relief which are not
made by petition or answer, or which
are not made until after the expiration
of
such
period
following
the
presentation of the petition or filing of
the answer as may be prescribed, shall
be made only with the leave of the
court.
81
Maintenance
pending suit
133. (1)
On a petition for divorce, nullity of
marriage or judicial separation, the court may make an
order for maintenance pending suit.
(2)
An order made under subsection (1) may
require either party to the marriage to make to the other
party
such
periodical
payments
for
that
party’s
maintenance and for such periods, beginning not earlier
than the date of the presentation of the petition and
ending on the date of the determination of the suit, as the
court thinks reasonable.
Grounds for
maintenance
order
134.
(1)
The court may order a person to pay
maintenance to a spouse or former spouse (a)
if the person has refused or neglected to
provide for the spouse or former spouse as
required by this Act;
(b)
if the person has deserted the other spouse or
former spouse, for as long as the desertion
continues;
(c)
during
the
course
of
any
matrimonial
proceedings, before the grant of a decree;
(d)
where any proceedings are dismissed after
the beginning of the trial, either immediately
or within such reasonable period after the
dismissal;
(e)
when granting or after granting a decree of
nullity of marriage, judicial separation or
divorce; or
(f)
if, after making a decree of presumption of
death, the spouse or former spouse is found
to be alive.
82
(2)
for
A party to a marriage may apply to the court
a maintenance order on the ground that the
respondent(a)
being
the
husband,
neglected
to
has
provide
wilfully
reasonable
maintenance for the applicant; or
(b)
being the wife, has wilfully neglected to
provide
or
to
contribution
make
a
towards
proper
reasonable
maintenance for the applicant where,
by reason of the impairment of the
applicant’s earning capacity through
age, illness or disability of mind or
body, having regard to any resources of
the applicant and the respondent which
are
or
available
should
for
properly
the
be
made
purpose,
it
is
reasonable in all the circumstances to
expect the respondent to provide or
make a proper contribution.
(3)
The court shall not entertain an application
under this section unless it would have jurisdiction to
entertain
proceedings
by
the
applicant
for
judicial
separation.
Interim
maintenance order
135. Where on an application under this Part it
appears to the court that the applicant is in immediate
need of financial assistance, but it is not yet possible to
determine what order, if any, should be made on the
application, the court may make an interim order for
maintenance requiring the respondent to make to the
applicant, until the determination of the application, such
periodical payments as the court thinks reasonable.
83
Matters for
consideration by
court in maintenance
proceedings
136. (1)
Subject
to
the
provisions
of
this
section, the court may, in any matter in which application
is made for the maintenance of a party to a marriage,
other than proceedings for an order for maintenance
pending the disposal of proceedings, have regard to the
following matters:
(a)
the income, earning capacity and other
financial resources which each of the
parties to the marriage has or is likely
to have in the foreseeable future;
(b)
the financial needs, obligations and
responsibilities
which
each
of
the
parties to the marriage has or is likely
to have in the foreseeable future;
(c)
the standard of living enjoyed by the
family before the breakdown of the
marriage;
(d)
the age of each party to the marriage
and the duration of the marriage;
(e)
any physical or mental disability of
either of the parties to the marriage;
(f)
the contributions made by each of the
parties to the welfare of the family,
including any contribution made by
looking after the home or caring for the
family; and
(g)
in the case of proceedings for divorce
or nullity of marriage, the value to
either of the parties to the marriage of
any benefit, such as a pension, which
as
a
result
of
the
dissolution
or
84
annulment of the marriage, that party
will lose the chance of acquiring.
(2)
The court shall, in determining the amount of
the maintenance to be paid by a spouse to the other
spouse or former spouse, base its assessment primarily
on the means and needs of the parties and shall have
regard to the degree of responsibility which the court
apportions to each party for the breakdown of the
marriage.
(3)
The court shall, in making an order under
subsection (1), seek to place the parties, so far as it is
practicable and just to do so, in the financial position in
which they would have been if the marriage had not
broken down and each had properly discharged their
financial obligations and responsibilities towards the
other.
Maintenance order
137. (1)
The court may, where an applicant
satisfies the court on any ground specified under section
one hundred and thirty-four, make one or more of the
following orders:
(a)
an order directing the respondent to
make such periodical payments to the
applicant for such period as the court
may specify in the order;
(b)
an order directing the respondent to
secure to the applicant such periodical
payments for such period as the court
may specify in the order; or
(c)
an order directing the respondent to
pay to the applicant such lump sum as
the court may specify in the order.
85
(2)
Without
prejudice
to
paragraph
(c)
of
subsection (1), an order under this section for the
payment of a lump sum may (a)
be made for the purpose of enabling the
meeting of any liabilities or expenses
reasonably incurred in maintaining the
applicant
relates
to
whom
before
the
the
application
making
of
the
application; and
(b)
provide for the payment of the lump
sum by instalments of such amount as
may be specified in the order and may
require the payment of the instalments
to be secured to the satisfaction of the
court.
(3)
The
court
may
order
the
payment
of
maintenance to a spouse or former spouse where a decree
of separation, divorce or presumption of death is issued
by a foreign court and the court may declare that the
decree of separation, divorce or presumption of death is
effective for the purposes of this section.
(4)
Where an order is made under paragraph (a),
(b) or (c) of subsection (1) on or after the granting of a
decree of divorce or nullity of marriage, the order or any
settlement made in pursuance of the order shall not take
effect unless the decree is made absolute.
Duration of periodical
payment orders for
spouse
138. (1)
The
court
shall,
in
an
order
for
periodical payments or secured periodical payments order
made in favour of a spouse, specify the term of the order
as the court thinks fit, subject to the following:
(a)
in the case of a periodical payments
order, the term shall begin not earlier
86
than the date of the making of an
application for the order and shall be so
defined as not to extend beyond the
death of either of the parties to the
marriage or where the order is made on
or after the grant of a decree of divorce
or nullity of marriage, the remarriage of
the party in whose favour the order is
made; and
(b)
in the case of a secured periodical
payments order, the term shall begin
not earlier than the date of the making
of an application for the order, and
shall be so defined as not to extend
beyond the death or, where the order is
made on or after the grant of the
decree, the re-marriage of the party in
whose favour the order is made.
(2)
Where a periodical payments or secured
periodical payments order in favour of a party to a
marriage is made otherwise than on or after the grant of a
decree of divorce or nullity of marriage, and the marriage
in question is subsequently dissolved or annulled but the
order continues in force, the order shall, despite anything
in it, cease to have effect on the re-marriage of that party,
except in relation to any arrears due under it on the date
of the re-marriage.
