FAMILY LAW MODULE Mainza

The University of Zambia
in association with
The Zambia Centre for Accountancy Studies
BACHELOR OF LAWS (LLB)
L 132 FAMILY LAW

MODULE
AUTHOR: VINCENT LUNGWANGWA

LLB (UNZA) LLM (UNZA)
Copyright
ALL RIGHTS RESERVED

No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by any means, electronic or mechanical, including
photocopying, recording or otherwise without the permission of the Zambia Centre
for Accountancy Studies.
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Table of Contents
UNIT ONE: INTRODUCTION TO FAMILY LAW AND SOURCES OF FAMILY LAW .................................. 78
1.0 INTRODUCTION ................................................................................................................................. 78
1.1 AIM .................................................................................................................................................... 78
1.2 OBJECTIVES ....................................................................................................................................... 78
1.3 TIME REQUIRED ................................................................................................................................ 78
1.4 REFLECTION....................................................................................................................................... 78
1.5 WHAT IS FAMILY LAW? ..................................................................................................................... 78
1.6 SUMMARY ..................................................................................................................................... 1011
1.7 ACTIVITIES ..................................................................................................................................... 1011
UNIT 2: TYPES OF MARRIAGES AND THE CONTRACT OF MARRIAGE ............................................ 1112
2.0 INTRODUCTION ............................................................................................................................. 1112
2.1 AIM ................................................................................................................................................ 1112
2.2 OBJECTIVE ..................................................................................................................................... 1112
2.3 TIME REQUIRED ............................................................................................................................ 1112
2.4 REFLECTION................................................................................................................................... 1112
2.5 TYPES OF MARRIAGES AND THE CONTRACT OF MARRIAGE......................................................... 1112
2.6 SUMMARY ..................................................................................................................................... 3031
2.7 ACTIVITIES ..................................................................................................................................... 3031
UNIT 3: NULLITY OF MARRIAGE ............................................................................................................. 3132
3.0 INTRODUCTION ............................................................................................................................. 3132
3.1 AIM ................................................................................................................................................ 3132
3.2 OBJECTIVES ................................................................................................................................... 3132
3.3 TIME REQUIRED ............................................................................................................................ 3132
3.4 REFLECTION................................................................................................................................... 3132
3.5 NULLITY OF MARRIAGE ................................................................................................................. 3132
3.6 SUMMARY ..................................................................................................................................... 4243
3.7 ACTIVITIES ..................................................................................................................................... 4243
UNIT FOUR: THE LEGAL EFFECT OF MARRIAGE-STATUTORY AND CUSTOMARY .......................... 4344
4.0 INTRODUCTION ............................................................................................................................. 4344
4.1 AIM ................................................................................................................................................ 4344
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4.2 TIME REQUIRED ............................................................................................................................ 4344
4.3 OBJECTIVES ................................................................................................................................... 4344
4.4 REFLECTION................................................................................................................................... 4344
4.5 THE RIGHT TO CONSORTIUM ........................................................................................................ 4344
4.6 SUMMARY ..................................................................................................................................... 5051
4.7 ACTIVITIES ..................................................................................................................................... 5051
UNIT FIVE: BREAK DOWN OF MARRIAGE .............................................................................................. 5152
5.0 INTRODUCTION ............................................................................................................................. 5152
5.1 AIM ................................................................................................................................................ 5152
5.2 OBJECTIVES ................................................................................................................................... 5152
5.3 TIME REQUIRED ............................................................................................................................ 5152
5.4 REFLECTION................................................................................................................................... 5152
5.5 DIVORCE ........................................................................................................................................ 5152
5.6 SUMMARY ..................................................................................................................................... 7172
5.7 ACTIVITIES ..................................................................................................................................... 7172
UNIT SIX: FINANCIAL RELIEF FOR SPOUSES AND CHILDREN, PROPERTY RIGHTS AND CUSTODY OF
CHILDREN UPON BREAKDOWN OF CIVIL AND CUSTOMARY MARRIAGE ............................................. 7273
6.0 INTRODUCTION ............................................................................................................................. 7273
6.1 AIM ................................................................................................................................................ 7273
6.2 OBJECTIVES ................................................................................................................................... 7273
6.3 TIME REQUIRED ............................................................................................................................ 7273
6.4 REFLECTION................................................................................................................................... 7273
6.5 MAINTENANCE .............................................................................................................................. 7273
6.6 SUMMARY ..................................................................................................................................... 9596
6.7 ACTIVITIES ..................................................................................................................................... 9596
UNIT SEVEN: JUDICIAL SEPARATION, SEPARATION AGREEMENTS AND MAINTENANCE PENDING
SUIT 97
7.0 INTRODUCTION ................................................................................................................................. 97
7.1 AIM .................................................................................................................................................... 97
7.2 OBJECTIVES ....................................................................................................................................... 97
7.3 TIMES REQUIRED............................................................................................................................... 97
7.4 REFLECTION....................................................................................................................................... 97
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7.5 JUDICIAL SEPERATION ................................................................................................................... 9897
7.6 MAINTENANCE PENDING SUIT........................................................................................................ 101
7.7 SUMMARY ....................................................................................................................................... 101
7.8 ACTIVITIES ....................................................................................................................................... 102
UNIT EIGHT: MAINTENANCE .................................................................................................................... 103
8.0 INTRODUCTION ............................................................................................................................... 103
8.1 AIM .................................................................................................................................................. 103
8.2 OBJECTIVES ..................................................................................................................................... 103
8.3 TIME REQUIRED .............................................................................................................................. 103
8.4 REFLECTION..................................................................................................................................... 103
8.5 MAINTENANCE ................................................................................................................................ 104
8.6 SUMMARY ....................................................................................................................................... 115
8.7 ACTIVITIES ................................................................................................................................. 116115
UNIT NINE: MATRIMONIAL INJUNCTIONS, WARDSHIP OF A CHILD, GUARDIANSHIP AND FOSTER
PARENTING 117116
9.0 INTRODUCTION ......................................................................................................................... 117116
9.1 AIM ............................................................................................................................................ 117116
9.2 OBJCETIVES ............................................................................................................................... 117116
9.3 TIME REQUIRED ........................................................................................................................ 117116
9.4 REFLECTION............................................................................................................................... 117116
9.5 MATRIMONIAL INJUNCTIONS, WARDSHIP OF A CHILD, GUARDIANSHIP AND FOSTER PARENTING
........................................................................................................................................................ 117116
9.6 SUMMARY ................................................................................................................................. 122121
9.7 ACTIVITIES ................................................................................................................................. 122121
UNIT TEN: ADOPTION......................................................................................................................... 123122
10.0 INTRODUCTION ....................................................................................................................... 123122
10.1 AIM .......................................................................................................................................... 123122
10.2 OBJECTIVES ............................................................................................................................. 123122
10.3 TIME REQUIRED ...................................................................................................................... 123122
10.4 REFLECTION............................................................................................................................. 123122
10.5 ADOPTION ............................................................................................................................... 123122
10.6 SUMMARY ............................................................................................................................... 130129
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10.7 ACTIVITIES ............................................................................................................................... 130129
UNIT ELEVEN: LEGITIMACY ................................................................................................................ 131130
11.0 INTRODUCTION ....................................................................................................................... 131130
11.1 AIM .......................................................................................................................................... 131130
11.2 OBJECTIVES ............................................................................................................................. 131130
11.3 TIME REQUIRED ...................................................................................................................... 131130
11.4 REFLECTION............................................................................................................................. 131130
11.5 WHAT IS LEGITIMACY? ............................................................................................................ 131130
11.6 RIGHTS OF CHILDREN OF VOID AND VOIDABLE MARRIAGES ................................................. 137136
11.7 SUMMARY ............................................................................................................................... 138137
11.8 ACTIVITIES ............................................................................................................................... 138137
UNIT TWELVE: CUSTODY OF CHILDREN ............................................................................................. 139138
12.0 INTRODUCTION ....................................................................................................................... 139138
12.1 AIM .......................................................................................................................................... 139138
12.2 OBJECTIVES ............................................................................................................................. 139138
12.3 TIME REQUIRED ...................................................................................................................... 139138
12.4 REFLECTION............................................................................................................................. 139138
12.5 CUSTODY ................................................................................................................................. 139138
12.6 SUMMARY ............................................................................................................................... 142141
12.7 ACTIVITIES ............................................................................................................................... 142141
UNIT THIRTEEN: SUCCESSION AND INHERITANCE ............................................................................ 143142
13.0 INTRODUCTION ....................................................................................................................... 143142
13.1 AIM .......................................................................................................................................... 143142
13.2 OBJECTIVES ............................................................................................................................. 143142
13.3 TIME REQUIRED ...................................................................................................................... 143142
13.4 REFLECTION............................................................................................................................. 143142
13.5 SUCCESSION ............................................................................................................................ 143142
13.36 SUMMARY ............................................................................................................................. 170169
13.37 ACTIVITIES ............................................................................................................................. 170169
14.0 BIBLIOGRAPHY ........................................................................................................................ 171170
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UNIT ONE: INTRODUCTION TO FAMILY LAW AND SOURCES
OF FAMILY LAW
1.0 INTRODUCTION
1.1 AIM
The aim of this unit is to introduce the student to the subject of family law as well as the sources
of family law.
1.2 OBJECTIVES
At the end of this unit, the student should be able to understand what family law is and the
sources of family law.
1.3TIME REQUIRED
Minimum amount of time on this unit is four hours
1.4 REFLECTION
Do you think it is necessary to have family law?
1.5 WHAT IS FAMILY LAW?

Family law is an area of the law that deals with family matters and domestic relations, including:
 Marriage, separation and the rights to consortium
 Adoption
 Child custody and maintenance
 Affiliation and maintenance of children
 Legitimacy
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 The termination of marriage and ancillary matters including divorce, annulment of
marriage, property settlements, alimony,1 child custody and child maintenance;
 Inheritance succession.
It is important to note that the above list is not exhaustive but simply illustrative.
1.5.1SOURCES OF FAMILY LAW
The sources of any legal system are those things from which we can derive legal principles that
can help us resolve disputes that may arise. In this sense, the sources of family law in Zambia are
as follows:
(a) The Constitution of Zambia
The Constitution of Zambia is the first source of family law in Zambia. This is so in that the
Constitution of Zambia is the supreme law of the Republic of Zambia and any other written law,
customary law and customary practice that is inconsistent with its provisions is void to the extent
of the inconsistency.2
Laws enacted by Parliament (Legislation/ Acts of Parliament) create the bulk of the sources of
law of any country. In this vein, Acts of Parliament create the bulk of the sources of family law
in Zambia. Examples of some of the Acts of Parliament that are sources of family law in Zambia
include the Marriage Act;3 the Matrimonial Causes Acts;4 the Affiliation and Maintenance of
1
Alimony is simply spousal support to spousal maintenance and which is a legal obligation on a person to provide
financial support to their spouse before or after marital separation or divorce. The obligation arises from the
divorce law or family law of a country
2
See article 1 (1) of the Constitution of Zambia (Amendment) No. 2 of 2016
3
Cap 50 of the Laws of Zambia
4
Act No. 20 of 2007
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Children Act;5 the Adoption Act;6 the Legitimacy Acts;7 the Intestate Succession Act8and the
Wills Act,9just to name a few.
(b) The Laws and Statutes Which Apply or Extend to Zambia.
Apart from Acts of Parliament enacted by the Zambian Parliament which are sources of family
law in Zambia, there are other statutes and laws, from England that are also sources of family
law in Zambia.
Several Zambian Acts of Parliament refer to the law of England as applicable to Zambia when
there is a lacuna in our Zambian laws.10
However, the most important English statute that applies or extends to Zambia, is the English
Law (Extent of Application) Act Cap 11 of the Laws of Zambia. The Act provides that (a) the
common law; (b) the doctrines of equity; (c) the statutes which were in force in England on the
17th day of August 1911; and (d) any later English statutes applied to Zambia, shall apply to
Zambia.
In short, the English Law (Extent of Application) Act, extends to Zambia, the common law and
equity of England, English statutes in force in England on the 17th day of August 1911 and any
later English statutes that applied to Zambia, as applicable to Zambia as part of Zambian laws.
Zambia therefore not only applies these British laws but is also bound by judicial decisions of
British Courts based on these laws.
5
6
7
8
9
10
See section 12 of the High Court Act Cap 27 of the Laws of Zambia and the Subordinate Courts Act, Cap 28 of the Laws of
Zambia
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(c) Judicial Precedents (case law)
Judgments of superior Courts interpreting the provisions of statutes as well as interpreting the
principles of common law and equity, form part of the sources of family law in Zambia.
(d) Zambian Customary Law
Zambian customary law which is consistent with the written law and is not repugnant to natural
justice, equity, morality and good conscience is a source of family law in Zambia. It is important
to note that Zambian customary law plays a very minimal or negligible role as a source of law in
other branches of law. However, in the area of family law, Zambian customary law plays some
vital role as regards matrimonial disputes for marriages contracted under customary law as well
as for small claims in tort, which disputes, or claims are heard in local courts.
1.6 SUMMARY
This unit looked at the definition of family law and the sources of family law.
1.7 ACTIVITIES
(a) Explain what is meant by family law
(b) What are the sources of family law in Zambia
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UNIT 2: TYPES OF MARRIAGES AND THE CONTRACT OF
MARRIAGE
2.0 INTRODUCTION
The family is the basic unit of society. It follows that all things being normal, a family is
supposed to begin from marriage. This unit will discuss the types of marriage and the contract of
marriage.
2.1AIM
The aim of this unit is to introduce the student to the subject of marriage and the contract of
marriage.
2.2 OBJECTIVE
At the end of this unit, the student should be able to define marriage and be able to distinguish
the types of marriages.
2.3 TIME REQUIRED

2.4 REFLECTION
What type of marriage do you know?
2.5 TYPES OF MARRIAGE AND THE CONTRACT OF MARRIAGE

Zambia practices a dual legal system, in which civil law and customary law are administered
under parallel legal systems. This is in accordance with the dual legal system that Zambia
inherited at independence on 24th October 1964. Under this dual legal system, two types of valid
marriages can be contracted, one being the civil law marriages and the other being customary
law marriages. As has been demonstrated in Unit 1 above, the Constitution of the Republic of
Zambia and Acts of Parliament, particularly the Marriage Act, Chapter 50 of the Laws of Zambia
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stand out as the primary sources of the laws of marriage in Zambia. This is so in that both
statutes acknowledge civil law marriages and customary law marriages.
2.5.1 STATUTORY MARRIAGE
A statutory marriage, also known as a civil marriage is one that is solemnized in accordance with
the Marriage Act or the law of a foreign state and does not include marriages contracted in
accordance with customary law, unless solemnized under the Marriage Act.
Therefore, it follows that a statutory marriage is one that is governed by the Marriage Act, or the
law of a foreign state as regards the legal requirements for its validity and one governed by the
Matrimonial Causes Act No. 20 of 2007, as regards its dissolution.
2.5.1.1 DEFINITION OF STATUTORY MARRIAGE
The Marriage Act Cap 50 of the Laws of Zambia does not define the term marriage. The
definition of statutory marriage that Zambian courts applyis the traditional English definition of
statutory marriage given by Lord Penzance in Hyde V Hyde and Wood Mansee.11 In this case,
Lord Penzance defined a statutory marriage as the “voluntary union for life of one man and one
woman, to the exclusion of all others…….”
A closer look at this definition reveals the following:
(i) Voluntariness
(ii) A statutory marriage should be entered into voluntarily. This entails that a person should
not be coerced to enter into marriage against his/her will as doing so would deem that
marriage invalid.
11
(1866) LRI P&D 130
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(iii) For life
Lord Penzance envisaged a situation where once parties entered into marriage, they would
remain married for the rest of their lives. This is largely because the English law definition of
marriage was tailored on Christian doctrines which forbid divorce. However, we have seen that
in real life situations, marriage is not necessarily a union for life as a couple can be allowed to
divorce if circumstances prevailing satisfy the legal conditions warranting divorce. This will be
seen in the unit dealing with divorce.
(iv) One man and one woman to the exclusion of all others.
The statutory definition of marriage provides that marriage is a union of one man and one
woman to the exclusion of all others. This entails that statutory marriages do not allow for
polygamy. In fact, it is an offence under the Marriage Act Cap 50 of the Laws of Zambia for
either party who is already married under the Act to contract another marriage whilst the first one
is still subsisting. This is known as the offence of bigamy.12
It follows therefore that when parties are married under statutory law, none of them may marry
another partner during the subsistence of their marriage. If they do, they commit the crime of
bigamy punishable by up to five (5) years imprisonment, and also the latter marriage is void ab
initio, that is it is of no legal affect from the start.
See the case of The people v Chitambala.13

In this case the accused had contracted a valid civil law marriage with one Annie Mumbi on 12th April, 1964 in accordance with
the requirements of the then Marriage Ordinance Cap 132. The accused later contracted another marriage with Grace Lombe.
The accused put up a defence that he had an honest belief on reasonable ground that at the time of his second marriage his
12
Section 38
13
(1969) ZR 142
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former marriage had been dissolved. It was now to be decided whether the defence put up by the accused satisfied the court that
he had a infact such honest belief and that it was based on reasonable ground. The accused was convicted of bigamy.
2.6 Requirements for contracting a valid statutory/civil marriage
All things being equal and normal, it can be said that the basis of the family in any society
including Zambia, is marriage. Marriage therefore, is a very important institution as it is from the
marriage that a family, which is the smallest unit of society, is founded on. As has been observed
earlier, parties may choose to marry under civil law which is governed by the Marriage Act Cap
50 of the Laws of Zambia and other written laws, common law and rules of equity, or they may
choose to 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.
It is important to note that before 1963, Africans in Zambia, did not qualify to contract marriages
under the then Marriage Ordinance, as it did not apply to them. This meant that Africans in
Zambia, before 1963, could only marry under their customary laws of marriage. They could not
marry under the then Marriage Ordinance even if they wanted. This was not until the law was
amended in 1963 making it applicable to all who chose to be affected by it.
As regards the requirements for contracting a statutory or civil marriage, the Marriage Act Cap
50 outlines these requirements. It is important to note that although the Marriage Act Cap 50
prescribes the requirements for contracting a valid statutory marriage, in practice, the vast
majority of Zambians who choose to marry under statutory marriage, combine the statutory
processes required for contracting a valid statutory marriage with those customary processes
required to contract a valid customary marriage.
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The customary procedures that are combined alongside the statutory procedures for contracting a
civil law or statutory marriage are various. It is important to note that these customary
procedures have no effect on negating the validity of a statutory marriage as long as all the
statutory procedures of the Marriage Act are fulfilled.
This entails that non-fulfillment of the customary procedure will not invalidate the statutory
marriage provided that all the requirements stipulated by the Marriage Act as regards the
procedure for contracting a valid statutory marriage are fulfilled.
Some of these customary procedures that are combined alongside the statutory procedure for
contracting a statutory marriage include the payment of lobola by the groom‟s family to validate
the marriage and to have the right to the children of the marriage. Others include the heavy
dependence placed on the consent of the parents, especially that of the bride, without which there
can be no marriage.
There is a customary traditional practice of believing that a marriage is an alliance of both
families of the parties to the marriage, that is, an alliance of the bride and groom‟s families. A
statutory marriage on the other hand is a union of the two parties to the marriage rather than an
alliance of the bride and groom‟s families as is the notion under customary law. In addition, the
parties‟ families usually observe the statutory solemnization ceremony as well as the traditional
ceremony of a feast and rites of handing over the bride to the groom‟s family. It is important to
note that these two sets of procedures are normally blended in such a way that one does not
disrupt the other.
As regards the requirements for contracting a valid statutory marriage, the following are the
requirements:
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(i) Notice
There must be Notice of the intention to marry made to the Register of Marriages of the district
in which the marriage is intended to take place.14 The Notice must be given not less than 21 days
before the date of solemnization of the marriage. The Notice must be given by one of the parties
to the intended marriage, and this notice must be signed by that party. It is important to note that
section 11 of the Act provides that
“if the marriage shall not take place within three months after the date of the Notice, the Notice and all proceedings consequent
thereupon shall be void: and further Notice must be given in accordance with section six before the parties can lawfully marry.
(ii) Residency
Section 10 of the Marriage Act requires that one of the parties to the intended marriage must
have been a resident of the district in which the marriage is intended to be solemnized for at least
15 (fifteen) days immediately preceding the granting of the marriage of the marriage certificate.
This provision therefore clarified the fact that a party‟s domicile is not very cardinal to
contracting a valid statutory marriage under the Marriage Act of the Laws of Zambia. This is so
in that regardless of one‟s domicile, it is enough that a party has been a resident of the district in
which the marriage is intended to be solemnized for at least 15 (fifteen) days immediately
preceding the granting of the marriage certificate.
(iii) Age and consent of parents or guardian judge
Section 10 (1) (ii) of the Marriage Act Cap 50 provides:
14
Section 6 of the Marriage Act Cap 50 of the Laws of Zambia
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that only a person that is sixteen years and above can contract a valid statutory marriage. The section requires that where either
party to an intended marriage is at least sixteen (16) years old and less than 21 years old and provided that such party is neither
a widow or widower, consent to the marriage of the parents or guardians of such a party is required.
However, where a party is at least 21 years and above, no consent of the parents or guardians of
such party is required.
It is important to note therefore that, according to section 10 (1) (ii), a person who is at least 16
years old can validly get married under civil law. However, the section requires that where the
party is at least 16 years old, but less than 21 years old, such party world require the prior valid
consent of their parent or guardian for the marriage to be valid. However, it is important to note
that such prior consent of the parent or guardian is only required when a party to the intended
marriage is at least 16years old but less than 21 years and that such a party is not a widow or
widower.
It follows from the above that where a party to an intended marriage is 16years but less than
21years old, the consent of the parent or guardian would not be needed if such a party is either a
widow or widower.
In addition, it is important to note that section 19 of the Act allows a judge of the High Court to
give consent to a marriage, where any parent or guardian whose consent to a marriage is
required, refuses to give his/her consent. Furthermore, the section allows a judge to give such
consent where there is no parent or guardian to give the consent.
(iv) Sex of the parties
Section 10 (1) (ii) of the Marriage Act Cap 50 provides by implication, that the parties to any
intended marriage must be respectively male and female and therefore should not be of the same
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sex. In addition, section 27 (1) (c) of the Matrimonial Causes Act No. 20 of 2007 states expressly
that marriage contracted by parties of the same sex shall be void.
It follows therefore that under the Zambian law, it is illegal for parties of the same sex to purport
to have married each other. It is for this reason that “gay marriages” are not practiced in Zambia
and this basically entails that such associations will not constitute a marriage. In addition, such
associations will constitute a criminal offence under The Penal Code Act Cap 87 of the laws of
Zambia
(v) prohibited degree of kindred or affinity
Section 10 (1) (ii) of the Marriage Act provides that a statutory marriage shall be valid if the
parties to the intended marriage are such that there is not any impediment of kindred 15 or
affinity16or any other lawful hindrance to the marriage.
Statutory law prohibits marriage between certain persons who are blood relativese.g. a sister
marrying her blood brother (kindred). 17 On the other hand, certain persons who are related
through marriage are prohibited. For example, marriage between a man and his wife‟s mother is
prohibited
Section 27 (1)(i) of the Matrimonial Causes Act No. 20 of 2007 provides that:
“a marriage celebrated after the commencement of this Act shall be void on the following grounds:
(a) that the marriage is not a valid marriage under the provisions of the Marriage Act due to the fact that-
(i) the parties are within the prohibited degrees of consanguinity18 or affinity.
(vi) Parties to marriage must be single parties
15
Kindred connotes a blood relation
16
Affinity connotes a relation through marriage
17
Affinity connotes a relation through marriage
18
Consanguinity and kindred have one and the same meaning, which connotes a blood relation
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Section 10 (1)(iv) provides that:
neither of the parties to the intended marriage should be married by African customary law to any persons other than the person
with whom such marriage is proposed to be contracted.
This provision prohibits polygamy in a statutory marriage but allows a conversion of customary
marriage into a statutory marriage.
(vii) Solemnization of marriage
Section 20 of the Act provides that:
A marriage must be solemnized by a licensed person (called Minister), in a licensed building or

