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The courts in Zambia remain seized with the determination of custody, maintenance and

property distribution upon declaration of nullity, divorce or judicial separation. The legal
issues arising which will inform the advice to Anne are whether or not she can apply for
the custody of the children, whether she may also be granted maintenance for her and
the children as well as whether or not the court will grant her any property in these
circumstances. It is imperative in the case casu to apprise Anne in passing, how her
marriage to John is void at law before interrogating in details the issues that ensue after
the declaration by the court. Anne should be made alive to the fact that in terms of
Section 27(1) c of the Matrimonial Causes Act (MCA), a marriage between parties of the
same sex shall be void. The law recognizes sex at birth not gender, therefore a
marriage with a transsexual was held to be void in the case of Corbett v Corbett. To
that end, the marriage between Anne and John is void ab initio.
The recourse that Anne has in light of the petition by John which is on firm grounds as
shown above is to apply for custody, maintenance and a share of the property in terms
of the MCA. The legal advice to Anne shall be primarily based on the provisions of the
MCA and shall be buttressed by case law in order to give her an informed position on
the prospects of her obtaining a favourable outcome from the courts.
The first legal issue is whether or not Anne can apply for the custody of the children.
The relevant law in respect of this legal issue is enshrined in Section 72(a) of the MCA
which provides as follows;
the Court may make such order as it thinks fit for the custody and
education of any child of the family who is under the age of twenty five in
any proceedings for divorce, nullity of marriage or judicial separation
before or on granting a decree or at any time thereafter, whether in the
case of a decree of divorce or nullity of marriage, before or after the
decree is made absolute.
In light of the above, the relief of custody for children is available either on
petition before granting the decree, upon granting or any time after the granting
of the decree of nullity. The child of the family include a child adopted since the
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marriage by the husband and wife or by either of them with the consent of the
other, as provided for under Section 5 of the MCA. It can therefore be submitted
that the two children who were adopted qualify to be children of the family for the
purposes of the MCA, consequently the courts has jurisdiction to determine the
custody of Mark and Mary.
In dealing with the issue of custody the courts are guided by the provisions of
Section 75 of the MCA, which provides for the powers of the court in respect of
custody. The court is also bound to have the interest of the child as paramount
consideration by the provisions of Section 72(1)(a) of the MCA.
Annes prospects in respect of obtaining custody are high given that the courts
considers the emotional needs of the children more than their physical needs.
The courts usually grant the custody to the mother in spite of her financial
standing. It is also a settled point of law that the court will not consider the
behaviour of the mother which caused the breakdown of marriage as a factor
which may negate her chances of being granted custody. The preceeding legal
principle was put on firm footing in the instructive case of Re L(Infants) (1962).
The courts also consider granting maintenance order together with custody in
order to capacitate the party to whom custody is granted. In light of the above
discussion, Anne stands a high chance of being granted custody of the children.
The second legal issue arising is whether Anne may be granted maintenance for
her and the children and if so when?
The courts have the discretion to make an order for maintenance pending suit
upon petition for nullity of marriage in line with Section 52(1) of the MCA. The
courts have upheld this legal position and granted maintenance pending suit in
the case of Xirocostas v Poma. To that end, Anne has the legal basis to apply
for the interim relief, maintenance pending suit. Anne should also be alive to the
fact that the court can also make a retrospective order effective from the date of
presentation of petition in terms of Section 52(2) of the MCA, a position which
was also affirmed in Xirocostas v Poma. It is not in dispute that Anne is
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currently not working and has been kicked out of the matrimonial home therefore
she is in need of immediate financial maintenance pending suit to sustain herself.
To that end, her application for maintenance pending suit will succeed.
The court also has powers to order periodic payment, secured periodic payment
or lump sum payment to either the spouse, or to a specified person for the
benefit of the child or indeed to the child in terms of Section 54(1) of the MCA.