(3)
If after the grant of a decree dissolving or
annulling a marriage either party to that marriage remarries, that party shall not be entitled to apply, by
reference to the grant of that decree, for a financial
provision order in the party’s favour, or for a property
87
adjustment order, against the other party to that
marriage.
Property adjustment
orders in connection
with divorce
proceedings
139. (1)
Subject to Part XII, the court may,
upon granting a decree of divorce, nullity of marriage or
judicial separation or at any time thereafter, make any
one or more of the following orders:
(a)
an order that a party to the marriage
shall transfer to the other party, or to
such person as the court may specify in
the order, such property as may be
specified in the order, being property to
which
the
entitled,
first-mentioned
either
in
party
possession
is
or
reversion;
(b)
an
order
that
settlement
of
such
property as may be specified, being
property to which a party to a marriage
is entitled, be made to the satisfaction
of the court for the benefit of the other
party to the marriage;
(c)
an order varying, for the benefit of the
parties to the marriage or either or any
of them, an ante-nuptial settlement,
including a settlement made by will or
codicil, made by the parties to the
marriage; or
(d)
an order extinguishing or reducing the
interest of either of the parties to the
marriage under the settlement.
(2)
The
court
may
make
an
order
under
paragraph (c) of subsection (1) despite that there are no
children of the family.
88
(3)
Where an order is made under section one
hundred and forty on or after granting a decree of divorce
or nullity of marriage, the order or any settlement made in
pursuance of the order shall not take effect unless the
decree is made absolute.
Preparation of
instrument for
securing payments by
order of court
140. (1)
The court may, where it makes an order
requiring any payments to be secured or for the
settlement of property(a)
direct that the matter be referred to a
legal
practitioner
instrument
to
to
be
draw
executed
up
by
the
all
necessary parties; and
(b)
where the order is to be made on
proceedings
for
divorce,
nullity
of
marriage or judicial separation, defer
the grant of the decree in question until
the instrument has been duly executed.
(2)
The court may make such order as it thinks
just concerning the payment of the costs and expenses of
the preparation of the instrument and its execution.
Prohibition of
assignment or
attachment of
maintenance
141. Maintenance payable to a person under an
order of the court shall not be assigned or transferred or
liable to be attached, sequestrated or levied upon for, or
in respect of, any debt or claim.
Variation and
revocation of
maintenance order
and financial relief
142. (1)
Subject
to
the
provisions
of
this
section, the court may vary, revoke, suspend or revive the
operation of any provision of (a)
an order for maintenance pending suit;
(b)
an interim maintenance order;
(c)
a periodical payments order;
89
(d)
a secured periodical payments order;
(e)
an order made under
section one
hundred thirty-seven for the payment
of a lump sum by instalments; or
(f)
an order for settlement of property or a
variation
of
settlement
of
property
under section one hundred and thirtynine, being an order made on or after
the
grant
of
a
decree
of
judicial
separation.
(2)
The powers exercisable by the court under
this section in relation to an order shall be exercisable in
relation to any instrument executed in pursuance of the
order.
(3)
The court shall not exercise the powers
conferred by this section in relation to an order for a
settlement or for a variation of settlement under section
one hundred and thirty-nine, except on an application
made in proceedings(a)
for the rescission of the decree of
judicial
separation
by
reference
to
which the order was made; and
(b)
for the dissolution of the marriage in
question.
(4)
A property adjustment order shall not be
made on an application for the variation of a periodical
payments order or secured periodical payments order
made in favour of a party to a marriage under section one
hundred and thirty-nine.
(5)
An order for the payment of a lump sum shall
not be made on an application for the variation of a
periodical payments order or secured periodical payments
90
order in favour of a party to a marriage made under one
hundred and thirty-seven or one hundred and thirty-nine.
(6)
Where the person liable to make payments
under a secured periodical payments order dies, an
application under this section relating to that order may
be made by the person entitled to payments under the
order or by the personal representative of the deceased
person, but the application shall not, except with the
permission of the court, be made after the end of a period
of six months from the date on which representation with
regard to the estate of that person is first taken out.
(7)
conferred
The court shall, in exercising the powers
by
this
section,
have
regard
to
all
the
circumstances of the case including any change in any of
the matters to which the court was required to have
regard when making the order to which the application
relates and, where the party against whom that order was
made dies, the changed circumstances resulting in the
person’s death.
(8)
The personal representative of a deceased
person against whom a secured periodical payments order
was made shall not be liable for having distributed any
part of the estate of the deceased after the expiration of
the period of six months referred to in subsection (7) on
the ground that they ought to have taken into account the
possibility that the court might permit an application
under this section to be made after that period by the
person entitled to payments under the order, but this
section shall not prejudice any power to recover any part
of the estate distributed arising by virtue of the making of
an order in pursuance of this section.
(9)
In
considering
the
question
when
representation was first taken out for the purposes of
91
subsection (6), a grant limited to settled land or to trust
property shall be left out of account unless a grant limited
to the remainder of the estate has previously been made
or is made at the same time.
(10)
The court may revoke or vary a subsisting
maintenance order, whether secured or unsecured, if it is
satisfied that the maintenance order was based or
obtained as a result of a misrepresentation or mistake of
fact or that there has been a material change of
circumstances since the maintenance order was made.
Lapse of maintenance
order
143. A maintenance order shall lapse upon the
marriage of the beneficiary of the order or if the person
being maintained is subsequently able to support oneself.
Recovery of
maintenance arrears
144. (1)
prescribed
by
maintenance
Despite any other period of limitation
any
shall
written
be
law,
no
recoverable
instalment
in
of
proceedings
instituted after a period of three years from the date upon
which the instalment accrued.
(2) Subject to subsection (1), arrears of unsecured
maintenance, whether payable by agreement under an
order of the court shall be a civil debt recoverable
summarily or, where they fell due before the making of a
receiving order against the party in default, shall be
provable in subsequent bankruptcy proceedings and
where they fell due before death, shall be a debt from the
estate of the deceased.
(3)
Subject to subsection (1), arrears that are
unsecured maintenance which fell due before the death of
the person entitled shall be a civil debt recoverable
summarily by that person’s legal representative.
92
Unenforceable
payment of arrears
145. (1)
A person shall not be entitled to enforce
through the court the payment of any arrears due under
an order for maintenance pending suit, an interim
maintenance order or any financial provision order
without the leave of court if those arrears became due
more than twelve months before proceedings to enforce
the payment are begun.
(2)
The court hearing an application for the grant
of leave under this section may refuse or grant leave
subject to such restrictions and conditions, including
conditions regarding the allowing of time for payment by
instalments, as the court thinks proper, or may remit the
payment of the arrears or of any part thereof.
(3)
An application for the grant of leave under
this section shall be made in such manner as may be
prescribed by rules of court.