place, and that the solemnization must take place with open doors and between the hours of six
o‟clock in the forenoon (morning) and six o‟clock in the afternoon, and it must be in the presence
of two or more witnesses besides the officiating Minister.
It is important to note that section 21 prohibits a Minister from solemnizing a marriage if there is
any just impediment to such marriage or until the parties deliver to him the Registrar‟s certificate
or the special license.
In addition, section22 prohibits a Minister from solemnizing any marriage except in a building
which has been duly licensed by the Minister or in such place as the special license may direct.
This provision therefore directs that marriage can only be solemnized in a non-licensed place by
a Minister only when a special license has been issued.
Offences and Penalties under the Marriage Act relating to marriages
Part VII of the Marriage Act, Cap 50 of the Laws of Zambia provides for various penalties for
contracting a marriage contrary to the provisions of the Act. These penalties are as follows:
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The offence of Bigamy
Section 38 provides that
“any person” who-
(a) Contracts a marriage under this Act, being at the time married in accordance with African customary law to any person
other than the person with whom such marriage is contracted;
(b) having contracted a marriage under this Act, during the continuance of such marriage contracts a marriage in
accordance with African customary law; shall be guilty of an offence and liable on conviction to imprisonment for a
period not exceeding five years:
Provided that this section shall not extend to any person who contracts a marriage during the life of a former husband or wife, if
such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space
of seven years and shall not have been heard of by such person as being alive within that time.”
Exempted by this provision is a spouse who marries another person under a presumption of
death. If the spouse is alive but has not been heard of or seen for seven ((7) years by people who
ought to see or hear of him, there is a presumption of death and therefore such person (who
contracts another marriage) may not be penalized.
A person who makes false declarations as to his/her status (that he/she are not already married to
someone else) is, upon conviction liable to five (5) years imprisonment.
Whoever helps him conceal his/her true status is also liable to the same penalty as provided in
sections 40-45 of the Marriage Act as follows:
False declarations relating to marriage
Section 40:
whoever in any affidavit, declaration, license, document or statement by law, to be made or issued for the purposes of a
marriage, swears, declares, enters certifies or states any material matter which is false shall if he does so without having taken
reasonable means to ascertain the truth or falsity of such matter, be liable on conviction to imprisonment with or without hard
labour for one year or shall, if he does so knowing that such matter is false, be liable on conviction to imprisonment with or
without hard labour for a period not exceeding five years.
False pretenses in connection with consent to marriage
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Section 41:
whoever endeavors to prevent a marriage by falsely pretending that his consent therefore is required by law, or that any person
whose consent is so required does not consent or that there is any legal impediment to the performing of such marriage, shall, if
he does so knowing that such pretense is false or without having reason to believe that it is true, be liable on conviction to
imprisonment with or without hard labour for a period not exceeding two years.
Even a person, who performs the ceremony of marriage knowing that he is not authorized, is
liable to five (5) years imprisonment with hard labour.
Illegal performance of ceremony of marriage
Section 42:
whoever performs the ceremony of marriage knowing that he is not duly qualified so to do, or that any of the matters required by
law for the validity of such marriage has not happened or been performed, so that the marriage is void or unlawful on any
ground, shall be liable on conviction to imprisonment with or without hard labour for a period not exceeding five years.
Further penalties and offences are provided for in sections 43 to 45 as follows:
Failure to fill up certificate of marriage by a minister and related offences
Section 43:
whoever, being under a duty of fill up the certificate of a marriage celebrated by him or the counter foil thereof or to transmit the
same to the Registrar, willfully fails to perform such duty shall be liable on conviction to a fine not exceeding one thousand and
five hundred penalty units or alternatively or in default of payment of such fine or in addition thereto, to imprisonment with or
without such fine or in addition thereto to imprisonment with or without hard labour for a period exceeding two years.
Impersonation and false pretenses in relation to marriage
Section 44:
whoever personates any other person in marriage or marries under a false name or description with intent to deceive the other
party to the marriage shall be liable on conviction to imprisonment with or without hard labour for a period not exceeding five
years.
False representation in relation to marriage
Section 45:
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whoever goes through the ceremony of marriage, or any ceremony which he or she represents to be a ceremony of marriage,
knowing that the marriage is void on any ground and that the other person believes it to be valid, shall be liable on conviction to
imprisonment with or without hard labour for a period not exceeding five years.
2.5.1 CUSTOMARY MARRIAGES
We have looked at statutory or civil law marriages, which are mainly governed by the Marriage
Act Cap 50 of the Laws of Zambia. However, that is not the only type of marriage recognized in
this country. The second type of marriage subsisting in Zambia is the customary marriage.
Customary law comprises local customs and traditions of indigenous peoples and forms the other
system in the dual legal system of Zambia. Customary marriages are administered by the local
courts. Customary law is unwritten and is orally passed from one generation to the next and
varies from locality to locality. Zambia has several ethnic groupings each of which practice its
own customs and traditions, although there are many similarities mainly because of
intermarriages and other forms of interaction.
It can therefore be said from the foregoing that customary marriages cannot be said to have any
specific form as it differs from one locality to another. This is basically because there is no
written law that sets up the essential requirements for contracting a valid customary marriage as
is the case with statutory marriage. But instead, the essential requirements for contracting a valid
customary marriage are governed by each particular tradition and custom, which is unwritten and
varies from one ethnic grouping to another. It is for this reason that when the court is called upon
to adjudicate on a dispute arising from a customary marriage, the court may need the aid of
assessors who are very conversant with the customs, traditions and culture of a particular ethnic
grouping. In this regard, courts are allowed to sit with assessors to guide them with regards to a
particular custom.
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It can be seen from the above that customary marriages are just as valid at law as civil marriages
and the court will give effect to customary practices as long as they are not inconsistent with the
written law, and are not repugnant to natural justice, equity, morality and good conscious.
It has been stated that customary marriages do not necessarily take a specific compulsorily
procedure as do statutory marriages. Despite this being the case, it is important to note that there
are a few characteristic features of a customary marriages that are similar to a statutory marriage.
In addition to this, there are equally many characteristic features of a customary marriage that are
different from a statutory or civil marriage.
Similarities between a customary marriage and a statutory marriage
(i) Both unions must be between parties of the opposite sex
One of the characteristic features of a customary marriage that is similar to a statutory marriage is
that in both unions, the parties to the marriage must be respectively male and female. There is no
known Zambian custom that allows and recognizes a marriage between parties of the same sex.
Equally, The Marriage Act Cap 50 of the Laws of Zambia expressly forbids marriage by parties
who are of the same sex as demonstrated above.
Differences between customary marriages and statutory marriages
As has been stated above, there are many differences in terms of characteristic features between
a customary marriage and statutory or civil law marriages. The following are the characteristic
differences between the two types of marriages:
(i) Polygamy
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Unlike a civil marriage that is defined as a voluntary union for life of one man and one woman,
to the exclusion of all others, this may not necessarily be the case with customary marriage. This
is so because a customary marriage is potentially polygamous. In Sowa v Sowa,19 the parties
were married under Ghana customary law and the marriage was potentially polygamous,
although monogamous at that moment, Lord justice Holroyd Pearce held that the man was free to
marry another wife, thereby turning the marriage into a polygamous one.
(ii) Age
Under customary law, there is no prescribed legal age for parties to get married. As has been
shown above, under statutory marriages, there is a prescribed legal age for marriage which is
sixteen years.
This means that under statutory marriage, for parties to contract a valid statutory marriage, the
boy and girl must be at least 16years and older.
This is not the case under customary marriage, as there is no prescribed age of marriage. A girl is
deemed to be ready for marriage under customary law when she reaches puberty. This is
regardless of the age that the girl reaches puberty. On the other hand, a boy is deemed to be
ready for marriage when he also reaches puberty and is capable of undertaking strenuous work
such as being capable to farm to provide food for his wife and children. As long as a boy has a
beard, he is regarded as mature under customary law.
19
(19991) at P 68
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In R V Chinjamba,20
a villager, Fulai Njamba, married a girl under the age of sixteen years and lived with her as man and wife. The accused, who was
the village headman, knew of these facts and took no steps to prevent or report the matter. He was charged with being an
accessory after the fact to unlawful carnal knowledge of a girl under the age of sixteen years, and convicted pursuant to section
119(1) of the penal code. The matter was called for review by the High Court, before Hon. Justice Woodman. On review, it was
held that “it is not unlawful for a man to have carnal knowledge of a girl to whom he is lawfully married, despite the fact that the
girl is under sixteen years of age.”
It follows therefore, that customary marriage to a girl under sixteen years of age is not unlawful
and does not amount to defilement as stated in R V Chinjamba. This case, has remained the
source of law on this position, up to today.
(iii) Lobola
The payment of lobola is not one of the requirements that make civil marriage valid. This entails
that for a civil marriage to be valid, there is no requirement that lobola must be paid. The only
requirements for contracting a valid, civil law marriage are those stipulated in the Marriage Act,
and outlined above, which requirements do not include the payment of lobola. It follows that a
civil marriage will be validly contracted even when lobola is not paid, provided the stipulated
requirements under the Act are fulfilled.
This is not the case with regards to customary marriages. As stated above, customary law
marriage does not provide for compulsory stipulated procedures. However, this notwithstanding,
it is important to note that payment of lobola under customary marriage, provides the key
ingredient of validating a customary marriage and for the man to have the right to the children of
the marriage. The lobola is paid by the groom‟s family to the bride‟s family.
(iv) Consent of the parties to the marriage- that of the families concerned
20
(1949) NRLR Vol V 384
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Statutory marriage has been defined as a “voluntary” union. This entails that either party to the
marriage has to enter the union voluntarily and without being coerced into the union.
This is not the case as regards customary marriages. This is particularly so in that in customary
marriages, the consent of the parties is not so important. This is so in that under customary law, a
girl or boy but mostly a girl, maybe coerced to get into marriage by parents. 21 Parents usually do
this through arranged marriages with families they hold in trust, and consider to be of good
character and morals, as well as having sufficient resources to provide for their daughter. It
follows that the consent of the girl or boy is not really important when it comes to contracting a
valid customary marriage.
On the other hand, it follows that parental consent plays an important role in the marriage
process under customary law, without which consent, no marriage may take place. For example,
the consent of the girl‟s parents to the marriage is more important than the girls‟ consent itself.
This is so in that in a situation where the girl‟s parents do not consent to the marriage of their
daughter to a particular man, it will be difficult to pay lobola so as to validate the union. This is
so in that lobola is paid to the bride‟s parents and once the lobola is accepted, it signals consent
of the girls‟ parents to the marriage. Now, where the parents of a girl do not approve a certain
man, it will be difficult to even accept his lobola and thereby validate such union.
(v) Divorce
It is easy to obtain divorce under customary law than it is under civil marriages. Divorce under
customary law as it will be seen in the next unit, is easily granted. This is so in that under
21
Parents here connotes aunties, uncles, grandparents etc.
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customary law, a man can easily divorce his wife for any reason and even for no reason. In
addition, the grounds for divorce under customary law are many and in most cases the grounds
are frivolous and vexatious and favour the man rather than the woman. In fact, the notion under
customary marriage is that the man marries the woman, while the woman gets married. This is not
the case in statutory marriages. This so is in that in a statutory marriage, both parties marry each
other. In addition, under statutory marriage, divorce is not easily granted as the courts in statutory
marriage only grant divorce based on the prescribed statutory basis, which are stringent and do
not discriminate one party against the other as does customary law.
2.5.2 COMMON LAW MARRIAGE /PRESUMPTION OF MARRIAGE
Common law marriage, also known as suijuris marriages, informal marriage, marriage by habit
and repute, or marriage in fact is a legal frame work in a limited number of jurisdictions where a
couple is legally considered married, without the couple having formally registered their relation
as a civil or religious marriage. The original concept of a “common law marriage” is a marriage
that is considered valid by both partners but has not been formally recorded with a state or
religious registry, or celebrated in a formal religious service. In effect, the act of the couple
representing themselves to others as being married, and organizing their relation as if they were
married, acts as the evidence that they are married.
It is important to note that though Zambia derives her civil law of marriage from British Law,
Zambia does not recognize a common law marriage. Equally important to note is the fact that
even Britain recognizes common law marriages only to a limited extent.
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It is important to note that common law marriages as they are known today, were initially known
as “contract marriages” or as contracts per verba de praesenti. This is because these marriages
arose by mutual consent of the parties to the marriages, but without the parties going through a
formal marriage solemnization or celebration and also without the marriage being formally
registered with a statutory or religious registry. As a result of this, contract marriages were not
regarded as having the legal status of a valid marriage, until the decision in Dalrymple in
1911.22 The decision in Dalrymple affected the subsequent development of English law due to
the fact that the Marriage Act 1753 of England, which applied in England, did not apply
overseas. Because of this, English courts later held that it was possible to marry by a simple
exchange of consent in the colonies where the Marriage Act, 1753 did not apply. This became
the first ever circumstance where English courts recognized the validity of a marriage by
contract, now known as a common law marriage.
The second circumstances in which the English courts recognized marriages by consent as being
valid, was in circumstances where the marriage by consent took place in territories not under
British control and only if it had been impossible for the parties to marry according to the
requirements of the local law.23 For example, the late 1950s and early 1960s saw a spate of
matrimonial cases arising out of the Second World War, with marriage by consent, contracted in
prisoner-of-war camps in German-occupied Europe posing particular problem for judges in
England. For instance, some British civilians who were interned by the Japanese during the
Second World War were held to be legally married after contracting contract marriages under
circumstances where the formal requirements could not be met.
22
Dalrymple V Dalrymple (1811) 2 Hag. Con. 54; 161 ER 665
23
See the case of Philips V Philips (1921) 38 TLR 150
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It is therefore in these two stated circumstances that English law recognizes as valid the so called
contract marriages now known as common law marriage.
Having demonstrated the two circumstances in which English law recognizes common law
marriages, it can be aptly stated that the decision by the Zambian High Court in the Zambian
case of Somanje V Somanje,24in which the court held that particular marriage to have been a
common law marriage, was a misdirection. In this case, the parties to that law marriage, as the
then marriage ordinance in force at the time did not apply to Africans. The court held the
marriage to be invalid at the time. However, since the parties had lived together as husband and
wife and society had perceived them as such, the court held that marriage was a common law
marriage. This was indeed amisdirection, as common law marriages are not recognized in
Zambia. Even fervent Zambia family law scholars like Lillian Mushota25 acknowledged in her
book that the High Court of Zambia misdirected itself in the case of Somanje above as stated.
In conclusion, it can be stated that common law marriages do not suffice in Zambia. This is so in
that every form of marriage in Zambia whether statutory marriages or customary marriages must
go through some prescribed essential requirements as demonstrated above to be valid.
It follows therefore that in Zambia, a valid marriage cannot just arise from the mutual consent of
the parties as is the case with common law marriages as demonstrated above.
24
(1972) ZR 301 (H.C)
25
Mushota, L., (2005), Family Law in Zambia: cases and materials, Lusaka: UNZA press at 70
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2.6 SUMMARY
This unit looked at the different types of marriages and the manner in which they are contracted
2.7 ACTIVITIES
(a) What do you understand by a civil or statutory marriage?
(b) What are the legal requirements for contracting valid law marriage under the Marriage
Act Cap 50 of the Laws of Zambia?
(c) Distinguish a civil marriage from a customary marriage.
(d) Explain what is meant by common law marriage and its main distinctive features.
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UNIT 3: NULLITY OF MARRIAGE
3.0 INTRODUCTION
Nullity of marriage relates to two types of marriage, namely avoidable marriage and a void
marriage. Nullity of marriage is different from a divorce. A marriage is declared a nullity as it
may have been void from the beginning or it was voidable from the beginning and it is then
declared invalid. On the other hand, in a divorce the marriage is valid from the beginning and the
parties want to break it through divorce.
3.1 AIM
The aim of this unit is to introduce the student to the subject of nullity of marriage.
3.2 OBJECTIVES
At the end of the unit, the student should be able to distinguish between a void marriage and
avoidable marriage. In addition, the student should be able to distinguish a void and voidable
marriage from a divorce.
3.3 TIME REQUIRED
3.4 REFLECTION
Is a marriage valid as long as the procedures for contracting it are met?
3.5NULLITY OF MARRIAGE
Nullity of marriage is simply the avoidance of a marriage, as opposed to its termination by
divorce. A marriage maybe declared null as a result of some defect existing at the time the
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marriage was celebrated or because the marriage was a voidable one and it has been avoided
(invalidated).
It therefore follows that a marriage will be nullified because it was void abnitio (void from the
beginning) or because the marriage has been avoided, having been a voidable marriage.
It is important to note the difference between nullity of marriage and divorce. In nullity of
marriage, the marriage is avoided as it was invalid from the beginning, or that having been valid
from the beginning has become void, and hence there is no marriage that exists.
On the other hand, in termination of marriage through divorce, the circumstance is such that the
marriage is valid from the beginning and that the marriage remains valid, but the parties to it,
wish to terminate it.
It follows that under nullity of marriage, two types of marriages will be discussed. These two
types are a void marriage and avoidable marriage.
3.5.1 VOID MARRIAGE
A void marriage is one that is null and void with no legal effect from the start, while avoidable
marriage is one valid until it is annulled during the life time of the parties to it. In the case of De
Renevillev De Reneville,26Lord Green, Master of Rolls, made a clear distinction between void
and voidable marriages when he said:
26
(1948) IAII E.R. 56 at 60.
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“A void marriage is one that will be regarded by every court in any case in which the existence of the
marriage is in issue as not having taken place and can be so treated by both parties to it without the
necessity of any decree annulling it.”
The above statement by Lord Green implies that where the marriage is void, there is no need to
go to court to declare it null and void. The parties to it can simply go their separate ways.
However, a petitioner would do well or right to nullify it for avoidance of doubt.
As regards, a voidable marriage, Lord Green in the said case of De Reneville V De Reneville
stated:
“Avoidable marriage is one that will be regarded by every court as a validly subsisting marriage until a
decree annulling it has been pronounced by a court of competent jurisdiction.”
3.5.2 GROUNDS UPON WHICH MARRIAGE IS VOID
The grounds upon which a marriage is void are provided for in sections 32 to 34 of the Marriage
Act Cap 50 of the Laws of Zambia. The Matrimonial Causes Act No. 20 of 2007, simply restates
these ground in section 27 (1), with just an addition of one ground in section 27 (1) (e).
The following are the grounds upon which a marriage is void as provided by the Marriage Act
Cap 50 of the Laws of Zambia in sections 32 to 34of the Act:
(i) Marriage contracted between parties falling within the prohibited degree of kindred or
affinity.
Section 32 (1)(a) provide thus:
32(1) No marriage in Zambia shall be valid-
(a) which if solemnized in England would, under the law relating to prohibited degrees of marriage for the time being
in force in England, be null and void on the ground of kindred or affinity.
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(ii) When either party to the marriage is married by African customary law to any person
other than the person with whom such marriages is had. This is provided for in section 32
(1)(b) of the Act. This provision allows the conversion of a customary law marriage to a
statutory marriage.
(iii) When the parties have not complied with the solemnization requirements. This is
provided for under subsection 2 of section 32 of the Act. The subsection provides thus-:
32 (2) A marriage shall be null and void if both parties knowingly and willfully acquiesce in its solemnization-
(a) in any place other than the officeof a Registrar or a licensed place of worship or a place authorized by the
special licence; or
(b) under a false name or names; or
(c) without the Registrar‟s certificate of notice or special licence having been duly issued; or
(d) by a person not being a licensed minister of some religious denomination of body or a Registrar.
(iv) When either party to the marriage is under the age of sixteen years.
This is provided for under section 33 (1) of the Act. The section provides thus:
33 (1) A marriage between persons either of whom is under the age of sixteen years shall be void:
provided that this section shall not apply when a judge of the High Court has, on application being made, and on
being satisfied that in the particular circumstances of the case it is not contrary to the public interest, given his
consent to the marriage.
The Matrimonial Causes Act No. 20 of 2007, outlines in summary form, the grounds upon which
a marriage is void. This Act does so in section 27 (1) of the Act by providing as follows:
27 (1) A marriage celebrated after the commencement of this Act shall be void on the
following grounds:
(a) that the marriage is not a valid marriage under the provisions of the Marriage Act due to the fact that-
(i) the parties are within the prohibited degrees of consanguinity of affinity;
(ii) subject to the provision to subsection (1) of section thirty- three of that Act, either of the parties was under
the age of sixteen.
(iii) the parties have not complied with the requirements of the Act with respect to the solemnization of the
marriage as specified in subsection (2) of section thirty-two of that act;
(b) that either party to the marriage was lawfully married to some other person at the time of the marriage.
(c) the parties to the marriage are of the same sex.
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This provision in subsection (1)(c) of section 27 of the Matrimonial Causes Act No. 20 of 2007,
is the only new addition to the grounds that make marriage void as provided by the Marriage Act
Cap 50 of the Laws of Zambia.
3.5.3 VOIDABLE MARRIAGE
As has been stated above, a voidable marriage was defined by Lord Green in De Reneville v De
Reneville,27 as:
“A voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a
decree annulling it has been pronounced by a court of competent jurisdiction.”
Nullification of a voidable marriage requires one of the parties to the marriage or an interested
party to take court action to have the court declare the marriage invalid.
3.5.4 GROUNDS UPON WHICH MARRIAGE IS VOIDABLE
The grounds upon which a marriage is voidable are provided for under section 29 of the
Matrimonial Causes Act No. 20 of 2007. This section provides thus:
29. A marriage which is celebrated after the commencement of this Act, not being a marriage that is void shall be voidable
on the grounds that-
(a) the marriage has not been consummated due to the incapacity of either party to consummate it;
(b) the marriage has not been consummated due to the willful refusal of the respondent to consummate it;
(c) either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of
mind or otherwise;
(d) at the time of the marriage either party, though capable of giving a valid consent, was suffering, whether continuously
or intermittently, from a mental disorder within the meaning of the Mental Disorders Act of such a kind or to such an
extent as to be unfitted for marriage;
(e) at the time of marriage, the respondent was suffering from a sexually transmitted disease in a communicable form; or
(f) at the time of the marriage the respondent was pregnant by someone other than the petitioner.
27
(1948) 1 ALL E.R 56 AT 60
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3.5.5 NON –CONSUMMATION
3.5.5.1 INCAPACITY TO CONSUMMATE
Consummation is the first post-marital act of intercourse between the spouses.. Non-
consummation refers to the inability of the spouses to perform the act of intercourse. This failure
may be due to incapacity to consummate or willful refusal to consummate.
As has been seen from the statutory provisions of section 29 of the Matrimonial Causes Act No.
20 of 2007, the non-consummation of a marriage makes the marriage voidable. In addition, the
law recognizes two circumstances when there could be a failure to consummate a marriage. The
first circumstance is that provided in section 29 (a) that is the incapacity of either party to
consummate. This situation can arise in a situation where a party is willing to consummate the
marriage, but they are incapable of consummating it due to some circumstances e.g. physical
incapacity to consummate as was the case in the case of D.E. v A-G.28
In this case, the husband prayed for a declaration of nullity of his marriage with the
respondent who was married to him on the ground that carnal consummation was
impossible by reason of malformation of his wife‟s sex organ. Dr. Lushington dealt with
the point, namely, what exactly is to be understood by the term “sexual intercourse,”
because as he said everyone was agreed that in order to constitute the marriage bond
between two persons, they must be capable, present or to come, of sexual intercourse. Dr.
Lushington stated.
28
(1845) 163 ER 1039 (A)
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“sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse, it does not mean partial
and imperfect intercourse; yet, I cannot go the length of saying that every degree of imperfection would deprive it of
its essential character. There must be degrees difficult to deal with; but if so imperfect as scarcely to be natural, I
should not hesitate to say that legally speaking, it is no intercourse at all …. If there be a reasonable probability that
the lady can be made capable of a ‘vera coupla’ of the natural sort of coitus, though without power of conception I
cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than
incipient, imperfect and unnatural coitus, I would pronounce the marriage void.”
3.5.5.2 WILLFUL REFUSAL TO CONSUMMATE
In addition to the incapacity of either party to consummate the marriage, the Act also provides
for non-consummation of marriage due to the willful refusal of the respondent to consummate it.
This is provided for in section 29 (b).
Willful refusal to consummate the marriage refers to situation, were a party is capable of
consummating the marriage, but they willfully refuse to do so.
In Baxter v Baxter,29
the husband was not allowed by his wife to have sexual intercourse with her unless he had a
contraceptive sheath because she did not want children. Eventually, he sought a decree of nullity
on the ground that his wife had willfully refused to consummate his marriage. Lord Chancellor
Viscount Jowitt ruled that there was no willful refusal to consummate the marriage as
contraception did not prevent consummation. He further stated that the procreation of children
is not a principal end of marriage. Sterility will not prevent consummation.
In the case of D v D,30
the petitioner, a party of an arranged marriage, proved to the satisfaction of the court that at the
time of marriage and ever since, she was unable to consummate her marriage due to invincible
repugnance to the act with her husband.
3.5.5.3 LACK OF VALID CONSENT
29
91948) AC 74
30
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A marriage will be voidable if either party to it did not validly consent either because of duress,
mistake, unsoundness of mind or otherwise. This is provided for in section 29 (c) of the Act.
Lack of genuine consent is common in arranged marriages and is a ground for nullifying such a
marriage if it was under statutory and not customary law.
3.5.5.4 LACK OF VALID CONSENT DUE TO MENTAL DISORDER
A marriage is voidable as provided by section 26 (d) of the Act, if at the time of the Marriage
either party, though capable of giving a valid consent, was suffering, whether continuously or
intermittently, from mental disorder within the meaning of the Mental Disorder Act Cap 35 of
the Laws of Zambia, of such a kind or to such an extent to be unfit for marriage.
3.5.5.5 WHERE RESPONDENT WAS SUFFERING FROM A
COMMUNICABLESEXUALLY TRANSMITTED DISEASE
As provided in section 29(e), a marriage is voidable if at the time of the marriage, the respondent
was suffering from a sexually transmitted disease in a communicable form.
3.5.5.6 WHERE RESPONDENT WAS PREGNANT BY SOMEONE ELSE
As provided by section 29 (f), a marriage is voidable if at the time of the marriage, the
respondent was pregnant by someone other than the petitioner.
3.5.5.7BARS TO NULLIFYING AVOIDABLE MARRIAGE
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Sections 30 and 31 of the Matrimonial Causes Act places some limitations on the powers of the
courts to nullify avoidable marriage. For example, section (30)(1)(a)(b) of the Act bars the court
from nullifying a voidable marriage where one party to the marriage, knowing that the marriage
is voidable and that they have a right to nullify the marriage conduct themselves in a manner that
leads the other party to reasonably believe that party will not nullify the marriage. In addition,
the court is barred from nullifying voidable marriage where doing so will be unjust to the
respondent.
The said section 30(1)(a) (b) provides thus:
30(1) The court shall not, in proceedings instituted after the commencement of this Act, grant a degree 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, so 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 for the decree to be granted.
Further section 30 subsection (2) of the Act bars the court from nullifying certain voidable
marriages unless the proceeding to nullify them are brought within 3 years from the date of the
marriage. These types of voidable marriages are those that are voidable on the ground that:
o either party to the marriage did not validly consentto it due to mistake, unsoundness of
mind or otherwise;
o at the time of marriage either party, though capable of giving a valid consent was
suffering, whether continuously or intermittently, from a mental disorder within the
meaning of the Mental Disorders Act of such a kind or to such an extent as to be unfitted
for marriage.
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o at the time of the marriage the respondent was suffering from a sexually transmitted
disease in a communicable form.
o at the time of the marriage the respondent was pregnant by someone other than the
petitioner.
On the other hand, section 30 subsection (3) bars the court from nullifying a marriage that is
voidable on the basis that at the time of the marriage, the respondent was suffering from a
sexually transmitted disease in a communicable form, unless the petitioner satisfies the court he
was at the time of the marriage ignorant of that fact alleged.
In addition, the said section 30 subsection (3) also bars the court from nullifying a marriage that
is voidable on the basis that at the time of the marriage, the respondent was pregnant by someone
other than the petitioner, unless the petitioner satisfies the court that he was at the time of
marriage ignorant of the fact alleged.
It follows that for a petitioner to succeed on a petition to nullify avoidable marriage based on
grounds that the respondent was suffering from a communicable sexually transmitted disease, or
that the respondent was pregnant by someone else at the time of the marriage, the petitioner must
prove that he was ignorant of these facts at the time of marriage and that the petitioner must
bring the action within 3years from the date of the marriage.
The foresaid provisions of section 30(2)(3) provides thus:
30(2) Notwithstanding subsection (1), the court shall not grant a decree of nullify under section twenty-nine on the
grounds specified in paragraph (c), (d), (e) or (f) of that section unless. It is satisfied that proceedings were
instituted within three years from the date of the marriage.
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(3) Notwithstanding subsection (1) and (2), the court shall not grant a decree of nullity under section twenty-nine
on the grounds specified in paragraph (e) or (f) of that section unless it is satisfied that the petitioner was at
the time of the marriage ignorant of the facts alleged.
Finally, section 31 of the Act bars the court from nullifying a marriage that is voidable on the
basis of incapacity of either party to consummate the marriage unless the court is satisfied that
the incapacity to consummate the marriage also existed at the time when the hearing of the
petitioner 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; and
(c) the respondent refuses to submit to proper treatment for the purpose of curing the
incapacity;
It follows therefore that the court is barred from nullifying a marriage that is voidable on the
grounds of incapacity of either party to consummate the marriage unless the above afore stated
grounds as provided under section 31 of the Act are fulfilled.
The afore said section 31 of the act provides thus:
31 A decree of nullity of marriage shall not be made on the ground that the marriage is voidable under
paragraph (a) of section twenty-nine 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.
5.5.6 EFFECTS OF NULLITY OF MARRIAGE
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According to section 33 subsection (1) of the Matrimonial Causes Act 2007, the effect of nullity
of a voidable marriage is that the marriage is treated as having been valid up to the time of
nullification. In addition, according to subsection (2) of section 33, a decree of nullity nullifying
a voidable marriage does not render illegitimate any child of the parties born or legitimated
during the subsistence of the marriage before nullification.
3.6SUMMARY
This unit looked at what is meant by nullity of marriage. The unit looked at what is called a
voidable and a void marriage. In addition, the unit looked at what at law makes a marriage to be
void and voidable.
3.7ACTIVITIES
(a) Explain the circumstances that makes a marriage voidable.
(b) Explain the circumstances that make a marriage void.
(c) Distinguish a voidable and void marriage from a divorce.
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UNIT FOUR: THE LEGAL EFFECT OF MARRIAGE-STATUTORY
AND CUSTOMARY
4.0 INTRODUCTION
Marriage, whether statutory or civil comes with it some rights and obligations, some of the rights
that come with marriage include the right to maintenance; right to co-habit; right to share in
matrimonial property. This unit introduces the student to the rights and obligations that come as a
result of marriage.
4.1 AIM
The aim of this unit is to introduce the students to the rights and obligations that come along with
the status of marriage
4.2 TIME REQUIRED

