QUESTION A

INTRODUCTION

Marriage is the foundation of the family in Zambia, as it is everywhere else. As a result, marriage
is a very significant institution since it is the foundation of every family, the smallest unit of
society. Parties can marry under civil law, which is governed by the Marriage Act, Chapter 50 of
the Laws of Zambia, as well as other written laws, common law, and equity rules, or they can
marry under customary law that applies to them, or in the case of inter-ethnic marriages, a
customary law of one of the parties to the marriage.1 Therefore, this essay aims at advising
Letulu on the steps to take making reference to the relevant section of the Marriage Act cap 50 of
the Laws of Zambia.

MARRIAGE ACT

At departure, the term of marriage has not been defined Marriage Act. However, Lord Penzance
in Hyde v Hyde and Woodmansee 2 defines marriage as the voluntary union for life of one man
and woman to the exclusion of all others. The components of a lawful civil marriage are outlined
in this definition. The first is that marriage is a consensual relationship that must be entered into
on one's own choice. The parties must decide to marry with complete and informed consent. This
means that mistakes, deception, duress, and undue influence might render a marriage invalid or
voidable.3

It suffices to mention that a marriage under the Marriage Act 4 may be solemnised by a licenced
Church Minister, priest or pastor in a designated or licensed place or building. The licences are
usually gazetted. The church itself or some such other place of worship must be licenced and
gazetted to solemnize marriages.

Furthermore, for a marriage to be recognized a valid statutory marriage, both parties must be
legally capable of marrying. The first distinguishing feature is that both parties must be at least
1
Lillian Mushota, Family Law in Zambia: Cases and Materials. (University of Zambia, UNZA Press, 2005).

2
(1866)LR 1 P& amp;D 130.
3
Lillian Mushota, Family Law in Zambia: Cases and Materials. (University of Zambia, UNZA Press, 2005).

4
Chapter 50 of the Laws of Zambia.
21 years old. The Registrar shall issue the certificate if the Registrar is satisfied that each of the
parties to the planned marriage is at least twenty-one years old pursuant to Section 10(1) (ii) 5 of
the Marriage Act. The clause also states that if either partner to the proposed marriage is under
the age of 21, parental or guardian approval must be acquired, and it must be in writing.

Correspondingly, if either party to a planned marriage is under 21 years of age and is not a
widower or widow, there should written approval from the parents or guardians pursuit to
Section 176 of the Act. Section 197 of the Marriage Act further gives power to the Minister of
Justice, a High Court Judge, or a District Secretary to consent to the marriage in writing where it
is impossible to obtain written approval from the parents or guardians.

In addition, a marriage contracted with a person under the age of 16 is void under Section 33(1) 8
of the Marriage Act. A marriage between two people who are both under the age of 16 is void,
according to the clause. A marriage between people aged 16 and under is also declared illegal
under Section 27(1) (a) (ii) of the Matrimonial Causes Act9. The other stipulation is that both
participants to the proposed marriage must be unmarried, divorced, or widowed.

This in essence means a person will be charged with bigamy if he or she is already married under
statute or African customary law. This is expressly provided for under Section 38 of the
Marriage Act10 and Section 166 of Penal Code Code 11. Both parties must be of sound mind and
of the same gender. In Zambia, same-gender marriages are illegal. Additionally, Section 10(1) 12
of the Marriage Act provides that the parties to an intended marriage should not be related either
by kindred or affinity. The Matrimonial Causes Act also provides that a marriage conducted
under the Marriage Act will not be valid if the parties are within the prohibited degrees of
relationship..13

5
Chapter 50 of the Laws of Zambia.
6
Marriage Act, Chapter 50 of the Laws of Zambia.
7
Chapter 50 of the Laws of Zambia.
8
Chapter 50 of the Laws of Zambia.
9
Act No. 20 of 2007
10
Chapter 50 of the Laws of Zambia.
11
Chapter 87 of the laws of Zambia.
12
Chapter 50 of the Laws of Zambia.
13
Section 27(1) (a) (i) of the Matrimonial Causes Act.
More so, the Marriage Act14 also specifies the procedures that must be followed in order for a
marriage to be recognized legal under the law. The first is that a certificate from the Registrar
must be received. To get it, one of the parties to the planned marriage must have lived in the
district where the marriage is to be solemnized for at least fifteen days immediately prior to the
registrar's issuance of the certificate. Another requirement is that the marriage be performed by a
licensed person at a licensed place.

This might be the Registrar of Marriages or the Minister of the church, religion, or
denominations in which the parties to the marriage are married. The marriage may be solemnized
according to the rituals and customs of the religion in question. Solemnization should take place
between the hours of 6:00 hours and 18:00 hours with all doors open.15

An illustration of the above can be adduced from the case of Gereis v Yagoub16 where the
marriage was solemnized but neither was the place nor the priest was licensed. The court held
that the marriage was void.

APPLICATION

According to the law, in order for Shakur and Letulu to have a valid civil marriage, they must be
21 years old or older, if not, parental or guardian consent must be obtained, they must be of the
opposite sex, single, divorced, or widowed, and they must apply for a marriage certificate to the
district registrar where one or both of them has lived for at least 21 days before the day of
solemnisation and the marriage should be solemnised in a licensed building in the presence of a
licensed minister such as at civic center, district registrar or a church with a licensed leader and
last but not the least, both parties should voluntarily consent to the union.