Application for
variation or discharge
of financial provision
order due to changed
circumstances
146. (1)
A person may apply to a court for the
variation or discharge of a periodical payments order, a
secured
periodical
payments
order,
an
order
for
maintenance pending suit or any interim maintenance
order if by reason of (a)
a change in the circumstances of the
person entitled to, or liable to make,
payments under the order since the
order was made; or
(b)
the changed circumstances resulting
from the death of the person liable;
the amount received by the person entitled to payments
under the order in respect of a period after those
circumstances changed or after the death of the person
liable to make payments under the order, exceeds the
amount which that person or the person’s personal
93
representatives should have been required to pay, and the
court may order the respondent to pay to the applicant
such sum, not exceeding the amount of the excess, as it
thinks just.
(2)
An application under this section may be
made by the person liable to make payments under any
order referred to in subsection (1) or the person’s personal
representative and may be made against the person
entitled to payments under the order or the person’s
personal representative.
(3)
An application under this section may be
made for leave to enforce, or the enforcement of, the
payment of arrears under any of the orders referred to in
subsection (1).
(4)
An order under this section for the payment
of any sum may provide for the payment of that sum by
instalments of such amount as may be specified in the
order.
Maintenance
agreement
147. (1)
The parties to a marriage may enter
into a maintenance agreement.
(2)
A maintenance agreement shall not include a
provision purporting to restrict the right of a party to
apply to a court for a financial provision order.
(3)
A maintenance agreement which includes any
provision contrary to subsection (2) is void, except that
any
other
financial
arrangement
contained
in
the
agreement shall be enforceable and shall, unless it is void
or unenforceable for any other reason, be binding on the
parties to the agreement.
Variation of maintenance
agreement by court during
life of parties
148. (1)
Subject to subsection (2), a party to a
maintenance agreement who is domiciled or resident in
94
Zambia may apply to a court for the variation of the
maintenance agreement if (a)
there is a change in the circumstances
relating to any financial arrangement
contained
in
the
maintenance
agreement;
(b)
financial arrangements were omitted
from the maintenance agreement;
(c)
the maintenance agreement does not
contain proper financial arrangements
with respect to any child of the family;
or
(d)
the
variation
is
necessary
for
the
benefit and in the best interest of the
child of the family.
(2)
The
court
may
vary
the
terms
of
a
maintenance agreement between spouses if it is satisfied
that there has been a material change of circumstances
since the maintenance agreement was made despite any
provision to the contrary contained in the agreement.
(3)
A court shall, in varying a maintenance
agreement, take into account the matters mentioned in
subsection (1) of section one hundred and thirty-five and
the agreement shall have effect thereafter as if the
variation made by the court had been made by agreement
between the parties and for valuable consideration.
(4)
A court may vary a maintenance agreement
by –
(a)
revoking the financial arrangements
contained in the agreement;
(b)
inserting provision for the making, or
securing by one of the parties to the
maintenance agreement, of periodical
95
payments for the maintenance of a
child; or
(c)
increasing the rate of the periodical
payments
which
the
agreement
requires to be made or secured by one
of the parties for the maintenance of a
child.
Variation
of
maintenance
agreement by court
after death of party
149. (1)
Where
a
maintenance
agreement
provides for the continuation of payments under the
maintenance agreement after the death of one of the
parties and that party dies domiciled in Zambia, the
surviving party or the personal representative of the
deceased party may, subject to subsections (2) and (3),
apply to court for an order for the variation of the
maintenance agreement.
(2)
An application under this section shall not be
made after a period of six months from the date on which
representation with regard to the estate of the deceased is
first taken out, except with the permission of the court.
(3)
Where a maintenance agreement is varied by
the court on an application made under subsection (1),
the like consequences shall ensue as if the variation had
been made immediately before the death by agreement
between the parties and for valuable consideration.
(4)
The provisions of this section shall not render
the personal representative of the deceased liable for
having distributed any part of the estate of the deceased
after the expiration of the period of six months referred to
in subsection (2) on the ground that they ought to have
taken into account the possibility that the court might
permit an application under this section to be made by
the surviving party after that period, but this subsection
96
shall not prejudice any power to recover any part of the
estate so distributed arising from the making of an order
in pursuance of this section.
(5)
Subsection (9) of section one hundred and
forty-two shall apply for the purposes of subsection (2) as
it applies for the purposes of subsection (6) of section one
hundred and forty-two.
Avoidance of
transactions
intended to prevent
or reduce financial
relief
150. (1)
In this section, “defeating a person’s
claim for financial relief” means –
(a)
preventing financial relief from being
granted to that person or to that person
for the benefit of a child of the family;
(b)
reducing the amount of any financial
relief which might be granted to that
person; or
(c)
frustrating
or
impeding
the
enforcement of a financial provision
order relating to that person.
(2)
Where proceedings for financial relief are
brought by one person against another, a court may, on
the application of the first-mentioned person if it is
satisfied (a)
that the other party to the proceedings
is, with the intention of defeating the
claim for financial relief, about to make
any disposition to transfer out of the
jurisdiction or otherwise deal with any
property, make such order as it thinks
fit for restraining that party from doing
so or otherwise for protecting the claim;
(b)
that the other party has, with the
intention of defeating the claim for
97
financial
relief,
made
a
reviewable
disposition and that if the disposition
were
set
different
aside
financial
financial
relief
relief
or
would
be
granted to the applicant, make an order
setting aside the disposition; or
(c)
where an order has been obtained by
the applicant against the other party
that the other party has, with the
intention of defeating the claim for
financial
relief,
made
a
reviewable
disposition, make an order setting aside
the disposition.
(3)
Where
a
court
makes
an
order
under
paragraph (b) or (c) of subsection (2) setting aside a
disposition, it shall give such consequential directions as
it thinks fit for giving effect to the order, including
directions requiring the making of any payments or the
disposal of any property.
(4)
A disposition made by a party to any
proceedings for financial relief, whether before or after the
commencement of those proceedings, is a reviewable
disposition for purposes of paragraphs (b) and (c) of
subsection
(2),
unless
it
was
made
for
valuable
consideration, other than marriage, to a person who, at
the time of the disposition, acted in relation to it in good
faith and without notice of any intention on the part of
the party to defeat the applicant’s claim for financial
relief.
(5)
Where an application is made under this
section with respect to a disposition which took place less
than three years before the date of the application or with
98
respect to a disposition or other dealing with property
which is about to take place and a court is satisfied(a)
in a case falling within paragraph (a) or
(b)
of
subsection
(2),
that
the
disposition or other dealing would,
apart
from
this
section,
have
the
consequence; or
(b)
in a case falling within paragraph (c) of
subsection (2), that the disposition has
had the consequence;
of defeating the applicant’s claim for financial relief, it
shall be presumed, unless the contrary is shown, that the
person who disposed of or is about to dispose of or deal
with the property did so, or is about to do so, with the
intention of defeating the applicant’s claim for financial
relief.