4.3 OBJECTIVES
At the end of this unit, the student should be able to outline the rights and obligations that come
along with the status of marriage.
4.4 REFLECTION
Do you think that it is necessary for the law to impose some rights and obligations on married
couples?
4.5THE RIGHT TO CONSORTIUM
Marriage whether statutory or customary, comes with it certain rights and responsibilities. These
rights and responsibilities, just like the conditions and procedures that govern the process of
contracting marriage, are not set by the parties contracting to marry, but are set by the law. It is
equally in this vein that even the rights and responsibilities found in marriage, are set not by the
parties to the marriage but by the law. It follows therefore, that a party can demand from the
other these rights, and should perform for the benefit of another, the particular responsibility that
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is placed on them. It follows therefore that these rights and obligations placed on parties to a
marriage by law are known as the right to consortium.
It is important to note that under the Zambian jurisdiction, the Marriage Act Cap 50 of the Laws
of Zambia is the key statute as regards the law governing the conditions and procedures for
contracting a valid statutory marriage. It follows therefore that once a valid statutory marriage
has been contracted in full fulfillment of the statutory conditions and procedures set by the Act,
the Marriage Act in essence falls off the picture.
Any problems that the parties to the marriage may encounter, will then have to be addressed by
the Matrimonial Causes Act No. 20 of 2007. It is important to state that the Matrimonial Causes
Act No. 20 of 2007 replaced the Matrimonial Cause Act of 1973 when it comes to matrimonial
causes in Zambia. This Act therefore is the key law as regards matrimonial disputes arising out
of a statutory marriage in Zambia. It is this same Act that provides for the rights and
responsibilities of the parties to a statutory marriage, also known as the right of consortium.
The preamble to the Matrimonial Causes Act No 20 of 2007 provides thus:
An Act to provide for divorce and other matrimonial causes; to provide for the maintenance of a party to
a marriage and for the children of the family; to provide for the settlement of property between parties
to a marriage on the dissolution or annulment of the marriage; to provide for the custody or
guardianship of children of the marriage to which the matrimonial proceeding relate; and to provide for
matters connected with or incidental to the foregoing.
As regard parties married under customary law, some provisions of the Local Courts Act Cap 29
of the Laws of Zambia, provide the legal basis of the right to consortium, in addition to African
customary law.
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The following therefore, are some of the rights of consortium of the parties to a marriage,
whether it be statutory marriage or a customary marriage.
4.5.0 Conjugal rights
The parties to a marriage are entitled to conjugal rights. It is common sense that marriage is the
only established institution in which sexual intercourse can be demanded as a right. There is in
fact an implied consent to sex in marriage. In the absence of a good reason, it is unreasonable for
any party to a marriage to deny another sexual intercourse. In fact, if refusal to sex was to
prolong in a marriage, it would lead to unreasonable behavior and be a basis on which divorce
can be granted. Section 9(1)(b) of the Matrimonial Causes Act No. 20 of 2007, provides
unreasonable behavior as a factor upon which divorce can be granted as the basis for the
irretrievable breakdown of marriage.
Equally, it would amount to unreasonable behavior under customary marriage if a party
persistently denied the other party the right to sexual intercourse and this would equally be a
basis for divorce under customary law.
4.5.1 Property rights during matrimony
The parties to a marriage have a right to matrimonial property. Matrimonial property refers to
property that is acquired during the subsistence of the marriage. Property acquired before the
marriage does not generally form part of the matrimonial property. Therefore, no party must
deny the other, the right to matrimonial property. It is in recognition of the right to matrimonial
property that the law has provided mechanism on the basis of which matrimonial property will
be shared. The law providing for the sharing of matrimonial property among the parties to the
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marriage upon divorce is provided for under section 55 of The Matrimonial Causes Act No. 20
of 2007, as regards a statutory marriage. As regards customary marriage, section 35 of the Local
Courts Acts Cap 29 of the Laws of Zambia has superseded provisions of customary law that are
inconsistent with this said section of the Local Courts Act, when it comes to sharing matrimonial
property upon divorce under customary law.
The said section 55 of the Matrimonial Causes Act No. 20 of 2007, as regards a statutory
marriage, and sharing of matrimonial property between the parties to the marriage provides in
part as follows:
55 (1) The court may, upon granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or
at any time thereafter, whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree
or is made absolute, make any one or more of the following orders:
(a) an order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as the
court many specify in the order for the benefit of such a child, such property as may be specified in the order, being
property to which the first-mentioned party is entitled, either in possession or reversion;
(b) an order that settlement of such property as maybe specified, being property to which a party to a marriage is entitled,
to be made to the satisfaction of the court for the benefit of the other party to the marriage and of the children of the
family or either or any of them;
(c) an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them
any ante-nuptial settlement, including a settlement mad by will or codicil, made by the parties to the marriage.
As regards the customary marriage and the sharing of matrimonial property upon divorce, the
said section 35 of the Local Courts Act Cap 29 of the Laws of Zambia provides as follows:
35 (1) Subject to the provisions of this Act or of any other written law, and to the limitations imposed by its court warrant a
local court, in cases of a civil nature may……..
(f) make any other order which the justice of the case may require; and may make any combination of the above orders
…….
The above provision is usually used by local court magistrates, as the basis for making an order
for settlement of property (sharing of matrimonial property) upon the dissolution of a customary
marriage through divorce.
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4.5.2 The right to maintenance
The right to maintenance is yet another right to consortium under marriage. A party to a marriage
who is in a weaker financial position is entitled to reasonable maintenance provision from the
party in a better financial position. It is in fact an offence under the Penal Code Cap 87 of the
Laws of Zambia for a spouse to neglect to maintain a spouse or the family. As regards statutory
marriages, the general rules are that it does not matter which party to the statutory marriage is in
a better financial position. The position as regards statutory marriages is that whether it is the
woman or the man who is in a better financial position the general rule is that the party in a better
financial position should maintain the other party who is in a weaker financial position.
Though this is the general rule, as regards maintenance of spouses in a statutory marriage, it is
important to state that according to the Matrimonial Causes Act No. 20 of 2007, there is a limit
as regards circumstances when a wife will maintain a husband. This limit is set by the provisions
of the Matrimonial Causes Act No. 20 of 2007, as provided in section 58 (1) of the said Act. The
Act limits the circumstances when a wife will be obliged to maintain her husband only in
circumstances where a husband is unable to earn an income due to old age, illness or disability of
mind or body.
It can be suggested that this provision could have been crafted by Parliament when enacting this
Act, with the view in mind, that under Zambian customary laws, and generally African
customary law, it is the man that maintains his wife.
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The said section 58 (1) of the Matrimonial Causes Act No. 20 of 2007 as regards the said
maintenance of parties to the marriage provides thus:
58 (1) Either party to marriage may apply to the court for an order under this section on the ground that the
respondent-
(a) being the husband, has willfully neglected-

i. to provide reasonable maintenance for the applicant; or
ii. to provide or to make a proper contribution towards, reasonable maintenance for any child of the family
to whom this section applies; or
(a) being the wife has willfully neglected to provide, or to make a proper contribution towards, reasonable
maintenance-
(i) for the applicant in a case where, by reason of the impairment of the applicant‟s earning capacity
through age, illness or disability of mind or body, having regard to any resources of the applicant
and the respondent respectively which are, or should properly be made, available for the purpose,
it is reasonable in all the circumstances to expect the respondent so to provide or contribute; or
(ii) for any child of the family to whom this section applies.
As regards the maintenance of a party to a customary marriage, customary law places the man as
having the responsibility to maintain his wife and it is in fact a shame under customary law for
an able bodied man to demand that his wife should maintain him. This notwithstanding, it can be
argued that nothing stops local court magistrates to order a wife to maintain her husband if the
justice of the case requires so as provided in the above cited section 35(1)(f) of the Local Court
Act Cap 29 of the Laws of Zambia.
It can therefore be seen that the right of one party to a marriage to demand maintenance provides
a reciprocal responsibility on the other to provide maintenance for that party who is demanding
maintenance.
4.5.3 Right to co-habit
The parties to a marriage are entitled to co-habit with each other, that is they have a right to live
together with each other. It follows that the absence of any good reason for one party to cease
living with the other, amounts to desertion of the other party. In fact, if desertion was to prolong
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in a marriage, it would be the basis of divorce based on the factor of desertion as provided under
section 9 (1)(c) of the Matrimonial Causes Act No. 20 of 2007, in respect of statutory marriages.
In addition, prolonged desertion would equally be the basis for divorce under statutory marriage
on the basis that the parties have lived apart for a continuous period of at least five years as
provided under section 9(1)(e) of the Matrimonial Causes Act No. 20 of 2007.
Equally, under customary law, desertion of either party by the other is a ground for dissolution of
a customary marriage through divorce.
4.5.4 Right to procreation
The parties under a marriage whether it be a statutory or customary marriage, have a right to
procreation. It follows therefore that the denial by one party of the other of the right to
procreation amounts to unreasonable behavior and hence a basis for dissolution of marriage
through divorce. An example of circumstances where a party will be regarded as denying the
other party the right to procreation would be circumstances where a party to a marriage without
the consent of the other party puts in place measures that prevent procreation, such as using
family planning or condoms without the consent of the other party.
Under customary law failure to procreate is a ground for divorce especially if the failure to create
is that of the woman.
It must be noted though bearing children is not generally the reason for marriage, marriage itself
does however confer the right to procreation to the parties.
It can therefore be stated that the above foregoing rights to consortium in marriage are not the
only rights and responsibilities that are attached to marriage. There are several other rights and
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responsibilities that are attached to marriage. The above list is not exhaustive, but mutely
illustrative of the rights attached to marriage.
4.6 SUMMARY
This unit looked at the rights and obligations that come along as a result of marriage.
4.7 ACTIVITIES
(a) Explain what is meant by the term right to consortium?
(b) Are the rights and obligations under civil marriage the same like those under
customary marriage?
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UNIT FIVE: BREAK DOWN OF MARRIAGE
5.0 INTRODUCTION
Marriage is dissolved through what is known as divorce. This unit looks at the dissolution of
marriage through divorce. The unit will look at dissolution of a civil and customary marriage and
the grounds for divorce both under civil and customary marriage
5.1 AIM
The aim of this unit is to introduce the student to the concept of divorce under both civil and
customary marriage as well as the grounds for divorce under civil and customary marriage.
5.2 OBJECTIVES
At the end of this unit the student should be able to distinguish between divorce under civil
marriage and under customary marriage.
5.3 TIME REQUIRED