QUESTION B

LEGAL ISSUE

14
Chapter 50 of the Laws of Zambia.
15
Section 20 of the Marriage Act
16
[1997] 1 FLR 854
The legal issue that needs to be addressed in order to advise Letulu after she realises that
Shakur’s manhood is unbearable is whether or not Shakur’s unbearable manhood can dissolve
the marriage or annul the marriage and the status of the child

APPLICABLE LAW

The law applicable to the legal issue is the law law on divorce and nullity of marriage. Divorce is
a matrimonial cause that concerns dissolution of marriage on the ground that it has broken sown
irretrievably. A marriage is terminated by divorce order upon proof that there was marriage
between the parties. In a civil marriage the petition must be filed with a copy of the marriage
certificate. The current civil law is that there is only one ground for divorce, that is, the
irretrievable break –down of marriage provided for under Section 8 17 of the Matrimonial Causes
Act. Further, Section 918 gives an outline on what amounts to irretrievable break–down. The
section provides that 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.

Further, Nullity of marriage refers to a situation where a marriage has some defects. A void
marriage at law is treated as though it never existed in the first place. A void marriage has no
legal effect whatsoever. A voidable marriage on the other hand, is one which is a valid marriage,
but the parties may choose to annul the marriage. 19 Therefore, a voidable marriage would be

17
No. 20 of 2007.
18
Matrimonial Causes Act, No. 20 of 2007.
19
Lillian Mushota, Family Law in Zambia: Cases and Materials. (University of Zambia, UNZA Press, 2005).
valid until annulment the court. In De Reneville v De Reneville 20 the court held that a voidable
marriage is valid until it is declared a nullity by a court of competent jurisdiction. Based on the
facts of the case at hand the focus will be on what makes a marriage voidable.

There are a number of factors that can render a marriage voidable. These factors are provided for
in section 29 of the Matrimonial Causes Act. Section 29(a) of the Matrimonial Causes Act
provides that a marriage shall be voidable on the ground that the marriage has not been
consummated due to the incapacity of either party to consummate it. Consummation is the first
act of sexual intercourse between a husband and a wife. In the case DE v AG21it was stated that
the sexual act must be ordinary and complete and not impartial and incomplete. If the incapacity
can be corrected in any way such as through a medical procedure, the marriage will be rendered
voidable if the respondent had refused to go through any process to correct the incapacity such as
refusing to undergo a medical procedure or refusing to take the appropriate medicine for the
condition.22

With regard to the child, the law that applies is the law on legitimacy which relates to a child's
legal status at birth. A child is legitimate if he or she is born in lawful wedlock, that is, to parents
who are married to each other. If the child is born to parents who are not married to each other,
the infant is considered illegitimate. 23 Section 6 of the legitimacy Act24 provides for the
legitimization of illegitimate children The Act Provides that:

“A person claiming that he or his parent or any remoter ancestor became or has become
a legitimated person may, whether domiciled in the Republic or elsewhere, apply by
petition to the High Court praying the Court for a decree declaring that the petitioner is
the legitimated child of his parents; and the High Court shall have jurisdiction to hear
and determine such application and to make such decree as to the Court may seem just;
and such decree shall be binding to all intents and purposes on all persons whomsoever:

20
(1948) P.110
21
(1845) Rob Ecc
22
See section 31 of the Matrimonial Causes Act.
23
Lillian Mushota, Family Law in Zambia: Cases and Materials. (University of Zambia, UNZA Press, 2005).

24
Legitimacy Act, Chapter 52 of the laws of Zambia.
 Provided that the decree of the said Court shall not in any case prejudice any person,
unless such person has been cited or made a party to the proceedings or is the heir-at-
law or next of kin, or other real or personal representative of or derives title under or
through a person so cited or made a party; nor shall such sentence or decree of the
Court prejudice any person if subsequently proved to have been obtained by fraud or
collusion.”

APPLICATION

It can be seen in the facts that according to Letulu Shankur’s Manhood is unbearable. However,
Letulu cannot dissolve a marriage based on that as it is not a ground of marriage. Further,
Shakur and Letulu’s marriage can be rendred voidable if Letulu proves that their marriage was
not consummated on the basis that Shakur’s manhood is unbearable such that Shakur cannot
sustain and erection and /or cannot penetrate her. In respect to the child, the child is an
illegitimate child of the couple.
BIBLIOGRAPHY

STATUTES

Legitimacy Act, Chapter 52 of the laws of Zambia.

Matrimonial Causes Act, No. 20 of 2007.

Marriage Act, Chapter 50 of the Laws of Zambia.

Penal Code, Chapter 87 of the Laws of Zambia.

CASES

De Reneville v De Reneville (1948) P.110

DE v AG (1845) Rob Ecc

Gereis v Yagoub (1997)1 FLR 854

Hyde v Hyde and Woodmanse (1866) LR 1 P& amp;D 130

BOOKS

Lillian Mushota, Family Law in Zambia: Cases and Materials. (University of Zambia, UNZA
Press, 2005).