(6)
In this section, “disposition” includes a sale,
gift, lease, mortgage, conveyance, assurance or gift of
property of any description or other transaction whereby
ownership or possession of the property is transferred or
encumbered,
whether
made
by
an
instrument
or
otherwise, but does not include any provision contained
in a will or codicil or a disposition made from money’s
worth to, or in favour of, a person acting in good faith and
in ignorance of the object for which the disposition is
made.
Orders for repayment
of sums paid after
cessation of order or
re-marriage of party
151. (l)
(a)
Wherea periodical payments order or secured
periodical payments order in favour of
a party to a marriage, in this section
referred to as “ a payments order”, has
99
ceased to have effect by reason of the
remarriage of that party; and
(b)
the person liable to make payments
under the periodical payments order or
the person’s personal representative
made payments in accordance with it in
respect of a period after the date of the
re-marriage in the mistaken belief that
the order was still subsisting;
the person so liable or the person’s personal representative
shall not be entitled to bring proceedings in respect of a
cause
of
action
arising
out
of
the
circumstances
mentioned in paragraphs (a) and (b) against the person
entitled to payments under the order or the person’s
personal representative, but may make an application
against
that
person
or
the
person’s
personal
representative under this section.
(2)
The court may, on an application under this
section order the respondent to pay to the applicant a
sum equal to the amount of the payments made in
respect of the period mentioned in paragraph (b) of
subsection (1) or if it appears to the court that it would be
unjust to make that order, it may order the respondent to
pay to the applicant such lesser sum as it thinks fit or
dismiss the application.
(3)
An application under this section may be
made to the court for leave to enforce, or for the
enforcement of, payment of arrears under the order in
question.
(4)
An order under this section for the payment
of any sum may provide for the payment of that sum by
instalments of such amount as may be specified in the
order.
100
(5)
earnings
The collecting officer under an attachment of
order
made
to
secure
payment
under
a
payments order shall not be liable(a)
for any act done by the collecting officer
in pursuance of the payments order
after the date on which that order
ceased to have effect by reason of the
re-marriage of the person entitled to
payments under it; or
(b)
for any act done by the collecting officer
after that date in accordance with any
law or rule of court specifying how
payments made to the collecting officer
in compliance with the attachment of
earnings order are to be dealt with, if
the act was one which the collecting
officer would have been under a duty to
do had the payments order not ceased
to have effect and the act was done
before notice, in writing, of the fact that
the person so entitled had re-married
was given to the officer by or on behalf
of that person, the person liable to
make payment under the payments
order or the personal representatives of
either of those persons.
(6)
In this section, “collection officer” in relation
to an attachment of earnings order, means the officer of
the court to whom a person makes payments in
compliance with the order.
Payment under
order made in favour
of person suffering
from mental disorder
152. Where the court makes an order under this
Part requiring payments, including a lump sum payment
101
to be made, or property to be transferred, to a party to a
marriage and the court is satisfied that the person in
whose favour the order is made is incapable, by reason of
mental disorder within the meaning of the Mental
Disorders
Act,
of
managing
and
administering
the
person’s property and affairs, the court may, subject to
any order, direction or authority made or given in relation
to that person under that Act, order the payment to be
made or the property to be transferred to such persons
having charge of that person as the court may direct.
Enforcement of
maintenance orders
153. (1)
A
person
in
whose
favour
a
maintenance order was made pursuant to this Part may
apply to the court for the enforcement of the order if the
defendant against whom the order was made fails to
comply with any provision contained in the maintenance
order or defaults in any payment specified by the order,
for the recovery of any arrears with regard to any financial
provision stipulated in the maintenance order.
(2)
Unless otherwise directed by the court, notice
of proceedings under this section shall be served on the
defendant who may be summoned or arrested on a
warrant issued by the court.
(3)
The court may, prior to the making of an
order under this section, hold an inquiry to determine the
means of the defendant, who shall be present at the
inquiry.
(4)
A court may, on an application under this
section, direct that –
(a)
an inquiry be made to determine the
means of the respondent by such
person as the court may direct;
102
(b)
the defendant’s income, assets and
liabilities be searched to establish such
information as the court may require to
make an order under this section; or
(c)
a
statement
of
means
from
the
defendant’s employer, auditor or such
other person as the court shall direct,
be availed to the court.
(5)
A court may, if it is satisfied that the
defendant has failed to make payment of any financial
provision under a maintenance order –
(a)
order that any arrears in respect of the
maintenance
immediately
monies
or
by
be
paid
instalments,
or
within such other period as may be
specified by the court;
(b)
order the remission of the arrears,
except that the court shall not make an
order for remission without prior notice
to the person or institution in favour of
whom the maintenance order was made
and without allowing them a reasonable
opportunity to make representations;
(c)
issue a warrant for distress on the
defendant’s property immediately or
postpone the issue of the warrant until
such time or on such condition as the
court may direct;
(d)
order the attachment of the defendant’s
earnings,
including
any
pension
payable to the defendant if the court is
satisfied that –
103
(i)
the failure to make payment was
due
to
the
wilful
refusal
or
neglect of the defendant; or
(ii)
the
defendant
is
gainfully
employed or is engaged in some
business
enterprise
or
undertaking or owns property
from which the defendant derives
an income;
(e)
order
the
preservation
detention,
or
attachment,
inspection
of
any
property of the defendant and authorise
such person as the court may direct to
enter upon any land or building in
which the defendant has an interest
whether in the possession or control of
the defendant or not;
(f)
subject to the rights of a bona fide
purchaser for value without notice, set
aside any disposition of any property
belonging to the defendant from which
any income has occurred and on an
application, the court may make orders
for the re-sale of the property to any
person and may direct the proceeds of
that sale to be applied to the settlement
of any arrears of maintenance monies
and
to
the
maintenance
payment
monies
for
of
the
future
child
concerned; or
(g)
restrain by way of an injunction, the
disposition, wastage or damage of any
property belonging to the defendant.
104
(6)
A court shall make an order under paragraph
(c), (d), (e) or (f) of subsection (5) if it is satisfied that –
(a)
the
defendant
has
wilfully
and
deliberately concealed or misled the
court
or
any
person
appointed
or
directed to carry out enquiries under
subsection
(4)
concerning
the
true
nature and extent of the defendant’s
earnings or income; or
(b)
the
defendant,
with
the
intent
to
obstruct or delay the execution of any
order that may be passed against the
defendant under this section or with
the object of reducing the defendant’s
means to provide maintenance (i)
is about to dispose of most or the
whole of the defendant’s property;
(ii)
is about to remove the whole or
any
part
of
the
defendant’s
property from the local limits of
the jurisdiction of the court; or
(iii)
is about to abscond or leave the
local limits of the jurisdiction of
the court.