Minimum amount of time on this unit is four hours.
5.4 REFLECTION
Do you think that it is necessary for the law to regulate divorce?
5.5 DIVORCE
5.5.1 STATUTORY MARRIAGES
Divorce is a matrimonial cause concerned with the dissolution of marriage on the ground that the
marriage has broken down irretrievably. A marriage is terminated by divorce order upon proof
that there was a valid marriage between the parties. A civil marriage can only be terminated by
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way of divorce by the High Court upon proof that there was marriage between the parties. The
petition for divorce must be accompanied with a marriage certificate to act as proof that the court
is dealing with a valid civil marriage. Where the marriage is a customary one, the parents should
prove that the marriage was valid by proof of consent and the payment of lobola that were made
to validate the marriage.
5.5.1.1JURISDICTION OF THE HIGH COURT IN DIVORCE AND OTHER
MATRIMONIAL CAUSES
It is important to note that the High Court of Zambia is the first court of instance in any
proceedings for divorce or nullity of a statutory marriage as well as any matrimonial causes
arising under statutory or civil marriage. In addition, the High Court‟s jurisdiction in divorce and
matrimonial causes and related matters, must be exercised only in accordance with the provisions
of the Matrimonial Causes Act No. 20 of 2007. This entails that the matrimonial Causes Act
1973 of England has ceased to apply to Zambia. This is provided for in section 4 of the
Matrimonial Causes Act No. 20 of 2007.
Furthermore, the High Court has jurisdiction in proceedings for divorce or for a decree of nullity
of marriage when 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 so resident for a period not less than twelve months immediately preceding that
date.
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This power of the High Court in divorce and other matrimonial causes is provided for in section
4 of the Matrimonial Causes Act No. 20 of 2007.
It follows therefore that the implications of the said section 4 of the Matrimonial Causes Act No.
20 of 2007 is that the High Court is the court of instance in divorce, nullity of marriage, as well
as other matrimonial causes arising under statutory marriages. In addition, the High Court has
jurisdiction to grant divorce or nullify in any statutory or civil marriage solemnized outside
Zambia provided that either party to the marriage is domiciled in Zambia at the date of the
commencement of the proceedings or where either party is resident in Zambia at the date of the
proceeding, and has been ordinarily so resident for a period of not less than twelve months
immediately preceding that date.
The said section 4 of the Matrimonial Causes Act No. 20 of 2007 provides thus:
4 (1) The High Court, herein after referred to as „the court‟ shall have and exercise, subject to the provisions of
this Act, jurisdiction and power in relation to matrimonial causes instituted or continued under this Act.
(2) Notwithstanding subjection (1) of section eleven of the High Court Act or any other written law, the
jurisdiction of the court in divorce and matrimonial causes and related matters shall, after the
commencement of this Act, be exercised only in accordance with the provisions of this Act.
(3) the court shall have jurisdiction in proceedings for divorce or for 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 so
resident for a period of not less than twelve months immediately proceedings that date
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5.5.1.2RESTRICTION ON PETITION FOR DIVORCE WITHIN ONE YEAR OF
MARRIAGE
Section 6 (1) of the Matrimonial Causes Act No. 20 of 2007, bars the bringing of any petition for
divorce within one year of the date of the marriage. The section provides thus:
6 (1) No petition for divorce shall be presented to the court unless, at the date of the presentation of the petition,
one year has passed since the date of the marriage.
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.
5.5.1.3GROUND FOR DIVORCE
In the current civil law, there is only one ground or the basis on which divorce maybe granted;
that the marriage has broken down irretrievably.
This ground for divorce is provided for under section 8 of the Matrimonial Causes Act No. 20 of
2007. This section provides thus:
8 A petition for divorce maybe presented to the court by either party to a marriage on the ground that the
marriage has broken down irretrievably.
5.5.1.4FACTORS THAT PROVE THE BREAKDOWN OF MARRIAGE
In order to establish irretrievable breakdown of marriage, one or more of the five factors as
provided under section 9 (1) of the Matrimonial Causes Act No. 20 of 2007 must be proved. The
said section 9 (1) of the Act provides thus:
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9 (1) For the purposes of section eight, 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:
(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 be 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, subsection 2 of section 9 provides thus:
(2) On a petition for divorce it shall be the duty of the court to inquire, so far as it can reasonably do into the
facts alleged by the petitioner and into any facts alleged by the respondent.
Subsection 3 of section 9 provides thus:
(3) If the court is satisfied on the evidence of any fact mentioned in sub section (1),
then, unless it is satisfied on all the evidence that marriage has not broken down
irretrievably, it shall grant a decree of dissolution of marriage.
Subsection 4 of section 9 provides thus:
(4) 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.
It is important to note the following from the above provisions of section 9 of the Act:-
(a) That anyone or a combination of the factors provided in subsection (1) of section 9 may be
relied upon to prove irretrievable break down of marriage.
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(b) That according to Sir B McKenna,31 he described irretrievable breakdown of marriage as a
marriage which stood no chance because the parties to the marriage have ceased cohabiting
and one of the parties (or both) intends not to resume cohabitation.
(c) That if there is anything inconsistent with “retrievable breakdown of marriage,” then the
condition has not been met.
For the condition of irretrievable breakdown to be fulfilled, the marriage must have broken down
irretrievably based on one or a combination of the factors in subsection 1 of section 9. Where the
marriage has broken down irretrievably, but not on the basis of one or a combination of the
aforesaid factors, then the condition has not been met and the court should not dissolve the
marriage.
This was the case in Buffrey v Buffrey.32
In this case, the court of appeal of England held that although the marriage has irretrievably broken down, bad behavior had not
been established. The parties had been married for more than 20years. They had grown apart, had nothing in common and could
not communicate. The court of appeal accepted that the marriage had irretrievably broken down, noting also that the husband
had been insensitive about money matters. But this was not sufficient, to establish that these had caused the “irretrievable
breakdown” of the marriage. The petition for divorce was accordingly refused.
In Stevens v Stevens, 33 judge Sheldon concluded that the marriage had irretrievably broken
down not because of the respondent‟s conduct, but that of the petitioner. It was held that the
condition for irretrievable breakdown of marriage warranting the court to dissolve the marriage
had not been fulfilled. This is because the conduct complained of should have been that of the
respondent and not that of the petitioner to warrant dissolution of marriage, as provided by the
law. The petition was therefore dismissed.

31
Modern Law Review, Volume 30 No. 23 p19
32
(1988) 2FLR 365
33
(1979) 1 WLR 885
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(d) that the standard of proof of irretrievable breakdown of marriage is on the balance of
probabilities. This is stated in the Supreme Court of Zambia cases of Malama v Malama34
and Mahande v Mahande.35
(e) that on a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably
can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
(f) that if the court is satisfied on the evidence of any fact mentioned in subsection (1) of section
9 of the Act, then, unless it is satisfied on all the evidence that the marriage has not broken
down irretrievably, it shall grant a decree of dissolution of marriage.
(g) that 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.
(h) that every decree of divorce shall however be in the first instance to be a decree nisi36and that
a decree nisi absolute can only be granted six weeks later as provided under sections 41, 42,
43 and 44 of the Act.
It is important to note that the intervening period of six weeks between a decree nisi and a decree
nisi absolute is necessary because the court always respects the sanctity of marriage, the courts
entertain a possibility of reconciliation and therefore in the event that the parties are able to
reconcile before a decree absolute is granted, then it shall not be granted.
34
(2000) Supreme Court of Zambia, Appeal No. 84 of 2000
35
(1976) ZR 287
36
A decree nisi is a provisional decree of divorce of divorce pronounced when the court is satisfied that a
petitioner has met the legal and procedural requirements to obtain a divorce. Following the pronouncement of
decree nisi, the marriage still exists, and the parties are not yet ‘divorced’. The petitioner must then wait at least
six weeks and one day after the pronouncement of the decree nisi before making their implicating for the decree
absolute. The decree absolute is the final decree which actually dissolve the marriage. Once this has been granted,
the parties are “divorced”.
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In addition, this period is necessary in that it gives the parties enough time to address such issues
as property settlement, maintenance of parties and proper arrangement relating to the welfare of
children of the divorcing couple. If for instance, no arrangement has been made with regard to
the children, then a decree absolute will not be granted as provided in section 42 of the Act.
5.5.1.5 CLOSER EXAMINATION OF THE FACTORS FOR IRRETRIEVABLE
BREAKDOWN OF MARRIAGE
(a) Divorce Based on Adultery
For divorce based on adultery, the petitioner must prove that there was or there must have been
sexual intercourse between the respondent and another person who must be cited, as provided by
section 10 of the Act, and the petitioner must show that because of the adultery, she/he finds it
intolerable to live with the respondent.
Both requirements must be proved and must not be independent of each other. That is, the
petitioner must prove both the fact of adultery and the person with whom the adultery was
committed. The petitioner must find it intolerable to live with the respondent as a direct
consequence of the adultery, and not for some different reason. It is for this reason probably that
section 12 of the Act bars a petitioner from relying on adultery committed by the respondent if
after it became known to the petitioner that the respondent had committed adultery, the parties
have lived with each other for a period exceeding, or periods together exceeding, six months.
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In the case of Caroline Sikazwe v Ian Sikazwe(respondent) and Jenifer Nkonde (co-
respondent),37
Caroline Sikazwe petitioned for divorce on the ground that the marriage had irretrievably broken down on account of the
respondent‟s adultery with Jenifer Nkonde, co- respondent, and she found it intolerable to live with him. The petition was not
contested, and the marriage was dissolved.
Claim for damages on divorce based on adultery
It is important to note that section 11of the Act allows a petitioner, whether husband or wife, to
claim for damages on divorce based on adultery, from the person with whom the respondent
committed adultery with.
However, the section provides that the petitioner shall not be paid the damages where the
petitioner condoned the adultery of the respondent with that person, and in addition, the damages
shall not be payable if the marriage is not dissolved on the ground of the adultery of the
respondent with that person. In addition, damages are not payable if the act of adultery was
committed more than three years before the date of the petition.
The said section 11 provides thus:
11 (1) A party to marriage, whether a husband or wife, 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 the 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.
(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 on the
ground of the adultery of the respondent with that person, or on grounds including that ground, is not made.
37
(1983) HP/D 78
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(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, if it thinks fit,
direct that they shall be settled for the benefit of the respondent or the children of the family.
(b) Behaviour
The second factor is that the respondent has behaved in such a way that the petitioner cannot be
reasonably be expected to live with the respondent. In the past, behaviour was taken to be
conduct that amounted to cruelty causing injury or damage to health as held in the cases of
Coetzee v Coetzee,38 Venter v Venter and Joubert,39 and Howard v Howard,40 which cases
are said to have set bad precedents by holding that behaviour had to amount to cruelty causing
injury or danger to health.
Behaviour refers to the conduct of the respondent. The section refers to whether the petitioner
can reasonably be expected to live with the respondent in light of his/her behaviour.
Passingham in Law and Practice in matrimonial causes states as follows as regard behaviour that:
“The courts have refrained from any attempt at an exhaustive definition of behaviour…each case raises
a question of fact and degree and may depend on the personalities of the parties.”
“The phrase cannot reasonably be expected to live with the respondent poses an objective test… but the
words the ‘petitioner’ and the ‘respondent’ do not refer to ordinary reasonably spouses who are placed
in that person, but to the actual persons parties.’ 41
In the Supreme Court cases of Mahande V Mahande,42Cullian, AJS in reference to behaviour
stated thus:
38
(1965) ZR 89
39
(1966) ZR 60
40
(1967) ZR 47
41 rd
Passingham.Law and Practice in Matrimonial Causes (3 Ed) London: Butter Worths (1979) PP23-23
Page | 60
“I have to consider not only the behaviours of the respondent as alleged…but the character, personality,
disposition and the behaviour of the petitioner. The general question may be expanded thus: can this
petitioner with his or her character and personality, with his or her faults and other attributes, good and
bad and having regard to his or her behaviour during the marriage, reasonably be expected to live with
this respondent.”43
It follows therefore that the behaviour complained of must be that of the respondent. The
question is not whether the behaviour complained of is unreasonable to expect the petitioner to
live with the respondent. This means that the test must be subjective. This is so in that it might
not be reasonable to expect one petitioner to put up with behaviour which it would be reasonable
to expect another petitioner to tolerate.
Though behaviour is a subjective issue, it is important to note that section 13 of the Act bars a
petitioner from relying on behaviour where the petitioner has lived with the respondent for a
period or periods exceeding six months after the date of the occurrence of the final incident or
behaviour on which the petitioner is relying on. This was the position in the case of Dr. H.W
Bwanausiv Ethel Bwanausi.44
In this case, the court held that irretrievable breakdown of marriage had not been proved. Dr. Bwanausi petitioned for divorce
alleging, inter alia, that the wife was an informer during the struggle for Malawi‟s independence. The husband was a national of
Malawi and he was an active freedom fighter. These actions of the wife being an informer happened about 24or 25years
previously but the marriage limped on and subsisted until 1983 when the husband alleged that the respondent (wife)‟s behaviour
was such that he could no longer be reasonably be expected to live with her, he further alleged that the wife assisted and
supported their daughter‟s marriage to a man he did not approve of. The court dismissed the petitioner.
(c) Desertion
42
(1976) ZR 287
43
Ibid at page 293
44
(1983) HPD 19
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Desertion is the third factor. Desertion occurs where a respondent voluntarily and without
reasonable cause abandons the petitioner against his or her will and with intention of
permanently ending the cohabitation.For desertion to prevail, four elements must exist, namely:
(i) the de facto separation of the spouse for at least two years;
(ii) the animus deserandi- this is the intention on the part of the spouse in desertion to remain
separated permanently;
(iii)the absence of consent on the part of the deserted spouse; and
(iv) the absence of any reasonable cause for withdrawing from cohabitation on the part of the
deserting spouse.
Desertion may also occur as a result of constructive desertion, as provided by section 14 (1) of
the Act. Construction desertion occurs when the respondent behaves in such a manner as to
compel the petitioner to leave the matrimonial home against his or her wish. The said section 14
subsection 1 of the Act on constructive desertion provides thus:
When the petitioner alleges constructive desertion, the operative period is two years.
14(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
willfully 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.
Generally, desertion is related to separation, though the two are not the same. This is so in that in
desertion generally, the parties are actually physically separated from one another, while with
separation, the parties may not actually be physically living apart. This is because, it is possible
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for parties to be on separation yet living together under the same roof, as was the case in Hope v
Hope.45
In this case, the spouses were living in the same matrimonial home, but they slept in separate bedrooms and the wife refused to
do domestic work for the husband, but they ate meals. Lord Denning held that the parties were on separation with consent, and
that there was no desertion by a party of the other.
Notwithstanding what has been stated above, the court in Fuller V Fuller 46 held that there was
desertion in that case notwithstanding that the parties were living under the same roof. The case
was decided in this manner because of its particular circumstances.
In this case, the husband and wife were married in 1942 and lived in the matrimonial home in Corydon until 1964 when the wife
left the husband taking the two children of the marriage with her, and went to live with P as his wife at the house in South
Norwood. The husband remained in the matrimonial home. In 1968, the husband became ill with coronary thrombosis. His
doctor told his wife that he must not live on his own and that he had only about a year to live, so on his discharge from the
hospital in October 1986 the husband went to live at P‟s house. He lived there as a lodger paying a weekly sum. The wife and P
slept together, and the husband slept in a separate bedroom.
The wife got his meals, which she ate with the family and did his washing, but they clearly treated the marriage as at an end. The
husband lived thus in P‟s house for four years. In April 1972, the wife petitioned for divorce under section 2(1) (e) of the Divorce
Reform Act 1969 on the fact that she and the husband had “lived apart” for a continuous period of five years preceding the
petition. The husband consented to a divorce. The judge dismissed the petition on the ground that the parties were not living
apart during the period when the husband was living at P‟s house.
On appeal, it was held that the husband and wife were “living apart” within section 2(1) (e) while the husband lived at P‟s house
because they were not “living with each other in the same household” within the meaning of section 2 (5)(b); the words “with
each other” meant living with each other in that sense since the wife was living with P‟s as his wife and the husband was living
in the house as lodger. The court accordingly allowed the appeal and granted the decree nisi.
(d) Living apart for a continuous period of two years
This factor is referred to in the section 9 (d) of the Act and it refers to living apart by parties to a
marriage for a continuous period of atleast two years immediately before the presentation of the
petition and the respondent must consent to the decree being granted.
45
(1948) ALL ER 920
46
(1973) 2 ALL ER 650
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As has been demonstrated above, „living apart‟ under the same roof had been difficult to satisfy
the test of irretrievable breakdown of marriage, until the decision of Fuller V Fuller cited above,
where Lord Denning held that it could be construed as „living apart‟ in certain circumstances
even though the parties were living under the same roof as was the case in Fuller V Fuller.
What is important to note under this factor is that the respondent has the right to the decree being
granted as provided under the subsection and that he/she has the right to withdraw the consent at
any time before the pronouncement of the decree. The consent has to be freely given, and the
respondent must have the same mental capacity as at the formation of marriage.
This provision is a functional recognition that marriage is a contract from which the parties
should be freed if the substratum of the relationship, that is, mutual love and understanding,
disappear. The subsection provides for a form of divorce by consent of the parties, spouse may
lawfully agree to a separation with a view to divorce.
(e) Living apart for a continuous period of five years
This factor is provided for in section 9 subsection (e), and requires that the parties to the
marriage must have lived apart for a continuous period of atleast five years immediately
preceding the presentation of the petition. Where a divorce is based on this fact, it is irrelevant in
what capacity a party petitions. The petition can be made by the deserting spouse or the deserted
spouse.
On a petition under this subsection, however, the court has an overriding discretion to refuse to
grant a decree if the respondent opposes it and the court is of the opinion that the dissolution of
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the marriage will result in grave financial or other hardship to the respondent and that in all the
circumstances, including the conduct of the parties to the marriage and the interest of the parties
and of any child or children of the marriage or other persons concerned, it would be wrong to
dissolve the marriage. This is provided in section 18 of the Act.
The section provides thus:
18(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 divorce is opposed under this section, then-
a) if the court finds that the petitioner is entitled to rely in support of the respondent‟s petition on the fact of five
year‟s separation and does not rely on any other fact mentioned in subsection (1)of section nine, and
b) if 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 any
children or other persons concerned and if the court is of the opinion that the dissolution of the marriage will
result in grave financial or other hardship to the respondent and that it would in all the circumstance be
wrong to dissolve the marriage it shall dismiss the petition.
(3) For the purposes of this section, hardship shall include the loss of the chance of acquiring any benefit which
the respondent might acquire if the marriage were not dissolved.
Another question that may arise in divorce based on the fact 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 is whether the subsection covers only a unilateral and consensual separation and
also a separation which is enforced, say by operation of law. The issue essentially is whether the
separation is to be attributed to a state of estrangement between the parties or whether it requires
one to look only at the facto separation, unmindful of the reasons that have caused the parties to
live apart. If the latter view be correct then it would follow that a political detainee who has been
in detention for a continuous period of five years could find himself divorced. And a similar fate
could await a student who goes abroad for over five years. It should be noted that the
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interpretation of the subsection, is that the living apart covers only those circumstances where the
living apart has been caused by the estrangement of the parties. It does not cover such
circumstances as those illustrated above, of a political detainee, or student who goes abroad for
studies.
It is possible that a marriage may break down irretrievably, where a party to a marriage has been
taken in as a political detainee or where a party goes abroad for studies, as illustrated above.
However, as stated, such circumstances would not be basis for invoking the provision “living
apart” for a continuous period of five years. The overall effect of the Matrimonial Act No. 20 of
2007 is that whenever spouses live apart within the meaning of the Act, it is in consequence of
their being estranged. It is for this reason that section 25 of the Act ensures that no efforts are to
be spared to help effect reconciliation between parties to a divorce petition, based on any of the
factors for divorce, including the factors that are based on estrangement such as desertion and
separation.
In conclusion, it has been seen that the factum of the parties‟ separation must in all cases be
referable to the estrangement between them in order for section 9 subsection (e) of the Act to be
successfully invoked.
5.5.2 DIVORCE UNDER CUSTOMARY LAW
It is important to note that this account of divorce under customary law is extracted from Lillian
Mushota‟s book.47
47
Lilian Mushota. Family Law in Zambia: Cases and Materials, Lusaka. UNZA Press
Page | 66
A customary marriage comes to an end after families of both parties have made several attempts
to counsel and reconcile them. The families are fully involved in the processes of marriage as
well as of divorce. If the parties wish, they may proceed to a traditional court or to a local court
for the dissolution. In both courts, parents of the parties, particularly of the woman, are required
to confirm that the parties were actually married by explaining matters of consent, and marriage
payments (Lobola). This is similar to the procedure in the High Court, as there must be proof of
marriage through production of the marriage certificate before the Petition can be accepted for
filing.
5.5.3 Grounds for divorce under customary marriage