The court is generally limited by Section 54 (2), which prohibits it to make such
an order for a child who is above 21 years. The essence of this section is that the
court as a general rule may make a maintenance order for a child who is 21
years and below. To that end, given that both Mark and Mary are both below 21
years of age they qualify to be granted maintenance orders in terms of S 54 of
the MCA.
In order to amply advise Anne on the possible outcome of the application for
maintenance it is important to examine the settled points of law that will bind as
well as those that will persuade the court. The court in making the maintenance
order shall take cogniscant of the provisions of S 56(1) of the MCA, which include
among other things income, earning capacity, other financial resources, financial
needs, obligations, standard of living and ages of the parties. This principle was
fortified in the case of White v White where it was held that the court shall take
into consideration available financial resources and obligations of each of the
parties. Furthermore, the court will be guided by S 56 (2) of the MCA which
provides that the maintenance order should seek to put the parties in a position
they would have been if the marriage had continued to subsist. In addition, the
learned Judge in the leading case of Chibwe v Chibwe observed that the courts
must invoke both the principles of equity and law concurrently in making property
adjustment or awarding maintenance in order to do justice taking into account
circumstances of the case. This point of law was also upheld in the recent case
of Chiyungi v Chiyungi. Furthermore the court will also be guided by Watchel v
Watchel where it was observed that the court must view the situation broadly
and see that the financial arrangements meet the justice of the case.
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It is not in dispute that Anne gave up everything for the marriage, her job as well
as her property which she sold and bought matrimonial property from the
proceeds thereof. It is also a notorious fact that she is currently not working
consequently she cannot support herself. To that end, it can be submitted that
the principles of equity will be invoked by the court in order to ensure that she is
brought in as much as possible to the position that she would have been in, if the
decree of nullity was not granted. In view of the foregoing discussion it can be
surmised that Annes application for her and the childrens maintenance (upon
granting of custody) will succeed.
The third legal issue is whether or not the court will grant Anne any property in
these circumstances.
The court in terms of Section 55 of the MCA has got jurisdiction to make property
adjustment orders which include an order to transfer property to the other party
or an order for settlement of property as may be specified or indeed an order
varying ante nuptial settlement as well as orders reducing parties interest in
property. Property which qualifies to be family assets as referred to in the
provisions of the above section was defined in Watchel v Watchel as;
those things which are acquired by one or both of the parties with
the intention that there should be continuing provision for them and
their children during their joint lives and used for the benefit of the
whole family as a whole.
Taking cogniscant of the definition of family assets it can be submitted that even
if John acquired the matrimonial home using his resources, it fits in the above
definition and therefore falls within the ambit of property which the court has
jurisdiction to adjust upon nullity of marriage.
Anne should be alive to the fact that in dealing with property adjustment the
whole concept of apportioning blame was obliterated by the courts. It was held in
the instructive case of Watchel v Watchel as cited in Chiyungi v Chiyungi that

the court should not hold the respondents behaviour against him when it comes
to distribution of assets.
The starting point for courts in property adjustment is to award the plaintiff one
third of the combined resources as guided by paragraph 1066 of Halsbury Laws
of England as fortified in C v C and D. It is important to note from the onset that
the above position is a starting point and is not binding on the courts, given that
Section 55 of the MCA does not give courts the percentages. To that end,
percentages in terms of property adjustment remain at the discretion of the court
on a case by case basis. Anne should be encouraged by the fact that the
modern trend in order to do justice is to share equally the matrimonial home as
was observed in Chiyungi v Chiyungi. To that end, it should be intimated to
Anne that there are high prospects of the courts making an order for property
adjustment in her favour in view of the points of law interrogated above.
In conclusion Anne should be granted the interim relief, maintenance pending
suit to abate her immediate suffering as outlined in the discussion above. She is
also entitled at law, at the discretion of the courts to custody of the two children of
the family namely Mark and Mary, maintenance and property adjustment as
provided for by the relevant principles of law discussed above upon conclusion of
the petition.