(7)
A court may issue a warrant committing the
defendant to prison for such period as it may determine if
it is satisfied that –
(a)
the defendant has persistently and
wilfully refused or neglected to make
payment of all or any part of the monies
ordered
to
be
paid
under
a
maintenance order without reasonable
cause;
105
(b)
an order for attachment of earnings
would not be appropriate; and
(c)
it has enquired into the cause of the
default and is satisfied that the default
was due to the defendant’s wilful refusal
or neglect.
(8)
A court may postpone the issuance of a
warrant under subsection (7) on such terms as it may
determine and shall not issue the warrant without further
notice being given to the defendant or the defendant being
present at the hearing.
(9)
A court may vary, modify or discharge any
order made under this section.
Other relief for
spouse
154. (1)
The court may order a party to refrain
from molesting a spouse or former spouse.
(2)
No proceedings may be brought to compel one
spouse to cohabit with the other spouse.
(3)
Where a husband or wife has, without
reasonable grounds, withdrawn from the society or family
of the other, the aggrieved party may make application to
the court for restitution of conjugal rights and the court,
on being satisfied there is no ground why the application
should not be granted, may order restitution of conjugal
rights accordingly.
PART XII
MATRIMONIAL PROPERTY
Application of
Islamic law
155. Persons professing the Islamic faith shall be
governed
by
Islamic
law
in
matters
relating
to
matrimonial property.
106
Equal status of
spouses
156. Notwithstanding any other law, a married
woman has the same right as a married man to (a)
acquire, administer, hold, control, use
and
dispose
of
property,
whether
movable or immovable;
(b)
(c)
Reserved rights
and liabilities
157. (1)
enter into a contract; and
sue and to be sued in her own name.
Subject to subsection (4), the interest of
any person in an immovable or movable property acquired
before a marriage shall not be affected by the marriage.
(2)
Subject to this Act and any agreement to the
contrary, marriage shall not affect the ownership of
property other than matrimonial property to which either
spouse may be entitled, or affect the right of either spouse
to acquire, hold or dispose of the property.
(3)
property,
Any property held by a spouse as trust
including
property
held
in
trust
under
customary law, whether acquired by way of inheritance or
otherwise, shall not form part of matrimonial property.
(4)
Subsection (1) does not apply where spouses
have, by agreement entered into before or during the
marriage, otherwise determined their property rights.
(5)
The court may, on application by either party
to the marriage, set aside an agreement entered into by
the
parties
under
subsection
(3)
where
the
court
determines that the agreement was influenced by fraud or
coercion or is manifestly unjust.
Ownership of
matrimonial
property
158. (1)
Subject
to
subsection (4) of section
one hundred and fifty-seven, ownership of matrimonial
property shall be deemed to vest in the spouses in equal
shares irrespective of the contribution of either of them
107
towards the acquisition of the property and shall, where
there is no agreement
accordingly
upon
to
the
the
contrary,
occurrence
be
divided
of divorce or
dissolution of the marriage.
(2)
The court may, on application by either party,
make a determination on the matrimonial property rights
of the spouses during the subsistence of the marriage.
Property rights in
polygamous
marriages
159. (1)
The following provisions shall apply in
relation to the determination
by
spouses
upon
of ownership of property
divorce
or
the
dissolution
of
a
polygamous marriage:
(a)
matrimonial property acquired by the
man and the first wife shall be owned
equally by the man and the first wife
only, if the property was acquired
before the man married the second
wife; and
(b)
matrimonial property acquired by the
man after the man marries another wife
shall be regarded as owned equally or
equitably by the man, the first wife and
the second
wife taking into account
any contributions individually made by
any
of
the
principle
wives,
shall
be
and
the
applied
to
same
any
subsequent wife or wives.
(2)
Notwithstanding
paragraph
(b)
of
subsection (1), where it is clear by agreement of the
parties that any wife has her separate matrimonial
property with the husband, that wife shall own that
matrimonial property equally with the husband without
the participation of the other wife or wives.
108
Acquisition of
interest in
property by
contribution
160. Where one spouse acquires property whether
before or during the marriage and the property acquired
during the marriage does not become matrimonial
property, but the other spouse
makes a quantifiable
contribution towards the improvement of the property,
the spouse who makes a contribution shall acquire a
beneficial interest in the property equivalent to the
contribution made.
Spousal Liability
161. (1)
Any liability incurred by a spouse
before marriage and relating to property shall, after
marriage, remain the liability of the spouse who incurred
it.
(2)
Notwithstanding subsection (1), any liability
that was reasonably and justifiably incurred shall, if the
property becomes matrimonial property be equally shared
by the spouses, unless they agree otherwise.
(3)
Any liability incurred during the subsistence
of marriage or reasonable and justifiable expense for the
benefit of the marriage shall be equally shared by the
spouses.
Consideration of
customary law
principles
162. In considering the ownership and division of
property between and among spouses, customary law
principles relating to the communities in question shall,
be taken into account including(a)
the principle of protection of rights of
future generations to community and
customary land; and
(b)
the principles relating to access and
utilisation of ancestral land and the
109
cultural home by a wife or wives or
former wife or wives.
Protection of
interests in
matrimonial
property
163. (1)
No
estate
or
interest
in
any
matrimonial property shall, during the subsistence of
the
marriage
and
without
the
consent
of
both
spouses, be alienated, whether by way of sale, gift, lease,
mortgage or otherwise, and either spouse, or in the case
of a polygamous marriage, the man and any of the wives
shall
be
deemed
to
have
an
interest
in
the
matrimonial property capable of protection by caveat or
Cap. 188
otherwise under the Lands and Deeds Registry Act.
(2)
A spouse shall not be liable during the
subsistence of the marriage to be evicted from the
matrimonial home by or at the instance of the other
spouse except in accordance with an order of a court.
(3)
Subject to subsection (2), a spouse shall not
be liable to be evicted from the matrimonial home by any
person except (a)
on the sale of any estate or interest in
the matrimonial home in execution of a
decree;
(b)
by a trustee in bankruptcy; or
(c)
by a mortgagee or chargee in exercise of
a power of sale or other remedy given
under any law.
(4)
The matrimonial home shall not be mortgaged
or leased without the written and informed consent of
both spouses.
Presumptions on
property acquired
during marriage
164.
Where during the subsistence of a marriage
property is acquired-
110
(a)
in the name of one spouse, there shall
be a rebuttable presumption that the
property is held in trust for the other
spouse; and
(b)
in the names of the spouses jointly,
there shall be a rebuttable presumption
that their beneficial interests in the
property are equal.