The grounds for divorce under customary law are many and vary from one ethnic group to
another. Most of them are weak and frivolous while the more serious ones are in many ways
similar to the factors that are relied upon to dissolve a civil marriage. The grounds include
adultery, cruelty, childlessness, not providing for the family, excessive drinking, desertion, to
name only some.
5.5.4 Adultery
A traditional court does not generally entertain a divorce petition by a wife on the adultery of her
spouse. A husband is allowed to have extra – marital relationships because the marriage is
potentially polygamous and the man has a right to marry additional wives. Thus a wife would
not call upon a local court to grant her a divorce on account of her husband‟s adultery. A
research on Gender Bias in Courts in 1993/4 showed that of the sampled women in six provinces
of Zambia who had petitioned for divorce in local courts, 100% had their petitions thrown out for
the reason that the men had not committed actionable offences.
A husband may however, divorce an adulterous wife. A wife may also divorce the husband for
persistent adultery which brings shame on her or otherwise prejudice her interests.
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5.5.5 Behaviour
Conduct that amounts to unbecoming behaviour includes violence against the wife or children of
the family or both, refusal or neglect to provide adequate food, shelter, clothes, use of abusive
language in the presence of children, in – laws or outsiders, denial of conjugal rights, nagging,
quarrelsome, greed, dislike of the other spouse‟s relatives.
Customary law allows men to chastise wives for wrong doing, and they may not petition except
in cases of severe beatings occasioning actual bodily harm e.g. loss of pregnancy.
5.5.6 Desertion
Desertion is a new phenomenon relatively that came about by virtue of colonial policy which
took men away from their villages to urban areas where they provide cheap labour. Desertion
means abandoning one‟s family and willfully neglecting to provide for them. A woman may
petition and she will get support from her family.
5.5.7 Separation
This takes the form of a wife being sent back to her family for a „refresher‟ course in marriage
while she is with her family. Marriage counselors (bana chimbusa) teach her afresh about
married life, after which, if the complainant was genuine, the man arranges to have his wife
back. If it was just an excuse, the formalities for divorce are done, which include packing her
belongings and delivering them to her uncle‟s (or other relative) house.
5.5.8 Childlessness
In customary law, procreation is the basis for marriage. In the past a typical Zambian family
took pride in a large number of children, of ten or more. In some ethnic groups men became
polygamous in order to have a large investment in the children: an important source of labour.
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If the party unable to procreate discovers that it is the other spouse who is impotent or unable to
produce children, he or she can petition for divorce. A woman may then petition. In the case of
a man, he is secretly given by his in-laws a young sister or niece (or other near relative) to
produce children. The assumption is usually that it is the woman who is infertile.
5.5.9 Illness
Generally a husband has an obligation to care for the wife and family during her illness. In cases
of serious or prolonged illness, however, her family will remove her from the matrimonial home
and look after her. If the illness persists her family will usually give the husband her young
sister or near relative as an additional wife.
If the husband neglects to look after a sick wife, she is entitled to divorce him.
5.5.10 Laziness
Marriage imposes duties and obligations on the parties. A spouse who neglects, fails or refuses
to adequately perform those duties can be divorced. The duties referred to herein relate to
providing food for the family e.g. by going out to hunt or fish, thatching a leaking roof,
providing adequate shelter and security to the persons and property, tilling land and growing
food crops, cooking properly and doing other household chores timely and efficiently. A wife
who falls ill and fails to perform household chores may be divorced. In any case, most ethnic
groups take an ill wife to her parents to be nursed, and may be divorced if the illness is
prolonged. In particular, a person may be divorced for illness such as insanity, epilepsy and
leprosy.
5.5.11 Below is a list of grounds of divorce available to a husband
Disobedience of wife
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Childlessness
Greed and selfishness
Adultery
Laziness
Witchcraft
Disrespect to in – laws
Illness from a communicable disease such as HIV / AIDS, STDs;
fits.
Rigidity
5.5.12 The following is a list of the grounds of divorce available to a woman.
Cruelty and violence
Impotence
Insanity, epilepsy or leprosy
Laziness / negligence / inability to provide the family with necessaries
Persistent adultery
Habitual criminality
Adultery with wife‟s relatives
Favouring one of his wives in a polygamous marriage.
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5.6SUMMARY
This unit looked at the issue of divorce under civil and customary marriages. In addition, the unit
looked at the grounds for divorce under both civil and customary marriage.
5.7ACTIVITIES
(a) What is meant by divorce and are the grounds for divorce under civil and customary
marriage the same?
(b) In your view, do you think it is not easy to obtain a divorce under civil law? Why do you
think so?
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UNIT SIX: FINANCIAL RELIEF FOR SPOUSES AND CHILDREN,
PROPERTY RIGHTS AND CUSTODY OF CHILDREN
UPON BREAKDOWN OF CIVIL AND CUSTOMARY
MARRIAGE
6.0 INTRODUCTION
It has been demonstrated in unit five that there are possibilities that a marriage may breakdown
and hence be dissolved through what is known as divorce. This unit looks at the legal
consequences that follow divorce.
6.1 AIM
The aim of this unit is to bring to the knowledge of the student, ofsome of the legal consequences
that follow divorce.
6.2 OBJECTIVES
At the end of this unit, the student should be able to demonstrate an understanding of all the
consequences that follow a divorce.
6.3 TIME REQUIRED

6.4 REFLECTION
What do you think are the consequences of divorce according to you?
6.5 MAINTENANCE
6.5.1 MAINTENANCE, PROPERTY SETTLEMENT AND CUSTODY OF CHILDREN

UPON BREAKDOWN OF A STATUTORY MARRIAGE OR CIVIL MARRIAGE
Page | 72
It is important to begin by stating that there have been tremendous developments in the law of
divorce as regards the issues of maintenance, property settlement and custody of children. As
regards statutory marriage, before the land mark case of Watchel V Watchel48 the divorce law
was such that the guilty party or the party responsible for causing the divorce was not to be
entitled to maintenance, property settlement or the custody of the children. However, following
reforms in the statutory laws of England between 1968 and 1970, reforming the law on divorce
and the ancillary reliefs that follow divorce, which statutory provisions, the case of Watchel v
Watchel was based on, guiltiness or blameworthiness of a party to the marriage is no longer a
factor when it comes to making an order regarding maintenance, property settlement or the
custody of the children. According to Watchel v Watchel, the court should decline to award
financial support or maintenance, or reduce the maintenance which it would otherwise have
ordered, only in cases where the conduct of one party is „both obvious and gross‟ so much so that
to order one party to support another whose conduct falls into this category is repugnant to
anyone‟s sense of justice. The view taken by the court in Watchel V Watchel was that in most
cases of divorce, both parties are to blame or that both parties contribute to the breakdown of a
marriage. The court was of the view that divorce is a misfortune that befalls both parties.
It is important to mention that even the Matrimonial Causes Act No. 20 of the Laws of Zambia,
being the law that regulates issues of maintenance, property settlement and custody of children
upon divorce of a statutory marriage, is based on the said reformed divorce law of England. This
is so in that the Act does not recognize issues of the guiltiness or blame worthiness of a party to
the marriage as regards the divorce, as factors which the court must take into consideration in
deciding on the issues of maintenance, property settlement or custody of children.

48
(1973) farm 72 Court of Appeal
Page | 73
Section 56 (2) of the Act however, provides that in making a maintenance order in favour of a
former spouse or child of the family, the court should have regard to the conduct of the parties.
This provision should be interpreted by the court in line of Watchel v Watchel case, as regards
the interpretation of the conduct of the parties.
6.5.2 MAINTENANCE OF A SPOUSE AND CHILDREN OF THE FAMILY UPON THE

BREAKDOWN OF A STATUTORY MARRIAGE.
6.5.2.1Maintenance of a former spouse by the other upon the breakdown of a statutory
marriage
After divorce or nullity of a statutory marriage, the parties may proceed with applications for the
maintenance of a former spouse or a child or children of the family. It is important to state that
the Matrimonial Causes Act No. 20 of 2007 provides for maintenance of a former spouse to a
marriage who is in weaker financial position by the former spouse who is financially sound. The
maintenance is made by the party who is financially sound to the party who is financially weak.
It does not matter whether the party that is financially sound is the woman or the man. All that
matters is that the party in a strong position is obliged to maintain the party in a weaker position.
Therefore, under the Act, a former wife can maintain the former husband, if the former wife is
the party in a stronger financial position.
The idea of maintenance of a former spouse by a former spouse is meant to ensure that the
former spouses continue to enjoy a standard of living commensurate to the one they were
accustomed to during the subsistence of the marriage.
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The maintenance orders that the court can make for the maintenance of a former spouse by the
other can take various forms such as a periodical payments order, or a secured periodical
payment order. In addition, the order can be in form of a lump sum payment or lump sums
payments. Lump sum payment denotes payment of lump sum in installments.
These provisions for maintenance of a former spouse by the other are provided for under section
54 (1) of the Matrimonial Causes Act No. 20 of 2007.
The section provides as follows:
54(1) The court, in exercising its powers under this part, upon granting a decree of divorce,
a decree of nullity of marriage or a decree of judicial separation or at any time thereafter, whether, in the case of
decree of divorce or of nullity of marriage, before or after the decree is made absolute, may do any or all of the
following:
(a) order that either party to the marriage shall make to the other such periodical payments, for such period, as may
be specified in the order;
(b) order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical
payments, for such period as may be specified in the order.
(c) order that either party to the marriage shall pay to the other, such lump sum or sums as maybe specified in the
order; …..
6.5.2.2Duration of maintenance order for the maintenance of a former spouse by the other
It is important to note that the Act provides for the duration of a maintenance order for the
maintenance of a former spouse by the other. According to section 59 (1) of the Act, the duration
of a maintenance order should not extent beyond the death of either parties, or the remarriage of
the party in whose favour the maintenance order is made.
The said section 59 (1) provides as follows:
59 (1)The court in an order for periodical payments or secured periodical payments order
made in favour of a party to a marriage shall specify the term of the order as the court
thinks fit, subject to the following limits:
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(a) in the case of a 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 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 grant of such a decree, the remarriage of the party in whose favour the order is made.
6.5.2.3Variation or discharge of maintenance order for the maintenance of a former spouse
by the other.
As has been shown above, the duration of a periodical maintenance order for the maintenance of
a former spouse by the other shall not extent beyond the death of either of the parties or the
remarriage of the party in whose favour the order of maintenance is made.
This notwithstanding, the Act provides for the variation of or discharge of a periodical
maintenance order. The variation or discharge of a periodic maintenance order can arise in
circumstances where a former spouse does not remarry so as to discharge the order, but
continues to live a single party, and circumstances arise that make it unjustifiable for the party
providing maintenance to continue paying the amount of maintenance ordered, or to continue the
payment of maintenance.
Some of the circumstances that can warrant the variation of a maintenance order include the
improvement in the income earning capacity of the party who was in a weak financial position at
the time of orders. On the other hand, it could be that the earning capacity of the party who was
ordered to maintain the other has tremendously decreased and that of the party in favour of
whom the order was made has increased. With these circumstances at play, it could be justifiable
depending on the circumstances for the court either to order for variation of the maintenance
order or the discharge of the same.

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The law providing for the variation of a maintenance order for the maintenance of a former
spouse by the other is provided for under section 62(1) (2) (3), and the said provisions provide as
follows:
62 (1) subject to the provisions of this section, where the court has made an order to which this section applies, the
court shall have power to vary or discharge the order or to suspend any provisions thereof temporarily and
to revive the operation of any provision so suspended.
(2) This section applies to the following orders:
(a) any order for maintenance pending suit and any interim order for maintenance;
(b) any periodical payments order;
(c) any secured periodical payments order;
(d) any order made under paragraph(c) of subsection 4 of section fifty-four or paragraph (b) of subsection (7) of
section fifty-eight for the payment of a lump sum by installments.
6.5.2.4 Factors that the court may consider in determining the amount of maintenance
payable by a former spouse to the other.
The Matrimonial Causes Act No. 20 of 2007, provides for the factors that a court may consider
in determining the quantum of maintenance to be paid by a former spouse to the other. The
factors that the court may consider in determining the quantum of maintenance to be paid by a
former spouse to the other are provided for under section56 (1) (2). The said provisions provide
thus:
56(1) subject to the provisions of this section, the court may, in any matter or cause 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, make such an order on such application as it thinks proper having regard to:
(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
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In the needs factor, or the needs of the parties, the court balances the needs of the parties
and the availability of resources.
Lord Justice Thorpe in Dart V Dart49said in the needs factor, there must be an objective
appraisal of what the applicant subjectively requires to ensure that it is not unreasonable.
However, the objective appraised must have regard to such things as; (i) what is available
(ii) the standard of living to which the parties are accustomed (iii) their age and state of
health (iii) and perhaps less obviously, the duration of the marriage, the contributions and
pension rights of both parties as affected by the marriage and accrued or likely to accrue.
The “needs” factor must therefore be balanced with any other factors such as the
availability of resources, i.e. the income, the earning capacity, property and other
financial resources which each of the parties to the marriage has or is likely to have in the
foreseeable future.
 Income- means all sources of income, both earned and unearned, and includes the
benefits in kind received by a spouse by virtue of employment e.g. a car, fuel,
allowances, payment of domestic bills etc. all these should be taken into account as stated
in the case of Peacock v Peacock.50
 Earning capacity- as regards earning capacity, the court must look at the reality of the
situation and take into consideration the earning capacity of the party needing support.
The court may take judicial notice of the unemployment rate i.e. even if one is young and
49
(1966) 2FLR 286
50
(1984) 1 LL ER 1069
Page | 78
with a good education, one may not be in a position to find a job or a good job and earn
an income or good income that would not lower the standard of living which that party is
accustomed to. The court may also consider the need to train or rehabilitate the party
before the earning capacity can be actuated.
 Property and other financial resources- The Matrimonial Causes Act No. 20 of 2007,
does not define property. However, it is usual when talking of property to include real
property. It follows that matrimonial property includes: (i) real property (ii) chattels (iii)
insurance policies (iv) shares/interest in companies (v) damages (from litigation) (vi)
inheritance (vii) the means of a co-habitee or new spouse.
As regards damages, the Court of Appeal in England, held in Daubney v Daubney,51that
damages for pain and suffering and for loss of amenity are resources to be taken into
account.
In the case C v C,52
a wife applied for financial relief and in particular for a lump sum provision to be made out of the husband‟s damages
in respect of the husband‟s personal injury. The total due to the husband was five Million British Pounds (£5m).
However, taking into account all other factors, no lump sum was ordered for her.
 Inheritance- with regard to inheritance, this means inheritance received or not yet
received or likely to be received in the reasonably near future. The court must take it into
account as a resource available to a party
51
(1976) 2 ALL ER 453
52
(1976) 2 ALL ER 453
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 The “financial obligations and responsibilities” factor. In this factor, it maybe that a party
has dependants by a prior marriage or relationship. If this is the case, these must be
disclosed and taken into account by the court.
(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;
In the age factor, the age of each party is relevant because it impacts upon the earning
capacity of each party and/or the proximity to retirement. Examples of instances of how
the age factor plays a role on maintenance are as follows:
(i) A middle aged wife without an income and with children to look after will be protected
by court in so far as the resources of the husband allow.
(ii) A young spouse is likely to have a relationship with someone else or to re-marry. The
court must take this factor into account when considering financial relief.
(iii) If a party is about to retire, the level of maintenance maybe fixed with reference to his
existing income, with a defined decrease when he receives his pension.
(iv) English case law suggests that a very old applicant who has been married for a
substantial period will have less needs than a younger applicant and therefore
paradoxically an older applicant will receive less financial relief than a younger one. In
the Zambian context, because of absence of a guaranteed social security system, an older
person may require more financial support than any younger person who has chances of
finding another job or spouse.
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In the duration of the marriage factor- it is generally stated that short term marriage
normally gets short term relief. However, if there are children, even a short-term marriage
of 2 to 3 years will attract a substantial proportion of the property, or capital, to purchase,
say a house for her/him and the children.
(e) any physical or mental disability of either of the parties to the marriage;
(f) the contribution 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;
(g) in the case of proceedings for divorce or nullity of marriage, the value of either of the
parties to the marriage of any benefit, such as a pension, which as a result of the
dissolution or annulment of the marriage, that party will lose the chance of acquiring.
Subsection (2) of section 56, is the subsection that allows the court to take into consideration the
conduct of the parties, in addition to the factors aforementioned above, when determining the
quantum of maintenance to be paid by a former spouse to the other. As has been stated earlier,
this provision, regarding the conduct of the parties, should be interpreted by the court in the lines
of Watchel v Watchel case.
That is that, the court should decline to award financial support or maintenance, or reduce the
maintenance which it would otherwise have ordered, only in cases where the conduct of one
party is „both obvious and gross‟ so much so that to order one party to support another whose
conduct falls into this category is repugnant to anyone‟s sense of justice.
The said subsection (2) of section 56 provides as follows:
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56 (2) In making an order under subsection (1), the court shall seek to place the parties, so far as it is practicable
and just to do so, having regard to their conduct, in the financial position in which they would have been if
the marriage had not broken down and each had properly discharged their final obligations and
responsibilities towards the other.
The conduct that has been considered by the courts according to Lillian Mushota53includes:
 Attempted murder, or inciting a third party to murder a spouse, as in Evans V Evans.54
 Reckless gambling.
 Lying on oath during proceedings.
 Behaving in an aggressive or oppressive manner needlessly during the litigation e.g.
refusing to answer questions or disclose for instance, an income.
 Financial mismanagement if it is a significant factor: fraud such as changing title deeds or
selling property to get it beyond reach of the other spouse.
 Assault as in H v H55(financial provisions, conduct) where a husband‟s assault affected
the wife‟s material security to a significant degree. A similar case to H v H wasA
vA,56where a judge imposed a lump sum order to be paid on the sale of the matrimonial
home. The judge said: “in the light of the violence, it would be unwise to perpetuate a
financial relationship between the husband and wife over the course of years to come.”
The court held that it was better to sell the matrimonial home and pay the wife off instead
of allowing the two parties to continue to be in touch because of periodical payment.
53
Lillian Mushota. Family law in Zambia: cases and materials. Lusaka: UNZA Press
54
(1989) 1FLR 351
55
(1994) 2FLR 801
56
(1995) 1 FLR 345
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6.5.3 PROPERTY SETTLEMENT AMONG PARTIES TO A STATUTORY MARRIAGE
UPON NULLITY OF MARRIAGE OR UPON BREAKDOWN OF MARRIAGE
THROUGH DIVORCE.
The Matrimonial Causes Act No 20 of 2007 provides for the settlement of property (i.e. sharing
of property) among parties to a statutory marriage upon nullity of marriage or upon break down
of marriage through divorce. The provisions providing for the sharing of property are provided
for in section 55 (1) of the Act.
In addition, the Act provides for the variation of a property settlement order, where the
circumstances justify the variation of the order. The provisions providing for variation of a
property settlement order are provided for under section 62 (2) (e).
The said provisions of section 55 (1) providing for the sharing of property provides as follows:
55(1) The court may, upon granting a decree of divorce, a decree of nullity of marriage or a decree of judicial
separation or any time thereafter, whether, in the case of a decree of divorce or of nullity of marriage, before
or after the decree is made absolute, make any one or more of the following orders:
(a) an order that a party to the marriage shall transfer to the other party,.. such property as maybe specified in the
order, being property to which the party is entitled, either in possession or reversion;
(b) an order that settlement of such property as maybe 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 and of the
children of the family or either or any of them;
(c) an order varying for the benefit of the parties to the marriage …any ante-nuptial settlement, including a
settlement made by will or codicil, made by the parties to the marriage.
(d) an order extinguishing or reducing the interest of either of the parties to the marriage under the settlement.
The said provisions of section 62 (2)(e) providing for variation of a property settlement order
provides as follows:
62(2) This section applies to the following orders:
(e) any order for a settlement of property under paragraph (b) of subsection (1) of section fifty-five ….
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6.5.4 MAINTENANCE OF CHILDREN UPON DIVORCE OR NULLITY OF A
STATUTORY MARRIAGE
Under the Matrimonial Causes Act No. 20 of 2007, it is not only a party to the marriage who is
in a weak financial position that is entitled to maintenance, from the party in a strong financial
position, but the children of the family as well.
The Act makes provision for the maintenance of the children of the family upon divorce or
nullity of statutory marriages. This maintenance is to be made by any of the parties to the
marriage who is in a stronger financial position. It may be the man or the woman. The
maintenance order can take various forms as is the case in maintenance of a former spouse to the
marriage. That is the maintenance order can be in form of a periodical payment order, or secured
periodical payment order. In addition, it can be in form of lump sum payment or payment of a
lump sum in instilments.
This is provided for in section 54(1)(d)(e)(f).
The said section 54(1)(d)(e) and (f) as regards maintenance of the children of the family upon divorce or nullity of a statutory
marriage provides thus:
54 (1) The court in exercising its powers under this part, upon granting a decree of divorce, a decree of nullity of
marriage or a decree of judicial separation or at any time thereafter, whether, in the case of a decree of
divorce or of nullity of marriage, before or after the decree is made absolute, may do any or all of the
following:
(e) order that a party to the marriage shall make to such person as the court may specify in the order for the
benefit of a child of the family, or to such a child, such periodical payments, for such period, as may be
specified in the order;
(f)order that a party to the marriage shall secure to such person as the court may specify in the order for the
benefit of a child of the family, or to such a child, such lump sum as may be specified in the order.
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The Act puts a limit as to the children of the family that are entitled to the maintenance.
According to the Act as provided in section 54 (2) of the Act, it provides that maintenance shall
not be ordered for any children of the family that have attained the age of twenty-one years old.
However, the section allows the court to make a maintenance order only when special
circumstances justify the making of such an order.
The said subsection 54 (2) provides thus:
54 (2) The powers of the court to make orders under paragraph (d)(e) and (f) of subsection (1) shall not be exercised for the
benefit of a child who has attained the age of twenty-one years unless the court is of opinion that there are
special circumstances that justify the making of such an order for the benefit of the child.
The Act also provides for the factors that a court may take into consideration when determining
the quantum of maintenance to be paid to the child/or children of the family. The factors to be
considered are provided for under section 56 subsection (3)(4) and (5) of the Act. Among the
factors that the court is supposed to take into consideration as provided by the said provisions
of the Act include:
(a) the financial needs of the child;
(b) the income, earning capacity if any, property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) the standard of living enjoyed by the family before the break down of the marriage; and
(e) the manner in which the child was being and in which the parties to the marriage
expected the child to be educated and trained.
See the provision of section 56 subsection (3)(4) and (5) for these factors.
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In addition, the Act in section 60 (1) (2) (3), prescribes the duration that a maintenance order
made in favour of the children of the family, upon divorce or nullity of a statutory marriage,
should take.
According to the Act, no maintenance order should be made in favour of children who have
attained the age of twenty-one. However, the Act provides that a maintenance order can be made
in favour of a child of the family who has attained twenty-one years, but is below the age of
twenty-five where the child on attaining twenty-one will be or is undergoing tertiary education,
whether or not the child is also in gainful employment. The Act also allows the maintenance of a
child who has attained twenty-one, but there are special circumstances which justify the making
of a maintenance order in favour of that child.
The said provisions of section 60(1)(2)(3) provides as follows:
60 (1) Subject to subsection (3), no financial provision order and no order for a transfer of property
under paragraph (a) of subsection (1) of section fifty-five shall be made in favour of a child who
has attained the age of twenty-one.
(2) Subject to subsection (3) the term to be specified in a periodical payment or secured periodical
payment order in favour of a child may begin with the date of the making of an application for the
order in question or any later date but shall not extend beyond the date of the child‟s twenty-first
birthday.
(3) Subsection (1) and (2) shall not apply in the case of a child who has attained the age of twenty-one
but is below the age of twenty-five if it appears to the court that:
(a) the child is, or will be or if an order were made without complying with those provisions would be
receiving instruction at an educational establishment or undergoing training for a trade, profession
or vocation, whether or not the child is also or will also be in gainful employment; or
(b) there are special circumstances which justify the making of an order without complying with either
or both of those provisions.
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Furthermore, the Act provides for variation of a maintenance order, made in favour of the
children of the family upon divorce or nullity of a statutory marriage just as it provides for
variation of maintenance order made in favour of a former spouse to the other. The provisions
relating to variation of a maintenance order, made in favour of the children of the family upon
divorce or nullity of a statutory marriage provide thus:
62 (1) Subject to the provisions of this section, where the court has made an order to which this section applies, the
court shall have power to vary or discharge the order or suspend any provision thereof temporarily and to
revive the operation of any provision so suspended.
(2) This section applies to the following orders:
(a) any order for maintenance pending suit and any interim order for maintenance,
(b) any periodical payments order,
(c) any secured periodical payment order
6.5.4.1Definition of children of the family
Under the Matrimonial Causes Act No.20 of 2007, children of the family to whom the afore
stated maintenance will be made, does not only mean the children born between the parties to the
marriage during the subsistence of the marriage. However, children of the family include those
borne by the parties to the marriage during the subsistence of the marriage, as well as a child
adopted since the marriage. It also includes a child of the husband and wife born before the
marriage, as well as a child of either the husband or wife, including a child born outside wedlock
to either one of them, and a child adopted by either of them, which child was ordinarily a
member of the household of the husband and wife and accepted by both as a member of family.
The section providing for the definition of the children of the family is section 5 (1) of the Act.
The section provides as follows:
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5(1) For the purpose of the application of this Act in relation to a marriage-
(a) a child adopted since the marriage by the husband andwife or by either of them with the consent of the other.
(b) a child of the husband and wife born before the marriage whether legitimated by the marriage or not; and
(c) a child of either the husband or wife, including a child born outside wedlock to either one of them and a child
adopted by either of them, if at the relevant time the child was ordinarily a member of the household of the
husband and wife and accepted both as a member of the family;
shall be deemed to be a child of the family and a child of the husband and wife.
Provided that a child born before the marriage, whether legitimate by the marriage or not, who has been
adopted by another person or other persons shall be deemed not to be a child of the marriage
6.5.5 PROPERLY SETTLEMENT IN FAVOUR OF THE CHILDREN OF THE FAMILY

UPON DIVORCE OR NULLITY OF MARRIAGE.
The Matrimonial Causes Act No. 20 of 2007 as shown above, provides the settlement of property
among parties to a statutory marriage upon its being nullified or dissolved through divorce.
However, the Act does not only provide for settlement of property among the parties to the
marriage, but the Act also extends properly settlement to the children of the family.
The provisions providing for property settlement to the children of the family are provided in
section 55(1)(a)(b)(c) and (d).
These provisions provide thus:
55 (1) The court may, upon granting a decree of divorce, a decree of nullity of marriage or a decree of judicial
separation or at any time thereafter, whether, in the case of a decree of divorce or of nullity of marriage,
before or after the decree is made absolute, make any one or more of the following orders:
(a) an order that a party to the marriage shall transfer to ……any child of the family or to such person as the
court may specify in the order for the benefit of such a child, such property as may be specified in the order,
being property to which the …. Party to the marriage is entitled, either in possession or reversion;
(b) an order that settlement of such property as maybe 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 children;
(c) an order varying for the benefit of …. the children of the family …. any ante – nuptial settlement, including a
settlement made by will or codicil, made by the parties to the marriage; ….
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In addition, the Act provides for the variation of a property settlement order made in favour of
the children of the family, where the circumstances justify the variation of the order. The
provisions providing for variation of a property settlement order in favour of the children of the
family are provided for in section 62 (1) (2) (e) which provides as follow:
62 (1) Subject to the provisions of this section, where the court has made an order to which this section applies, the
court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to
revive the operation of any provision so suspended.
(2) This section applies to the following order:
(e) any order for a settlement of property under paragraph (b) of subsection (1) of section fifty-five ….
The Act also prescribes in section 60(1)(2)(3) of the Act, the circumstances when a property
settlement order will not be made in favour of a child of the family upon divorce or nullity of
marriage. The Act bars the court from making a property settlement order (that is a transfer of
property to a child of the family) where the child has attained the age of twenty-one years.
However, the Act in the aforesaid subsections of section 60 allows the court to make a property
settlement in favour of a child of the family on the same circumstances, that a court would make
a maintenance order in favour of the child of the family, as shown above. That is, the court is
allowed to make a property settlement order in favour of a child who has attained twenty-one
years, but is below the age of twenty-five if the child on attaining twenty one is still or will be
undergoing tertiary education whether or not the child is also in gainful employed. In addition,
the Act allows the court to make a property settlement order in favour of a child who has attained
twenty - one years and less than twenty - five years if they are special circumstances that justify
the making of a property settlement order in favour of that child.
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6.5.6 CUSTODY OF CHILDREN OF THE FAMILY UPON DIVORCE OR NULLITY OF
A STATUTORY MARRIAGE
The Matrimonial Causes Act No. 20 of 2007 makes provision for the maintenance of the children
of the family of a statutory marriage, upon the divorce or nullity of the marriage. The Act
provides in section 72 (1) that the court upon divorce or nullity of marriage may grant either
party to the marriage the custody and education of the children of the family who are under the
age of twenty-five.
Further, the Act in section 72(3) empowers the court to deny both parties to the marriage, the
right to the custody of any child of the family, where the court is of the view that both parties are
unfit to have the right to the custody of the child of the family. The court is empowered under
subsection (3) of section 75, to place a child of the marriage in the custody of a person other than
a party to the marriage.
The Act also empowers the court with the power to vary or discharge any custody order that the
court may have made regarding the custody of the children. This power to vary custody orders is
provided for under section 72 (7) of the Act.
Finally, section 75 (1)(a) provides that the court should regard the interest of the children as the
paramount consideration in giving one parent custody of the children, while denying the other
parent the custody. An illustration of the interest of the child factor can be a situation where the
court denies custody of the children to the parent with a strong financial means, but grants
custody to the parent without an income, and orders that the parent with strong financial means
provides maintenance for the purposes of paying accommodation and other necessities for the up
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keep of the children. This, the court can order, where the court is of a view that the children will
grow up to be normal people if they grow up under the custody of the parent without financial
means rather than the financially stable parent, as illustrated.
Subsection (2) of section 75 empowers the court to seek the guidance of a social welfare officer
in determining the best interest of the child.
Subsection (4) of section 75 empowers the court to make an order for access to the child by the
other party to the marriage, in situations where the court makes an order placing a child of a
marriage in the custody of a party to the marriage or of a person other than a party to the
marriage.
6.5.7 MAINTENANCE, PROPERTY SETTLEMENT AND CUSTODY OF CHILDREN

UPON BREAKDOWN OF A CUSTOMARY MARRIAGE
Where a marriage was contracted under customary law, issues of maintenance of the divorced
spouse, maintenance of the children of the family, as well as property settlement and custody of
the children of the marriage were determined in accordance with the practices of a particular
tradition and custom that the parties were married under. An example of this is that case of
Martha Mwiya V Alex Mwiya.57
In this case, both husband and wife were Lozi by tribe. The wife had sued the husband in 1969 in the Mulobezi local court
because he divorced her and according to her, without giving her anything. She further told the court that she wanted to go back
to her husband. The Mulobezi local granted divorce, ordered that K10, 000 be given to the plaintiff, K2.00 to be fee and 20n to
be refunded.
She was dissatisfied with the judgment of the Local Court and therefore, she appealed to the Subordinate Court who upheld the
decision of the Local Court. Still dissatisfied with the decision of the Subordinate Court, she appealed to the High Court.
Sakala J presiding over the matter in the high court stated thus:
57
(1977) ZR 113
Page | 91
I have given the history of this appeal my most serious consideration. I must admit that my task has been made much easier with
the assistance of the assessors. The questions which this court has to resolve are as follows:
1. Does lozi custom compel the sharing of property acquired during the subsistence of marriage upon divorce?
2. Does lozi custom compel the husband to support his divorced wife?
3. Does lozi custom compel the husband to take on the wife he has divorced?
As regarding question one; the assessors are unanimous in the opinion that there is no lozi custom which compels a husband to
share property. The assessors are agreed that if the husband so wished, he may share the property, but he is not bound by
custom. I find no reason to differ with this lozi custom.
Turning to the question of whether there is a lozi custom which world compel a man to support for life a woman he had divorced,
the assessors are unanimous on this question that there is no such lozi custom. Again, I find no reason to differ with their
opinion.
The assessors were also unanimous with regard to the third question that there is no lozi custom compelling a man to take on a
wife he has divorced.
The appeal was accordingly dismissed.
It follows from the Mwiya v Mwiya case that under lozi customary law, a divorced woman is not
entitled to maintenance and property settlement upon divorce.
6.5.8 CASE LAW REFORMS
However, this situation in Mwiya v Mwiya notwithstanding, there has been tremendous reform
in the law on divorce as regards, maintenance, property settlement and custody of children upon
dissolution of a customary marriage through divorce. This reform has been through case law and
statutory reforms.
This reform of customary laws on divorce as regards maintenance, property, settlement and
custody of children has been to the effect that the courts will not enforce customary practices and
tradition on divorce as regards maintenance, property settlement and custody of children, which
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practices are repugnant to natural justice, equity, morality and good conscious, as was the case in
Mwiya v Mwiya.
The first important case that set the reforms on these aspects was the Supreme Court of Zambia
case of Rosemary Chibwe V Austin Chibwe.58
This case was an appeal from the Local Court to the Subordinate Court, then to the High Court and eventually to the Supreme
Court. The appellant, Rosemary Chibwe was originally in the Local Court the respondent in a divorce petition brought by her
former husband Austin Chibwe, the respondent in the Supreme Court. The respondent sued the appellant for divorce before the
Local Court in Mufulira under customary law alleging inter alia, unreasonable behaviour and adultery with some unknown
person. The Local Court granted as prayed the said prayer on the said ground.
The appellant appealed to the Subordinate Court on the ground that the Local Court justice had misdirected themselves by
dissolving the marriage on un-established ground and that the Local Court justices had not addressed their minds to the question
of maintenance and property adjustment of the property acquired by the respondent during the subsistence of their marriage. The
learned magistrate heard de novo the evidence and sat with assessors in ushi customary law.
At the end of the trial, he dismissed the appeal as being without merit and confirmed the decision of the Local Court. The
appellant then appealed to the High Court. The learned High Court Commissioner considered ushi customary law, and directed
the respondent to pay the appellant the sum of K10, 000 000 with simple interest at the rate of ten percent from 8th July 1991, to
the date of judgment which was 25th June 1998, the appellant appealed against the decision of the learned trail Commissioner to
the Supreme Court.
The Supreme Court held:
(i) In Zambia, courts must invoke both the principles of equity and law concurrently.
(ii) It is a cardinal principle supported by a plethora of authorities that court conclusion must be based on facts stated on
record.
(iii) In making property adjustments or awarding maintenance after divorce the court is guided by need to do justice taking
into account the circumstances of the case.
(iv) Customary law in Zambia is recognized by the constitution provided its application is not repugnant to any written law.
It follows from the Chibwe v Chibwe case that the courts in Zambia have to take into
consideration provisions of the written law in determining customary law, and that customary
practices that are found to be repugnant to natural justice, equity, morality or good conscious
should be disregarded. Therefore, it follows from the Chibwe v Chibwe Supreme Court
precedent that the courts should disregard unfair and repugnant customs as regards maintenance,
58
(2000) ZR 1
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property settlement and custody of children upon dissolution of a customary marriage through
divorce.
6.5.9 STATUTORY REFORMS
In addition to the reforms brought by case law, statutory reform has had an effect on customs that
are repugnant to natural justice and inconsistent with the written law. Among the statutory
reforms key to the reform of customary practice upon divorce as regards maintenance, property
settlement and custody of children upon dissolution of a statutory marriage through divorce is the
Local Courts Act Cap 29 of the Laws of Zambia. The Local Courts are the courts that administer
customary law, and are the first courts of instance for customary marriages. The local courts are
therefore the first courts of instance in matrimonial causes arising under customary marriages.
The Local Courts Act has empowered Local Courts in matrimonial causes under customary law
to disregard customary practices that are repugnant to natural justice and inconsistent with the
written law. This power is provided for in section 35 (1) of the Act that provides thus:
35 (1) Subject to the provision of this Act or any other written law, and to the limitations imposed by its court
warrant, a Local Court in cases of a civil nature, may-
(a) order the award of compensation, which may include an amount for costs and expenses necessarily or
reasonably incurred by a successful party or his witnesses;
(b) order the specific performance of a contract;
(c) order the restitution of any property;
(d) make an order for the payment of such monthly sum for the maintenance of a divorced spouse as the court
may consider just and reasonable having regard to the means and circumstance of the parties for a period
not exceeding three years from the date of divorce until re-marriage whichever is the earlier;
(e) make an order for the maintenance of any child below the age of eighteen years whether born in or out of
marriage provided that where the child is born out of marriage an order under this paragraph shall be
made with the consent of the parent against whom the order is to be made when that parent is not the
natural parent of the child.
(f) make any other order which the justice of the case may require, ad may make any combination ofthe above
orders.
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It follows therefore, that the Local Courts are empowered expressly in subsection (d) of section
35 (1) to make an order of maintenance upon dissolution of a customary marriage through
divorce. It is important to note that the provision of section 35 (1) (d) above do not expressly
specify, which party upon divorce of a customary marriage should maintain the other. From
construction of the said provisions, nothing stops the local court from making a maintenance
order in favour of a husband, where the circumstances are such that it is just and reasonable to do
so. So, it follows that a former wife can maintain a former husband after dissolution of a
customary marriage through divorce. It is also important to note that maintenance upon divorce
of a customary marriage has a duration upon which it ceases, and this duration is within three
years of divorce or re-marriage of the party being divorced, whichever happens first.
However, when it comes to property settlement and custody of children upon divorce of a
customary marriage nothing stops the local courts to invoke the provisions of subsection (f) of
section 35 (1) as authority to make an order for property settlement in favour of a divorced
spouse or children of the family. In addition, the local courts can invoke the provision of the said
subsection (f) of section 35 (1) to also resolve issues of custody of children.
6.6SUMMARY
This unit looked at the legal consequences that follow divorce. The unit discussed the legal
consequences of divorce under both civil and customary marriage.
6.7ACTIVITIES
(a) Discuss the legal aspect of maintenance of a divorced spouse under civil and customary
marriage.
(b) What is meant by property settlement after divorce? Discuss the issue of property
settlement between a spouse and children of the family upon divorce?
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(c) What is the law on custody of children upon divorce?
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UNIT SEVEN: JUDICIAL SEPARATION, SEPARATION
AGREEMENTS AND MAINTENANCE PENDING
SUIT
7.0 INTRODUCTION
This unit introduces students to the issues of judicial separation. It is important to note that
during the subsistence of marriage, parties may go on judicial separation. This arises both under
civil and customary marriage. This unit therefore introduces the student to the issue of judicial
separation
7.1 AIM
The aim of this unit is to introduce the student to the issue of judicial separation and the grounds
for judicial separation.
7.2 OBJECTIVES
At the end of the unit, the student is expected to understand the meaning of judicial separation. In
addition, the student should be able to distinguish judicial separation from mere mutual
separation.
7.3 TIMES REQUIRED

7.4 REFLECTION
What do you understand by the term judicial separation.Is judicial separation the same as mutual
separation?
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7.5 JUDICIAL SEPERATION
7.5.1 JUDICIAL SEPARATION UNDER STATUTORY MARRIAGE.
The provisions providing for judicial separation under statutory marriages are provided for under
Part VI of the Matrimonial Causes Act No. 20 of 2007. Judicial separation is simply a court
order that extinguishes the parties‟ obligation to live together as married couples. Judicial
separation is more advantageous compared to a mutual agreement between the parties to live
separately. This is so in that in judicial separation, a party may seek other reliefs from court in
addition to judicial separation itself like an order for maintenance of the party to the marriage
and the children of the family whilst the parties are on judicial separation. This is provided for
under section 54 (1) of the Matrimonial Causes Act No. 20 of 2007. A party to the marriage can
also seek the order of transfer of property to themselves or to a child or children of the family, by
the other party to the marriage in addition to the order for judicial separation.
This is provided for under section 55 (1) of the said Matrimonial Causes Act No 20 of 2007.
Further, a party to the marriage can also seek an order of custody of children of the family in
addition to the order of judicial separation as provided for under section 72 (1) of the said
The advantages of a judicial separation order are that a party may seek the above aforementioned
reliefs in addition to an order of judicial separation. The above stated orders once granted by the
court are legally binding. This is unlike mutual agreements agreed upon by parties that go on
mutual separation, without involving the court. The problem with mutual separation agreements
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is that they may not be binding as do the said above reliefs granted alongside a judicial
separation order.
An example of this could be a situation, where one party upon mutual agreement to go on
separation agrees to provide maintenance to the other party; in an instant where the party that
agreed to provide maintenance, fails to do so, it may be impossible to compel the party to
provide the maintenance even by court as such agreements may be regarded as not having been
intended to be legally binding.
However, where the relief of maintenance is granted in addition to an order for judicial
separation, the failure to pay any maintenance amounts to an arrear, and this can be levied by
execution by an order of court. It is for this reason that parties who seek other reliefs in addition
to judicial separation would rather seek a judicial separation order than opt to go on separation
by mutual agreement or consent.
7.5.1.1Grounds for judicial separation
The ground for judicial separation as provided under section 34 (1) of the Matrimonial Causes
Act 2007 is any one or more of the factors for irretrievable break down of marriage, specified in
Paragraph (a) to (e) of subsection (1) of section 9 of the Matrimonial Act No. 20of 2007.
The only difference between a petition for judicial separation and a petition for divorce is that in
a petition for judicial separation, a marriage does not have to have broken down irretrievably.
Otherwise, the same factors that one has to prove for irretrievable break down of marriage are
the same factors that one has to prove in order to obtain an order for judicial separation.
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7.5.1.2Effect of judicial separation
The effect of a decree of judicial separation as provided under section 35 of the Matrimonial
Causes Act No. 20 of 2007 is that once the order is granted, it relieves the petitioner from the
obligation to cohabit with the other party to the marriage while the decree remains in operation,
but does not otherwise affect the marriage or the status, rights and obligations of the parties to
the marriage.
7.5.1.3Dischargeofdecreeofjudicialseparation
Where, after a decree of judicial separation has been made the parties have voluntarily resumed
cohabitation, either party to the marriage may apply for an order discharging the decree of
judicial separation. This is provided for under section 39 of the Act.
7.5.2 JUDICIAL SEPARATION UNDER CUSTOMARY LAW MARRIAGE
Under customary law, separation by way of mutual consent exists. This is so in that in certain
cases, parties to a marriage may agree to go on separation as the last alternative to save a
marriage from divorce under such an agreement, the woman is in most cases sent to her parents
or relatives to live there, pending the separation.
As regards judicial separation under customary law, there is no express provision under the
Local Courts Act that provides for judicial separation. However, the author is of the view that
nothing stops the local court from invoking the provisions of section 35 (1) (f), to grant judicial
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separation of a couple, if the justice of the case requires so and in addition, the court may invoke
the same provisions to grant any other relief that a party seeking judicial separation may seek if
doing so is again such that it is what the justice of the case requires.
7.6 MAINTENANCE PENDING SUIT