Gifts between
spouses
165. Where during the subsistence of a marriage a
spouse gives any property to the other spouse as a gift,
there shall be a rebuttable presumption that the property
thereafter belongs absolutely to the recipient.
Antecedent debts
of spouse
166. A spouse shall not be liable solely by reason
of marriage for any personal debt contracted by the other
spouse prior to their marriage.
Action for
declaration of
rights to property
167. (1)
A person may apply to the court for a
declaration of rights to any property that is contested
between that person and that person’s spouse or former
spouse.
(2)
An application under subsection (1) may (a)
be made as part of a petition in a
matrimonial cause; and
(c)
be brought notwithstanding that no
petition has been brought under any
law relating to matrimonial causes.
(3)
The court may, when granting or subsequent
to the grant of a decree of separation or divorce, order the
division between the parties of any assets acquired by
them during the marriage by their joint efforts or order
111
the sale of the asset and the division between the parties
of the proceeds of sale.
(4)
The court shall, in exercising the power
conferred by subsection (1), have regard to –
(a)
the custom of the community to which
the parties belong;
(b)
the extent of the contributions made by
each party in money, property or work
towards the acquiring of the assets;
(c)
any debts owing by either party which
were contracted for their joint benefit;
and
(d)
the needs of the infant children, if any,
of the marriage, and subject to those
considerations, shall incline towards
equality of division.
(5)
For the purposes of this section, references to
assets acquired during a marriage include assets owned
before the marriage by one party which have been
substantially improved during the marriage by the other
party or by their joint efforts.
PART XII
INTERVENTION
Intervention by
Attorney-General
168. (1)
In any proceedings under this Act
where the court requests the Attorney-General to do so,
the Attorney-General may intervene in contest or argue a
question arising in the proceedings.
(2) The Attorney-General may, in proceedings for a
decree of dissolution, nullity of marriage or judicial
separation at any time before the proceedings are finally
disposed of, intervene in the proceedings where the
112
Attorney-General has reason to believe that there are
matters relevant to the proceedings that have not been
made, may not be made but ought to be made known to
the court.
Delegation by
Attorney-General
169. (1)
The Attorney-General may, generally or
in relation to a matter or class of matters, by writing
under the Attorney-General’s hand, delegate all or any of
the Attorney-General’s powers and functions under this
Part, except the power of delegation, to the SolicitorGeneral
or
an
advocate
in
the
Attorney-General’s
Chambers.
(2)
A delegation under this section is revocable at
will and does not prevent the exercise of a power or the
performance of a function by the Attorney-General.
Intervention by
other persons
170. (1)
Where a person applies to the court in
proceedings for a decree of dissolution, nullity of marriage
or judicial separation for leave to intervene in the
proceedings and the court is satisfied that the person may
be able to prove facts relevant to the proceedings that
have not been made or may not be made, but ought to be
made known to the court, the court may, at any time
before the proceedings are finally disposed of, make an
order
entitling
that
person
to
intervene
in
the
proceedings.
(2)
An order under this section may be made
upon such conditions as the court thinks fit, including
the giving of security for costs.
Procedure on
intervention
171.
A person intervening under this Part and
section one hundred and seventy shall be deemed to be a
113
party in the proceedings with all the rights, duties and
liabilities of a party.
Rescission of
decree nisi in
consequence of
intervention
172.
The court may rescind the decree where an
intervention takes place after a decree nisi has been made
and it is proved that the petitioner has been guilty of
collusion with intent to cause a perversion of justice or
that material facts have not been brought before the
court.
Effect of decree nisi
on proceedings
173. For the purposes of this Part, where a decree
nisi has been made in any proceedings, the proceedings
shall not be taken to have been finally disposed of until
the decree nisi has become absolute.
PART XIII
EVIDENCE
Determination of
age of minor
174. (1)
A registering officer may, in respect of a
person who allegedly is a minor, accept a birth certificate,
an identity document or a sworn statement of the parent
or guardian of the minor as proof of that person’s age.
(2)
If the age of a person who allegedly is a minor
is uncertain or is in dispute, and that person’s age is
relevant for purposes of this Act, the registering officer
may submit the matter to a court for the determination of
the age.
Standard of proof
175. (1)
For the purposes of this Act, a matter of
fact shall be taken to be proved if it is established to the
reasonable satisfaction of the court.
(2)
Where a provision of this Act requires the
court to be satisfied of the existence of any ground or
114
fact or any other matter, it is sufficient if the court is
reasonably satisfied of the existence of that ground or
fact or that other matter.
Evidence of
husbands and
wives
176. (1)
The evidence of a husband or wife shall
be admissible in any proceedings to prove that marital
intercourse did or did not take place between them during
any period.
(2)
In proceedings for the nullity of marriage,
evidence on the question of sexual capacity shall be heard
in camera unless the court is satisfied that in the
interests of justice, the evidence ought to be heard in
open court.
Evidence of
adultery, cruelty or
desertion
177. (1)
A
witness
who
being
a
party
in
proceedings under this Act, voluntarily gives evidence on
the witness’s own behalf or is called by a party, may be
asked and is bound to answer a question, the answer to
which may show, or tend to show, adultery, cruelty or
desertion by or with the witness where proof of that
adultery, cruelty or desertion would be material to the
decision of the case.
(2)
Except as provided by subsection (1), a
witness in proceedings under this Act, whether a party to
the proceedings or not, is not liable to be asked or bound
to answer a question the answer to which may show or
tend to show that the witness has committed adultery.
Proof of marriage,
birth or death
178. The court may, in any proceedings, receive as
evidence of the facts stated in a document purporting to
be the original or certified copy of a certificate, entry or
record of a birth, death or marriage alleged to have taken
place in Zambia or elsewhere.
115
Convictions for
crimes
179. (1)
In any proceedings under this Act,
evidence that a party to a marriage has been convicted of
a crime in Zambia or elsewhere is evidence that the party
did the acts or things constituting the crime.
(2)
In proceedings under this Act, a certificate of
the conviction of a person of a crime by a court in Zambia
or a court of any foreign country, being a certificate
purporting to be signed by the Registrar or other proper
officer of that court, is evidence of the fact of the
conviction and of any particulars of the crime or of the
conviction, including the date on which the crime was
committed and any sentence of imprisonment imposed
that are included in the certificate.