Maintenance pending suit under statutory marriages is provided for under section 52 of the
Maintenance pending suit is simply an order for maintenance, made by the court in favour of one
party to the marriage against the other, obligating the party ordered, to maintain the other party to
the marriage, pending a petition for divorce, nullity of marriage or judicial separation.
As regards customary marriage, there is no express provision under the Local Court Act
providing for maintenance pending suit, but the author is of the view that where there is a suit
before the Local Court for dissolution of marriage, reconciliation or judicial separation, nothing
prevents the court from invoking the provisions of section 35 (1) (f) of the Local Courts Act, and
hereby making an order for maintenance pending suit, if the justice of the case so desires.
It is important to state that maintenance pending suit may not be necessary in the court for one
reason and that reason mainly being that matters in the Local Courts do not remain pending for a
long time as is the case with superior court.
7.7 SUMMARY
This unit looked at the issue of judicial separation. The unit looked at judicial separation under
civil and customary marriage as well as the grounds for judicial separation under both civil and
customary marriage.
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7.8ACTIVITIES
(a) What do you understand by judicial separation, and what are the grounds for judicial
separation?
(b) Is there judicial separation under customary law?
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UNIT EIGHT: MAINTENANCE
8.0 INTRODUCTION
The unit introduces the student to the issue of maintenance of a spouse by the other spouse while
their marriage subsists. It also focuses on the maintenance of children while their parents‟
marriage subsists.
8.1 AIM
The aim of this unit is to introduce students to the issue of maintenance of a spouse by another
spouse, while their marriage subsists. In addition, the unit introduces the student to the issue of
maintenance of children while their parents‟ marriage is subsisting.
8.2 OBJECTIVES
At the end of the unit, the student should be able to demonstrate the issues of maintenance of one
spouse by the other while their marriage subsists. In addition, the student should be able to
demonstrate the maintenance of children while their parents‟ marriage subsists.
8.3 TIME REQUIRED

8.4 REFLECTION
What do you know about the maintenance of a spouse by the other while their marriage subsists.
In addition, what do you know about the maintenance of children by their parents whilst the
parents‟ marriage subsists.
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8.5 MAINTENANCE
8.5.0 MAINTENANCE OF A SPOUSE TO A MARRIAGE BY THE OTHER DURING

THE SUBSISTENCE OF THE MARRIAGE
Both statutory law and customary law favour the maintenance of a spouse to the marriage by the
other spouse during the subsistence of marriage.
As regards statutory marriages, the general rule is that it does not matter which party to the
statutory marriage is in a better financial position. The position as regards statutory marriages is
that whether it is the woman or the man who is in a better financial position, the general rule is
that a party in a better financial position should maintain that other party who is in a weaker
financial position.
Though this is the general rule, as regards maintenance of spouses in a statutory marriage, it is
important to state that according to the Matrimonial Causes Act No. 20 of 2007, there is a limit
as regards the circumstance as to when a wife will maintain a husband. This limit is set by the
provisions of the Matrimonial Causes Act No 20 of 2007, as provided in section 58 (1) of the
stated Act. The Act limits the circumstances when a wife will be obligated to maintain her
husband only in circumstances where a husband is unable to earn an income due to old age,
illness or disability of mind or body.
It has been suggested that this provision could have been crafted by our parliament when
enacting this Act, with the view in mind, that under Zambian customary law, and generally
African customary law, it is the man that maintains his wife.
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As regards the maintenance of a party to a customary marriage, customary law places the man as
having the responsibility to maintain his wife and it is in fact a shame under customary law for
an able-bodied man to demand that his wife should maintain him. This notwithstanding, it has
been argued that nothing stops local court magistrates from ordering a wife to maintain her
husband if the justice of the case requires so as provided in section 35 (1) (f) of the Local Courts
Act cap 29 of the laws of Zambia, cited above.
8.5.1 MAINTENANCE OF A SPOUSE TO A MARRIAGE BY THE OTHER SPOUSE

WHEN THE PARTIES ARE ON JUDICIAL SEPARATION
Under statutory marriages, when the parties are on judicial separation, it is possible for a party to
the marriage to seek an order of maintenance in addition to being granted an order of judicial
separation. This power by the court to order maintenance of a party, while the parties are on
judicial separation is provided for under section 54 (1) of the Matrimonial Causes Act No. 20of
2007.
It has been stated above that there is no express provision under the Local Court Act, that
provides for the maintenance of a spouse to a customary marriage, by the other spouse, while the
parties are on judicial separation. However, it has been suggested that nothing stops the local
court from invoking the provision of section 35 (1) (f) to grant maintenance to a party by the
other party, upon granting a judicial separation order, if the justice of the case requires that an
order of maintenance be granted in addition to an order for judicial separation.
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8.5.2 MAINTENANCE OF CHILDREN WHILE PARENTS’ MARRIAGE SUBSISTS
Both statutory law and customary law, provides for the maintenance of children of the family
while their parent‟s marriage subsists.
Under statutory marriage, the provision providing for the maintenance of children while their
parents‟ marriage subsists is contained in section 58 (1) (a) (ii) (b) (ii) as follows:
58 (1) Either party to a marriage may apply to the court for an order under this section on the ground that the
respondent-
(a) being the husband, has willfully neglected-

(i) To provide or to make a proper contribution towards, reasonable maintenance for any child of
the family to whom this section applies; or
(b) Being the wife has neglected to provide, or to make a proper contribution towards, reasonable
maintenance-
(ii) For any child of the family to whom this section applies.
It follows therefore from the above, that under statutory marriage, either the husband or wife,
may be ordered by the court provide maintenance to any child of the family to which the
Matrimonial Causes Act No.20 of 2007 applies.
The maintenance order that a court may make for the maintenance of a child of the family may
take the form of a periodical payments order or a secured periodical payments order or a lump
sum payment as provided for under section 58 (1) subsection (6) (d) (e) (f).
As regards the duration of the maintenance orders that a court may make for the benefit of the
children of the family this is provided for in section 60 of the Matrimonial Causes Act No. 20 of
2007.
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The section generally provides that a maintenance order made in favour of a child of the family,
should not extend beyond the date of the child‟s twenty first birthday. However, the section also
provides for exceptions when maintenance order in favour of a child may extend beyond the
child‟s twenty first birthday, but it further provides that such order should cease upon the child
attaining the age of twenty-five years.
The circumstances when a maintenance order made in favour of a child would extend beyond the
child‟s twenty first but cease upon the child attaining the age of twenty-five years is when the
child is receiving instruction at an educational establishment, or when there are special
circumstances which justify the making of such maintenance order. In these afore stated
circumstances, the maintenance order will be granted by the court, regardless of whether the
child is in gainful employment or not.
The said section 60 of the Act provides thus:
60(1) Subject to subsection (3) no financial provision order and no order for a transfer of property under
paragraph (a) of subsection (1) of section fifty five shall be made in favour of a child who has attained the
age of made in twenty-one. .
(2) Subject to subsection (3) the term to be specified in a periodical payment or secured periodical payments
order in favour of a child may begin with the date of the making of an application for the order in question
or any later date but shall not extend beyond the date of the child‟s twenty first birthday.
(3) subsection (1) and (2) shall not apply in the case of a child … who has attained the age of twenty-one but is
below the age of twenty-five if it appears to the court that-
(a) the child is, or will be or if an order were made without complying with those provision would be receiving
instruction at an educational establishment or undergoing training for a trade, profession or vocation
whether or not the child is also or will be in gainful employment or
(b) there are special circumstances which justify the making of an order without complying with either or both of
those provisions.
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As regards customary law, it has been said that customary law provides for the maintenance of
children while their parents‟ marriage subsists. In addition, the Local Courts being the first court
of instance for any matrimonial dispute arising under customary marriage, is empowered in
section 35(1)(e) to make a maintenance order in favour of child below the age of eighteen years.
It follows therefore, that children under the age of eighteen years will be entitled to maintenance
during the subsistence of their parent‟s marriage as provided under section 35(1) (e) of the Local
Acts Cap 29 of the Laws of Zambia.
The said provisions of section 35 (1) (e) of the Local Courts Act Cap 29 of the Laws of Zambia
35(1) Subject to the provisions of this Act or of any other written law, and to the limitations imposed by its court
warrant, a local court in case of a civil nature may-
(e) make an order for the maintenance of a child below the age of eighteen years whether born in or out
marriage.
Provided that where the child is born out of marriage an order under this paragraph shall be made with the
concert of the parents against whom the order is to be made when that parent is not the natural parent of the
child.
8.5.3 MAINTENANCE OF CHILDREN WHEN PARENTS ARE ON SEPARATION
As regarded statutory marriages, section 54(1)(d)(e)(f) of The Matrimonial Causes Act No.20 of
2007,provides for the maintenance of children when their parents are on separation. The said
provisions of the Act empowers the court to order either party to the marriage to maintain a child
of the family to which the Act applies, when the parties have been granted a decree of judicial
separation.
The maintenance order in favour of the child of the family that may be made by the court may
take the form of a periodical payment order or a secured periodical payment order or a lump-sum
payment as provided by the said section 54(1)(d) (e )(f) of the Act.
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As regards the duration which such maintenance order ought tolast, section 60 of the
Matrimonial Causes Act No. 20 of 2007 provides that such maintenance order should not extend
the date of the child‟s twenty-first birthday. However, the same section in subsection (3)allows
for a maintenance order to extend beyond the child „s twenty-first birthday, but to cease on his
twenty-fifth birthday, if the child was receiving instructions at an educational institution when he
attained the age of twenty-one or there are special circumstances that warrant the making of such
order by the court.
As regards customary marriages, the maintenance of children of a customary marriage, when
their parents are on separation is provided for under the said section 35(1)(e) of the Local Courts
Act Cap 29 of the Laws of Zambia. The said provision allows the Local Court to make an order
for maintenance of any child below the age of eighteen years whether born in or out of marriage.
It follows, that where the parties to a customary marriage are on separation or when the Local
Court has granted an order of judicial separation pursuant to subsection(f) of section 35(1) the
court may in addition to the judicial separation order, make and order pursuant to subsection (e)
of section 35(1) of the said Local Courts Act, the maintenance of any child below the age of
eighteen -years, for the duration of the judicial separation order.
8.5.4 MAINTENANCE OF CHILDREN WHEN PARENTS ARE DIVORCED
As regard statutory marriages, the said section 54(1)(d)(e)(f) of the Matrimonial Causes Act No.
20 of 2007, provides for the maintenance of children when their parents are divorced.
The said provision of the Act empowers the court to order either party to the marriage, to
maintain the child of the family to which the Act applies, when the parties to the marriage have
been granted a decree of divorce, before or after the decree has been made absolute.
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The maintenance order in favour of the child of the family that may be made by the court may
take the form of the periodical payment order or a secured periodical payment order or a lump
sum payment as provided by the stated section 54(1)(d)(e)(f) of the Matrimonial Causes
Act2007.
As regards the duration which such maintenance order ought to last, section 60of Matrimonial
Causes Act 2007, provides that such maintenance order should not extend the date of the child‟s
twenty-first birthday. However, the same section in subsection (3) allows for a maintenance
order to extend beyond the child‟s twenty-first birthday, but to cease on his twenty-fifth birthday
if the child attained the age of twenty-one or there are special circumstances that warrant the
making of such maintenance order by the court.
As regards customary marriages, the maintenance of children of a customary marriage, when
their parents are divorced is provided for under the said section 35(1)(e) of the Local Courts Act
Cap 29 of the Laws of Zambia. The said provision empowers the Local Court to make an order
for maintenance of any children below the age of eighteen whether born in or out of marriage.
It follows therefore that where a Local Court has dissolved a customary marriage, the court may
make an order pursuant to the said subsection (e) of section 35(1) of the Local Courts Act, for
the maintenance of any child below the age of eighteen-year whether born in or out of marriage.
8.5.5 MAINTENANCE, AFFILIATION AND CUSTODY OF CHILDREN BORN
OUTSIDE MARRIAGE.
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In Zambia, the law that provides for the affiliation, maintenance and custody of children born
outside marriage, is the Affiliation and Maintenance of Children Act Cap 64 of theLaws of
Zambia.
The Act also applies as the law on custody, where the court has granted or has made absolute a
decree of divorce, or where the court has granted a decree of judicial separation. In Zambia the
court that hears an affiliation, maintenance and custody application for children born outside
marriage is the Subordinate Court or the High Court.
8.5.6 MAINTENANCE OF CHILDREN BORN OUTSIDE MARRIAGE
According to the Affiliation and Maintenance of Children Act, before a court can make a
maintenance order, the court has to first affiliate such child born outside wedlock to the putative
father, it is after affiliating a child to the putative father, that the court will make a maintenance
order in favourof the child against the putative father.
According to section 2 of the Act, an “affiliation order” is defined as, “an order declaring a man
to be the father of a child identified in the order.” It follows that upon making an affiliation
order, the court can make a maintenance order, ordering that the putative father pays the child
(through its mother or legal guardian) a weekly or monthly sum as maintenance.
According to the Act, an affiliation order, may be made by the court upon application by a single
woman as provided by section 3 of the Act. In addition, an affiliation order may be made by the
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court upon application by a party to a void marriage59 or upon application by a child born outside
marriage through the child „s next friend.60
Section 6 of the Act gives an additional requirement which should be met before an affiliation
order can be granted by the court. This additional requirement is that the court must be satisfied
that there is corroboration of the mother‟s evidence in some material particular that the man is
the father of the illegitimate child.
Section 6 of the Act also states that if the above requirements are met, the magistrate may
adjudge the man to be the putative father of the child and make an order on such putative father
to pay the mother of such child or any other person named in the order such monies as the court
may order as maintenance in favour of the child.
If after one calendar month from the grant of an affiliation order the putative father does not pay
the money ordered to be paid, he may be called before a magistrate court and if he neglects or
refuses to pay, the magistrate may by warrant direct that the sum due, together with costs, be
recovered by distress and sale of the goods and chattels of the putative father and may order
such, putative father to be committed to prison to remain there without bail for any term not
exceeding three calendar months unless such sums and all costs incurred be sooner paid or
satisfied.61
In addition, section 12 stipulates that a maintenance order made in favor of a child born outside
wedlock in favor of a putative father, shall end when the child in respect of whom it was made
has attained the age of eighteen years. However, the same section 12 provides for exceptions
59
Section 4, Affiliation and Maintenance of Child Act Cap 64 of the Laws of Zambia.
60
Ibid; section 5
61
See Part VI of the Affiliation and Maintenance of Children Act Cap 64 of the Laws of Zambia.
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when the court may order the putative father to continue paying maintenance in favour of a child
who has attained the age of eighteen years. These exceptions are where upon attaining the age 18
years, the child is or will be receiving instructions in some profession or vocation, whether or not
he is or will be in gainful employment as well. Or if there are special circumstances which justify
the making of a maintenance order, notwithstanding that the child has attained the age of
eighteen years.
The Actin section 13 provides for the variation of a maintenance order once it has been granted
by the court, on the application of the mother, putative father or any person having custody of the
child at any time if the magistrate thinks fit in the circumstances.
According to part VI of the Act, money due under an affiliation order (and indeed under other
maintenance orders) is recoverable like any civil debt, that is to say, one may issue a writ of Fieri
facias, attach the earnings of the putative father or commence garnish proceedings.
8.5.7 CUSTODY OF CHILDREN BORN OUTSIDE MARRIAGE.
The law that governs custody of children born outside marriage is the said Affiliation and
Maintenance of Children Act Cap 64 of the Laws of Zambia.
Part IV of the Acts is the part that deals with custody of children. According subsection(1) of
section 15 of the Act, the court is empowered upon making a maintenance order in favour of a
child, to also make an order with respect to the custody of the child. The subsection also
empowers the court in making an order for the custody of a child in favor of one parent, to also
make an order granting the right of access to the child by the other parent who has been denied
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custody of the child. In addition, the subsection provides that a custody order is effective only
during the period when the maintenance order is in force.
Subsection (2) of section 15 of the Act requires the court to regard the „welfare of the child,‟ as
the paramount consideration in making an order as to the custody or to the child. The subsection
provides that the court should not take into account whether from any other point of view, the
claim of the father in respect of custody is superior to that of the mother, or vice versa. That is,
the court should only regard the „welfare of the child,‟ as the only paramount consideration.
What constitutes „welfare of the child,‟ as the paramount consideration has been stated by the
courts in case law, to include the risk of future corruption of the child, the age of the child, sex
and health. In this regard, the court do not ignore the reality that where children are very young
the mother is often better place to bring them up. Another consideration that the court will take
into account is the effect of separating young children if both are young, and the court refuses to
give custody of the girl to the mother and that of the boy to the father.
Furthermore, subsection (3) of section 15, empowers the court to deny custody of the child to
either of its parents in certain circumstances, and empowers the court to grant custody to any
other person the court may deem fit under the circumstances. The circumstance when the court
may deny custody of the child to either of the parents are;
(a) Where the mother or father of a child is not a fit and proper person to have custody of the
child;
(b) Where the mother of a child has died or become of unsound mind or is serving a term of
imprisonment of more than six months; or
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(c) Where there are exceptional circumstances making it impracticable for the child to be
entrusted to the custody of its parents.
In addition, the Act provides for the appointment of a welfare officer to guide the court on which
party is suitable to have custody of the child. The social welfare officer does this by submitting a
report on the suitability of either party to have custody of the child.
Subsection (4) of section 15 of the Act empowers the court to vary or discharge any order of
custody of the child or access to the child made by the court, or to suspend any provision
therefore temporarily and to revive the operation of any provision so suspended.
It is important to note as stated above, that the paramount consideration that a court must take
into account in making a custody order is that of the „welfare of the child.‟ This entails that the
fact that one parent does not have the means of providing for the child, should not over shadow
the „welfare of the child‟ consideration, by denying such parent without means the custody of the
child if the „welfare of child‟ demands that such parents must have the custody of the child. This
is so in that, „the welfare of the child‟ factor can compel the court to order the parents with the
means, usually the man, to provides the other, (that is mother of the child), and the child, with
adequate accommodation, as well as maintain them.
8.6 SUMMARY
This unit looked at the issue of maintenance of a spouse by the other spouse while their marriage
subsists. In addition, the unit discussed the maintenance of children while their parents‟ marriage
subsists.
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8.7 ACTIVITIES
(a) Can a wife maintain a husband in circumstances where the husband has lost his job? If
so, what is the law on the issue of a wife maintaining her husband during the subsistence
of the marriage?
(b) At what age is a parent not legally obliged to maintenance their own children?
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UNIT NINE: MATRIMONIAL INJUNCTIONS, WARDSHIP OF A
CHILD, GUARDIANSHIP AND FOSTER PARENTING
9.0 INTRODUCTION
This unit introduces the students to the issues of matrimonial injunctions, wardship, guardianship
and foster parenting.
9.1 AIM
The aim of this unit is to introduce students to the issues of matrimonial injunctions, wardship,
guardianship and foster parenting.
9.2 OBJCETIVES
At the end of this unit, the student should be able to understand what is meant by matrimonial
injunction, wardship, guardianship and foster parenting.
9.3 TIME REQUIRED

Minimum amount of time required on this unit is four hours
9.4 REFLECTION
What do you understand by matrimonial injunctions, wardship of a child, guardianship and foster
parenting?
9.5 MATRIMONIAL INJUNCTIONS, WARDSHIP OF A CHILD, GUARDIANSHIP AND FOSTER