Restrictions on
publication of
evidence
180. (1)
Except as provided by this section, a
person shall not, in relation to any proceedings under this
Act, print or publish or cause to be printed or published,
any account of evidence in the proceedings or any other
account or particulars of the proceedings other than(a)
the names, addresses and occupations
of the parties and witnesses
and
the
name or names of the advocates and
the judge constituting the court;
(b)
a statement of the nature and grounds
of the proceedings and the charges,
defences
and
counter-charges
in
support of which evidence has been
given;
(c)
submissions on any points of law
arising in the course of the proceedings
and the decision of the court on those
points; or
116
(d)
the
judgment
of
the
court
and
observations made by the court in
giving judgment.
(2)
The court may order that the matters referred
to in paragraphs (a), (b), (c) and (d) of subsection (1) or
any of them shall not be printed or published.
(3)
A person who contravenes subsection (1) or
prints or publishes, or causes to be printed or published,
any matter or part of a matter in contravention of an
order of a court under subsection (2) commits an offence
and is liable, upon conviction, to a fine not exceeding one
hundred thousand penalty units or to imprisonment for a
term not exceeding twelve months, or to both.
PART XV
OFFENCES AND PENALTIES
Effect of promise
to marry
181. (1) Except as provided in this section, a
promise by a person to marry another person is not
binding.
(2)
Despite subsection (1), damages may be
recoverable by a party that suffers a loss when the other
party refuses to honour a promise to marry.
False statement
in notice of
intention to
marry or notice
of objection
182. (1)
A person who, in a notice of intention to
marry under section twenty-four or thirty-eight or notice
of objection to an intended marriage under section
twenty-six, or for the purposes of doing anything required
to be done under this Act makes or submits a false
statement or document commits an offence and is liable,
upon conviction, to fine not exceeding four hundred
thousand penalty units or imprisonment for a term not
exceeding five years, or to both.
117
(2)
A person does not commit an offence under
this section if that person had reasonable grounds for
believing the statement to be true when that person made
the statement.
183. A person who –
Marriage to person
under minimum
age
(a)
marries or marries off a person who is
below the age of eighteen; or
(b)
coerces or entices a person who is
below
the
age
of
eighteen
into
a
marriage;
commits an offence and is liable, upon conviction, to a
fine not exceeding four hundred thousand penalty units
or imprisonment for a term not exceeding five years, or to
both.
Marriage of person
within prohibited
marriage
relationship
184. (1)
A party to a purported celebration of a
marriage where the parties are within a prohibited
marriage relationship commits an offence and is liable,
upon conviction, to a fine not exceeding three hundred
thousand penalty units or imprisonment for a term not
exceeding four years, or to both.
(2)
A person shall not be convicted of an offence
under this section if that person did not know and could
not reasonably have been expected to discover the
relationship.
(3)
A person charged under subsection (l) may
include a witness to the purported celebration of the
marriage.
Coercion, fraud,
etc
185. (1)
A party to a ceremony purporting to be
a marriage who at the time knows or has reason to believe
that the consent of the other party was induced by
118
coercion or fraud or by a mistake concerning the nature of
the ceremony or that the other party was suffering from
any
mental
disorder
or
mental
disability,
whether
permanent or temporary, or was intoxicated or under the
influence of drugs so as not to fully appreciate the nature
or purport of the ceremony commits an offence and is
liable, upon conviction, to a fine not exceeding two
hundred thousand penalty units or imprisonment for a
term not exceeding three years, or to both.
(2)
A person who personates another person in
marriage or marries under a false name or description
with intent to deceive the other party to the marriage
commits an offence and is liable, upon conviction, to a
fine not exceeding four hundred thousand penalty units
or to imprisonment for a period not exceeding five years,
or to both.
Ceremony
performed by
unauthorised
person
186. A person who celebrates a union purporting
to be a marriage and who at the time of the ceremony is
not licensed or authorised to do so commits an offence
and is liable, upon conviction, to a fine not exceeding two
hundred thousand penalty units or imprisonment for a
term not exceeding three years, or to both.
Offences relating
to celebration or
witnessing of
marriage
187. (1)
A person commits an offence if that
person celebrates or witnesses a union purporting to be a
marriage where that person knows or should know that(a)
at least one party is or was below the
age of eighteen years;
(b)
a notice of intention to marry, where
required, has not been given;
119
(c)
one
of
the
parties,
monogamous
in
marriage,
case
is
of
a
already
married to another person; or
(d)
a notice of objection to the proposed
marriage
has
been
given
and
the
objection has not been withdrawn,
dismissed or determined;
and is liable, upon conviction, to a fine not exceeding fifty
thousand penalty units or imprisonment for a term not
exceeding six months, or to both.
(2)
A person who celebrates a union purporting
to be a marriage at which the required witnesses are not
present commits an offence and is liable, upon conviction,
to a fine not exceeding ten thousand penalty units or
imprisonment for a term not exceeding three months, or
to both.
Offences in
relation to
marriage register
188. A person who unlawfully erases, forges, alters
or obliterates an entry in a marriage register or destroys a
marriage register commits an offence and liable, upon
conviction, to a fine not exceeding level fifty thousand
penalty units or to imprisonment for a period not
exceeding three months, or to both.
Failure to register
marriage, annulment
of marriage divorce
189. A party to a marriage who fails to register the
marriage, the annulment of the marriage or divorce within
the time specified in this Act commits an offence and is
liable, upon conviction, to a fine not exceeding five
hundred thousand penalty units.
120
PART XVI
GENERAL PROVISIONS
Attachment
190. (1)
The court may enforce, by attachment
or sequestration, an order made under this Act for
payment of maintenance or costs.
(2)
The court shall order the release from custody
of a person who has been attached under this section if
the person complies with the order in respect of which the
person was attached and may, at any time, if the court is
satisfied that it is just and equitable to do so, order the
release of the person despite that the person has not
complied with that order.
(3)
Where a person who has been attached under
this section in consequence of the person’s failure to
comply with an order for the payment of maintenance or
costs becomes a bankrupt, the person shall not be kept in
custody under the attachment longer than six months
after the person becomes a bankrupt unless the court
otherwise orders.
Recovery of
monies as
judgment debt
191. (1)
Where a decree made under this Act
orders the payment of money to a person, any money
payable under the decree may be recovered as a judgment
debt in a court of competent jurisdiction.
(2)
A decree made under this Act may be
enforced by leave of the court and on such terms and
conditions as the court thinks fit against the estate of a
party after the party’s death.
Appeals
192. A person aggrieved by a decree of any court
exercising its jurisdiction under this Act may, within such
121
time as may be prescribed by the rules, appeal from the
decree to a higher court.
Hearings to be in
open court
193. (1)
Except to the extent to which the rules
make provision for proceedings or part of proceedings to
be heard in chambers, the jurisdiction of the court under
this Act shall, subject to subsection (2), be exercised in
open court.
(2)
Where, in proceedings under this Act, the
court is satisfied that there are special circumstances that
make
it
desirable
in
the
interests
of
the
proper
administration of justice, that the proceedings or any part
of the proceedings should not be heard in open court, it
may order that any persons, not being parties to the
proceedings or their advocates, shall be excluded during
the hearing of the proceedings or any part of the
proceedings.
194. (1)
Injunctions
The court may, without prejudice to
any other powers of the court, upon application made by
either
party
to
the
marriage,
whether
or
not
an
application has been made by either party for any other
relief under this Act, grant an injunction or other order (a)
for the personal protection of a party to
the marriage;
(b)
restraining a party to the marriage from
entering
or
remaining
in
the
matrimonial home or the premises in
which the other party to the marriage
resides, or restraining a party to the
marriage from entering or remaining in
a specified area, being an area in which
the matrimonial home is or which is the
122
location of the premises in which the
other party to the marriage resides;
(c)
restraining a party to the marriage from
entering the place of work of the other
party to the marriage;
(d)
in relation to the property of a party to
the marriage; or
(e)
relating to the use or occupancy of the
matrimonial home.
(2)
In exercising its powers under subsection (1),
the court may make an order relieving a party to a
marriage from any obligation to perform marital services
or render conjugal rights.
(3)
Without prejudice to the power of the court to
punish a person for contempt, the court may if it is
satisfied that a person has knowingly and without
reasonable cause contravened or failed to comply with an
injunction or other order under this section (a)
order that person to pay a fine not
exceeding
two
hundred
thousand
penalty units;
(b)
require that person to enter into a
recognizance, with or without sureties,
in such amount as the court considers
reasonable to ensure that the person
will comply with the injunction or other
order, or order that person to be
imprisoned until the person enters into
such
recognizance
or
until
the
expiration of three months, whichever
first occurs;
123
(c)
order that person to deliver up to the
court such documents as the court
thinks fit; or
(d)
make such other orders as the court
considers
necessary
to
enforce
compliance with the injunction or other
order.
(4)
The court exercising jurisdiction under this
Act may grant an injunction, by interlocutory order or
otherwise,
including
an
injunction
in
aid
of
the
enforcement of a decree, where it appears to the court to
be just or convenient to do so, unconditionally or upon
such terms and conditions as the court thinks just.
Costs
195. The court may, in proceedings under this Act,
make such orders relating to costs and security for costs,
by way of interlocutory order or otherwise, as the court
thinks just.
Frivolous or
vexatious
proceedings
196. (1)
The
court
may,
at
any
stage
of
proceedings, if it is satisfied that the proceedings are
frivolous or vexatious, dismiss the proceedings.
(2)
The court may, at any stage of proceedings, if
it is satisfied that the allegations made in respect of a
party to the proceedings are frivolous or vexatious, order
that the party be dismissed from the proceedings.
Rules
197. (1)
The Chief Justice may, by statutory
instrument, make rules for or in relation to the practice
and procedure of the court in its exercise of jurisdiction
under this Act.
(2)
The rules of court referred to in subsection (1)
may be made to 124
(a)
regulate and prescribe the practice and
procedure of the court in matrimonial
causes;
(b)
prescribe matters relating to the costs
of proceedings and the assessment or
taxation of those costs;
(c)
prescribe the forms and petitions to be
used in connection with any cause or
matter before the court and the fees to
be charged in respect of proceedings
under this Act;
(d)
refer
claims
or
applications
for
maintenance or any other matter before
the court to a welfare officer or other
suitable person for investigation, report
and recommendation;
(e)
provide for legal aid for parties before
the court and the remission of court
fees;
(f)
provide for the manner of service of any
document requiring to be served or for
the manner of dispensing with such
service; and
(g)
regulate or prescribe any other matter
which is to be regulated or prescribed
by rules of court under this Act.
Regulations
198. (1)
The Minister may make regulations for
the better carrying into force of the provisions of this Act.
(2)
Notwithstanding the generality of subsection
(l), regulations may provide for(a)
the fees to be paid in respect of notices,
applications, licences and certificates;
125
(b)
the publication of notices of intention to
marry;
(c)
the
recognition,
registration
and
celebration of marriages;
(d)
the form of declaration to be given by a
person for purposes of this Act;
(e)
the forms of notices, licences and
marriage certificates;
(f)
the form of statement of particulars
relating to marriages to be used by
registration officers;
(g)
the
procedure
for
registration,
the
forms of returns to be made and the
registers to be kept under this Act;
(h)
the details of the marriage to be given
to the registrar and the RegistrarGeneral;
(i)
registers, records and indexes to be
kept under this Act and providing for
their inspection;
(j)
the provision of certified copies of
records or extracts of records kept
under this Act;
(k)
the hours during which marriages may
be celebrated or solemnised; and
(l)
anything required to be prescribed
under this Act.
(2)
Despite subsection (1), the Minister may
prescribe different regulations for different kinds of
marriages.
126
Repeal of Cap.
50, Cap. 57 and
Act No. 20 of
2007
Cessation of
application of
Married Women
Property Act
Transitional
provisions
199.
Brother’s
The
Marriage
Widow’s
Act,
Marriage
1918,
Act,
the
1926
Deceased
and
the
Matrimonial Causes Act, 2007, are repealed.
200. Despite any other written law, the United
Kingdom Married Women Property Act, 1924, ceases to
extend or apply to the Republic of Zambia.
201. (1)
A person who, immediately before the
commencement of this Act, was the Registrar-General of
Marriages
shall
continue
as
Registrar-General
of
Marriages under this Act.
(2)
The
parties
to
a
customary
marriage
contracted under customary law, a Hindu Marriage or
Islamic Marriage solemnised before the commencement of
this Act, which is not registered, shall apply to the
Registrar-General for the registration of the marriage
under this Act within three years of the commencement of
this Act.
(3)
The parties to a civil marriage which was
celebrated before the commencement of this Act shall
register the civil marriage within five years from the
commencement of this Act.
(4)
The Minister may extend the registration
period under this section by notice in the Gazette.
202. (1)
Savings
A subsisting marriage which under the
repealed Act or customary law in force constituted a valid
marriage immediately before the commencement of this
Act is valid for the purposes of this Act.
(2)
A petition for divorce, nullity of a void or
voidable marriage or judicial separation filed in the High
Court
and
not
concluded
or
is
pending
at
the
127
commencement of this Act shall be heard and determined
in accordance with the provisions of this Act.
(3)
Any
matrimonial
proceedings
and
maintenance proceedings commenced under any written
law shall, so far as is practicable, be continued in
accordance with the provisions of this Act.
(4)
Despite subsection (2), an order for judicial
separation or decree of divorce granted under any written
law shall, in relation to the powers of the court regarding
maintenance, be deemed to be a decree of separation or
divorce, granted under this Act.
128