PARENTING
9.5.1MATRIMONIAL INJUNCTIONS
The Matrimonial Cause‟s Act No. 20 of 2007, provides in section 101 of the Act, for what is
termed as a matrimonial injunction. The Act in the said section empowers the court with the
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power to grant an injunction upon application made by either party to a statutory marriage. The
injunction may be granted whether or not an application has been made by either party for any
other relief under the Act. It follows that matrimonial injunction under the Act can be granted
without a party having initiated any application for any other relief.
The type of order that the court may grant under the said section of the Act include an order to do
the following;
(a) An order for the personal protection of a party to the marriage or of any child of the
marriage;
(b) An order 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 location of the premises in
which the other party to the marriage resides;
(c) An order restraining a party to the marriage from entering the place of work of the other
party to the marriage or restraining a party to the marriage from entering the place of
work or the place of education of any child of the marriage
(d) An order in relation to the property of a party to the marriage; or
(e) An order relating to the use or occupying the matrimonial home.
The section in addition provides for penalties that the court may impose for failure to comply
with any injunction or order that the court may impose. The section provides that in addition to
the inherent powers of the court to punish for contempt, the court may order a party to pay a fine
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not exceeding two hundred thousand penalty units, or imprison a party to a period not exceeding
three months.
It is important to note that a matrimonial injunction or any order of the court under the said
section 101 of the Act, may be made by the court in instances where there is domestic violence
by either party to the marriage against the other party or against a child of the family.
9.5.2 WARDSHIP OF A CHILD
Wardship is the name given to court proceedings by which a child is made a ward of court.
Wardship is used in exceptional circumstances to safeguard and protect a child‟s welfare.
The main distinguishing characteristics of ward ship are that custody of a child who is a ward is
vested in the court and although day to day care and control of the ward is given to an individual
or a local authority, no important step can be taken in the child‟s life without the court‟s consent.
9.5.2.1 Common circumstance in which a child might be warded
As has been shown above, when a child is made award, the court „takes over the ultimate
responsibility for the child,‟ sharing parental responsibility with those who already hold it, but
exerting control over important decisions. Indeed, no important steps in the child‟s life can be
taken without leave of the court. The most common situations in which the court may grant
wardship of a child and therefore make whatever appropriate order for the child‟s protection are:
(a) order relating to publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
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(d) orders to protect abducted children, or children where the case has another substantial
foreign element;
(e) orders for the return of children to and from another state; and
(f) orders to protect a child from forced marriage.
It is important to note that the above examples are merely illustrative and not conclusive of the
circumstances when wardship of a child may be granted by the court.
In Zambia, the law that provides for wardship of the children is the Matrimonial Causes Act
No.20 of 2007. Section 72 of the Act contains the law as regards wardship of a child of the
family of a statutory marriage.
9.5.2.2 Variation/Discharge of a wardship order
A wardship order, once granted by a court, may be varied or discharged by the court as provided
under section 72(7) of the Matrimonial Causes Act 2007.
9.5.2.3 Who may be warded and who may apply for a wardship order.
According to section 72 subsection (6), any person below the age of twenty-five may be made a
ward of the court. As regards who can apply for wardship, the following can apply for wardship
(a) Any person with a genuine interest in or a relation to the child;
(b) The child
(c) The local authority (with the court‟s permission)
9.5.3GUARDIAN SHIP
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A guardianship is when a person (other than the child‟s parents) has legal custody and control
over another‟s child. The guardian has the right to make all decisions concerning the child, and is
legally responsible for the child. It follows therefore that a Legal Guardian is appointed by the
court, and the responsibility of the guardian over the child typically includes such things as
shelter, education, food and medical care. A Guardian also usually manages the finances of the
child.
Section 72(1) of the Matrimonial Causes Act 2007, empowers the High Court to make a
guardianship order in favour of a child of the family of a statutory marriage who is under the age
of twenty-five years.
In addition, subsection (6) of section 72 empowers the court to vary from time to time a
guardianship order made in favor of a child, until that child attains the age of twenty-five years.
Further, subsection (7) of section 72 empowers the court to vary or to suspend or discharge a
guardianship order made in favor of a child.
9.5.4 FOSTER PARENTING
Foster parenting also known as foster care, is a system in which a minor is placed into a ward,
group home or private home of a state-certified caregiver, referred to as a “foster parent.” The
placement of the child is normally arranged through the government or a social service agency.
The institution, group home or foster parent is compensated for expenses.
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The state, via the family court and child protection agency, stand“in loco parentis”62to the minor,
making all legal decisions while the foster parent is responsible for the day to day care of the
minor.
Foster parenting or foster care should be distinguished from what is known as kinship care.63This
is so in that kinship care is where children are cared for by grandparents or other relatives.
Kinship care is done informally, without the involvement of a court or public organization.
9.6SUMMARY
This unit looked of the issues of matrimonial injunctions, wardship, guardianship and foster
parenting.
9.7ACTIVITIES
(a) What do you understand by the term matrimonial injunction, and in what circumstances
can a matrimonial injunction be issued?
(b) What do you understand by the term wardship, guardianship and foster parenting as
regards children?
62
In loco parentis is the legal responsibility of a person or organization to take on some of the functions and responsibilities of a
parent.
63
Kinship care is the raising of children by grandparents, other extended family members, and adults with whom they have a
close family-like relationship such as grandparents and close family friends because biological parents are unable to do so for
whatever reason.
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UNIT TEN: ADOPTION
10.0 INTRODUCTION
The unit looks at the issues of adoption. The unit introduces the students to the subject of
adoption. The unit will look at what adoption is and the legal requirements for a valid adoption
process as well as the consequences of an adoption order.
10.1 AIM
The aim of the unit is to introduce the student to the concept of adoption. The unit will also
discuss the legal requirement for a valid adoption process as well as the consequences of an
adoption order.
10.2 OBJECTIVES
At the end of the unit, the student should be able to understand the law relating to adoption in
Zambia as well as the consequences of an adoption order.
10.3 TIME REQUIRED

Minimum amount of time required on this unit is four hours.
10.4 REFLECTION
What do you know about adoption?
10.5 ADOPTION
10.5.1DEFINITION OF ADOPTION
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The law that provides for adoption in Zambia is the Adoption Act Cap 54 of the Laws of
Zambia. However, the Act does not define what adoption is, as it simply refers to an adoption
order, as an “order authorizing the applicant to adopt an infant.”64
Adoption can be defined as the legal process whereby a person assumes the parenting of a child
from that child‟s biological or legal parent or parents, and, in so doing, permanently transfers all
rights and responsibilities, along with filiation, from the biological parent or parents to the
adoptive parents.
In other words, adoption is simply the permanent legal transfer of all parental rights and
obligations over a child from the biological or legal parent or parents to the adoptive parents.
10.5.2 Who may be adopted according to The Adoption Act Cap 54
According to section 2 of the Adoption Act Cap54 of the Laws of Zambia, an infant has been
defined as a person who has not attained the age of twenty-one years but, does not include a
person who is or has been married.
It therefore follows from the above that, only a person who has not attained the age of twenty-
one years, provided that person is not or has not been married before can be adopted.
10.5.3 Restrictions on making adoptions orders
It has been noted from above that the effect of adoption is that once an individual adopts an
infant, the biological parents of the infants can lay no claim over the infant against the adoptive
64
Section 3(1) of Cap 54
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parent. That is the rights and obligations of the biological parents over the infants are
extinguished, once the infant is adopted by the adoptive parents.65
The Adoption Act Cap 54 of the Laws of Zambia provides that anybody who is 25 years and
above or who is at least 21 years older than the infant can apply to adopt.
It has to be noted that in most cases, applicants for adoption are couples who may not be able to
have children or may be couples who are generous or charitable. Couples or spouses adopt
children jointly, and once a child is adopted by the couple, it becomes theirs and all legal
conditions applicable to children become applicable to that child as well.
As regards adoption, there are instances where a single biological mother of the child may have
lost her documents evidencing the fact of being a mother to a child. The best thing to do in such
instance is for the mother to adopt her own child, furthermore, even in instances where a woman
may be claiming that a given child belongs to a certain man, that biological father may also have
to adopt their own child to ensure that there is certainty as to who really is the legal father to that
child. There are also instances where one spouse may go into a marriage with a child gotten from
elsewhere.
65
According to section 14(1) of the Adoption Act as regards the effect of adoption, provides as follows: 14(1) Upon an adoption
order being made, all rights duties, obligations and liabilities of the parents or guardians of the infant in relation to the future
custody, maintenance and education of the infant, including all rights to appoint a guardian and to consent or give notice of
dissent to marriage, shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by
and enforceable against the adopter as if the infant were a child born to the adopter in lawful wedlock, and in respect of the
matters aforesaid the infant shall stand to the adopter exclusively in the position of a child born to the adopter in lawful
wedlock. Further subsection (3) of section 14 provides thus: 14(3) For the purpose of the law relating to marriage, an adopter
and the person who he has been authorized to adopt under an adoption order shall be deemed to be within the prohibited
degrees of consanguinity and the provisions of the subsection shall continue to have effect notwithstanding that some other
person other than the adopter is authorized by a subsequent order to adopt the same infant.
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This could be either the woman or man or both. The position of the law is that, the child will
remain the child of its biological parents unless the couple adopts the child. If such adoption is
done, then the child will become that of the couple, and the other biological parent (who is not a
party of that marriage) will lose all his rights and obligations to that child.
As regards the restrictions on making adoption orders, section 4 of the Adoption Act outlines
some of the restrictions that are found under adoption as follows:
Under section 4(1), an adoption order shall not be made in respect of an infant unless the
applicant or, in the case of a joint application, one of the applicants-
(a) has attained the age of twenty-five years and is at least twenty-one years older than the
infant; or
(b) has attained the age of twenty-one years and is a relative of the infant; or
(c) is the mother or father of the infant.
Subsection (2) provides that an adoption order shall not be made in respect of an infant who is
female in favour of a sole applicant who is male, unless the court is satisfied that there are
special circumstances which justify as an exceptional measure the making of an adoption order.
Furthermore, subsection (3)provides that an infant cannot be adopted by more than one person,
that is to say, two males or two females cannot adopt one infant. In the case of joint applicants,
the applicants must be male and female and in any case they must be a couple.
Subsection (4) (a) on the other hand provides that no adoption order will be made except with the
consent of every person or body of person who is a parent or guardian of the infant or who is
liable by virtue of any order or agreement to contribute to the maintenance of such infant.
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Further subsection (4)(b) provides that where the applicants are a couple, no adoption order will
be made unless and until both spouses consent to the adoption order being granted. Where one
spouse is not willing to adopt or does not consent, then the court will not grant the adoption
order.
Subsection 5 requires the infant and the applicant both to be resident in Zambia and the infant
should have been in the care and possession of the applicant for at least three consecutive months
immediately preceding the date of the order, and the applicant has at least three months before
the date of order, notified the commissioner of juvenile welfare66 of his intention to apply for an
adoption order in respect of the infant.
10.5.4Consent to Adoption
As has been noted, consent is an important factor in determining whether the court will grant an
application for adoption. The consent required is that of the parents giving up the child for
adoption and that of the prospective adoptive parents where they are a couple.
However, section 5 subsection (1) of the Act empowers the court to dispense with any consent
required by paragraph (a) of subsection (4) of section 4 if it is satisfied-
(a) in the case of a parent or guardian of the infant, that he has abandoned, neglectedor
persistently ill-treated the infant;
(b) in the case of a person liable by virtue of an order or agreement to contribute to the
maintenance of the infant, that he has persistently neglected or refused so to contribute.
66
The commissioner for Juvenile Welfare is appointed under the provisions of section five of the Juveniles Act Cap 217 of the
Laws of Zambia.
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(c) in any case, that the person whose consent is required cannot be found or is incapable of
giving his consent or that his consent is unreasonably withheld.
Furthermore, subsection (2) of section 5 empowers the court to dispense with the consent of the
spouse of an applicant for an adoption order if satisfied that the person whose consent is to be
dispensed with, cannot be found or is incapable of giving his consent or that the spouses are
separated and are living apart and that the separation is likely to be permanent.
10.5.5 Functions of the court in adoption cases
It is important to note that the court plays a very important role in the adoption process and no
adoption can validly be made away from the court. The court‟s functions in adoption
proceedings are provided for under section 7 of the Adoption Act Cap 54 of the Laws of Zambia.
The functions of the court in adoption proceedings as provided under section 7 of the Act can be
summarized as follows:
(a) To ensure that the person making the consent to adoption understands what he or she was
consenting to. If there is any doubt as to the giving of the consent, then the court will not
grant the adoption order.
(b) The court should be satisfied that the adoption is in the best interest of the child. It is for
this reasons that the court appoints a guardian ad litem67 to speak on behalf of the child.
(c) To ensure that once an adoption order has been granted, it is registered with the Registrar
General of Births and Deaths.
67
The Registrar -General of Births and deaths is appointed pursuant to the provisions of section three of the Births and Deaths
Registration Act.
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10.5.6 Effects of an Adoption Order
The effects of an adoption order are provided for in section 14 of the Adoption Act, and these
can be summarized as follows:
(a) The most significant effect of an adoption order to which the parents should seriously
address their minds is that the rights or obligations of the biological parents to the child
are extinguished upon the granting of the adoption order. For example, the right of the
biological parents to give consent to marriage where the child is to get married below the
age of 21 years old, will be extinguished and that it will now have to be the adoptive
parents to give that consent.
(b) If prior to the adoption the child was being maintained under an Affiliation and
Maintenance order, that order is extinguished at adoption.
10.5.7 Prohibition of Certain Payments in Relation to Adoption
It is important to mention that an adoption order should be done purely for the benefits of the
child, therefore, where any person be it the biological parents or the adopter receives any cash
gratification or another form of payment or reward in relation to the intended adoption, that
person would have contravened section 30(1) of the Adoption Act and shall therefore be guilty
of an offence.
The general rule is that an adoption order must only be granted by the court if it is in the interest
of the child. It is for this reason that the court will, always appoint a guardian ad litem under
section 10(2) of the Adoption Act. The function of a guardian ad litem in adoption proceedings is
to safe guard the interest of the infant before the court. The guardian ad litem ensures that the
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intended adoption meets all the requirements and paramouncy that it is in the interest of the child
to be adopted.
10.5.8 REGISTRATION OF ADOPTION
Section 11 of the Adoption Act requires every adoption order made by the court to be registered
with the Registrar -General in the Adopted Children Register maintained by the Registrar.
10.6 SUMMARY
(a) This unit looked at the issues of adoption and the legal consequences of an adoption order.
10.7ACTIVITIES
(a) What do you understand by the term adoption?
(b) What are the legal requirements for a valid adoption process?
(c) What do you think is the role of a court in adoption proceedings?
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UNIT ELEVEN: LEGITIMACY
11.0 INTRODUCTION
This unit looks at the issue of legitimacy. The unit introduces the students to the subject of
legitimacy and its legal implications.
11.1 AIM
The aim of this unit is to introduce the student to the subject of legitimacy.
11.2 OBJECTIVES
At the end of the unit, the student should be able to explain the meaning of legitimacy and the
implications of legitimacy to a child.
11.3 TIME REQUIRED

11.4 REFLECTION
What do you know about legitimacy? In your view, do you think it is necessary to have a law
that provides for legitimacy of a child.
11.5 WHAT IS LEGITIMACY?

The law that governs legitimacy in Zambia is the Legitimacy Act, Chapter 52 of the Laws of
Zambia. Legitimacy simply refers to the status of a child at birth. Where a child is born in
lawful wedlock, that is, to parents who are married to each other, such child is legitimate. A
child is illegitimate when he or she is born to parents who are not married to each other. The law
presumes that a child born in marriage is legitimate. That is, a husband is deemed to be the father
of a child as long as a child is conceived by or born to his wife during their marriage. This
presumption is however reputable if the husband can show that he is not the father. Proof of
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paternity is now very possible through a DNA 68 test if the parties consent. Paternity is also
rebuttable if the child is of a questionable physical appearance, for instance if born a mulatto,
that is, of mixed black and white parentage when both parents are black or white. Though in the
New Zealand case `of Ah Chuck v Needham 69 Physical appearance was not admitted in
evidence to rebut the presumption of legitimacy notwithstanding the Chinese features in the child
born to European parents and the mother had previously had a love affair with a Chinese
gardener. The court said that “there was no accounting for the vagaries of nature.”
Paternity may be reputable if the child is born at full term (nine months) when the relationship of
the parties is of a shorter duration; or if intercourse was not possible during the period the child
was born, for instance, for the reason that the father was away, unless the conception was a result
of artificial insemination using the husband‟s sperms.
11.5.0THE EFFECTS OF THE LEGITIMACY ACT
The effects of the Legitimacy Act is that it offers legal disadvantages to children born from
parents who are not married to each other also known as illegitimate children. The Act makes it
legal to deny the so called illegitimate children rights such as the right to maintenance from the
father of the child, as well as the right for such a child to inherit from its father. The Act only
provides these rights to legitimate children and according to the Act an illegitimate child can
only be legitimated if the parents to that child get married to each other. The Act also does make
provision as regards the circumstances when children of a void and voidable marriage will be
regarded as legitimate children of the couple.
68
Deoxyribonucleic acid is the test used to establish parentage using the blood, semen, hair roots etc. of a person who
th
disputes parentage see SM Cretney and J.M Masson: Principles of Family Law 6 ed at 631.
69
1931 NZLR 559, Anthony Dickey Family Law Op cit.
Page | 132
It is important to state that the Legitimate Act is not in conformity with other Zambian laws that
have been enacted later on after the Legitimate Act was enacted, which laws were enacted to
protect the very rights of children which the Legitimate Act is denying to children. The examples
of such laws are:
(i) The Affiliation and Maintenance of Children Act Cap 64 of the Laws of Zambia. The
essence of this Act is to affiliate a child born outside wedlock to the putative father and
once affiliated to the putative father, the Act provides in section 6 that the court can then
order a putative father to provide maintenance to the child. It therefore follows that this
Act makes provision for the maintenance of a child born outside wedlock by its father,
which the Legitimacy Act does not do.
(ii) The Wills and Administration of Testate Estates Act Cap 60 of the Laws of Zambia and
the Intestate Succession Act Cap 59 of the Laws of Zambia both give the right of
inheritance to a child whether the child is born outside wedlock or not. According to
both Acts, a child can inherit from both parents that is from the father or mother
notwithstanding that the child is born outside wedlock. In fact, both Acts define child in
their definition section as a child born inside or outside marriage, an adopted child or a
child who is conceived but not yet born.70
(iii) It must be emphasized that there is need to harmonize the Legitimacy Act with the laws
of maintenance and inheritance to remove any doubt or conflict as to the status of
children born out of wedlock. As has been shown, illegitimate children no longer suffer
any legal disadvantages. Even terms as „bastards,‟„bush‟ or „roadside‟ 71 children or
“filius nullius” (child of nobody) which terms were used to describe children born
70
See section 2 of the Intestate Succession Act Cap 59 and section 3 of the Wills Act Cap 60.
71
Anthony Dickey Family Law Op cit, page 272
Page | 133
outside wedlock, are no longer used to describe them. At common law in the Eighteenth
century, an illegitimate child was referred to as a bastard and as such the child had no
heritable blood. He or she had no legal right to be maintained by his father, nor could
he/she inherit property from his father and no one could inherit through him or her.72
Law reform has changed this even in England. This is so in that in England, the Family
Law Reform Act of 1987 has ended the distinction between children, based on the
marriage status of their parents.73
At international law, the 1989 United Nations Convention on the Rights of the Child brought a
new and important [perspective to children‟s rights. It applies to all children without
discrimination and lists children‟s basic human rights as including rights to name, nationality,
identity, privacy and liberty; civil and political rights - freedom of expression, thought,
conscience/religion and assembly; economic and social rights – health care, standard of living
and social security, and cultural rights, among other rights.
11.5.1SALIENT FEATURES OF THE LEGITIMACY ACT
The Legitimacy Act in the preamble states as follows:
“An Act to amend the law relating to children born out of wedlock; and to provide for matters incidental
thereto”
The Act defines the “date of legitimation” in Section 2 (a)(b).74
72
SM Cretney and J M Masson Op cit, page 603.
73
See the Summary of the provisions of the UNCRC.
74 st
“The appointment date” means the 1 January 1966 per section 2 of the Act.
Page | 134
Section 3 of the Act is the provision that provides for legitimation of a child by the subsequent
marriage of the parents of the child. The provision provides as follows:
(1) Subject to the provisions of this section, where the parents of an illegitimate person marry or
have married one another….. the marriage shall, if the father of the illegitimate person was or is
domiciled in the Republic, reader the person, if living, legitimate-
(a) in the case of a legitimated person whose father or mother was married to a third person when
he was born the date of the marriage leading to legitimation where the marriage occurred before
the appointed date,75 the appointed date,76 or person whose father or mother was married to a
third person when he was born, from the appointed date (1 st January 1966) or from date of
marriage, whichever last happens; or
(b) in any other case, from the commencement of this Act, or from the date of the marriage,
whichever happens last.
11.5.2 RIGHT TO SUCCESSION AS PROVIDED UNDER THE LEGITIMACY ACT
As has been discussed above, the Legitimacy Act has not been reviewed since 1965 when it was
amended by way of Statutory Instrument no. 152 (of 1965) which was passed soon after
independence. It has therefore not been harmonized with recent developments and amendments
in other laws that apply to children as demonstrated above. For example, Section 3(2) provides
that:
3(2) The legitimation of a person under this Act does not enable him or his spouse, children
or remoter issue to take any interest in real or personal property save as is hereinafter
in this Act expressly provided.”
The above provision of the Legitimacy Act puts limits on the rights of a person born outside
wedlock (the so called illegitimate person) to inherit or for others to inherit from him unless as
provided by the Act, yet, the Intestate Succession Act and the Wills Act both provide that a child
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born in or out of marriage is entitled to inherit from a parent, as long as parentage is not in
dispute.
Section 7(1) of the Legitimacy Act provides thus:
a legitimated person and his spouse, children or more remote issue shall be entitled to take any interest-
(a) in the estate of an intestate dying after the date of legitimation;

(b) under any disposition coming into operation after the date of legitimation;
(c) by descent under an entitled interest created after the date of legitimation;
The effect of the above provisions is that the rights to property accrue to a person born out of
marriage only if the person has been legitimated by subsequent marriage of the person‟s parents.
By Section 7(2) “where the right to any property, real or personal, depends on the relative
seniority of the children of any person, and those children include one or more legitimated
persons, the legitimated person or persons shall rank as if he or they had been born on the day
when he or they became legitimated by virtue of this Act, and if more than one such legitimated
persons became legitimated at the same time, they shall rank as between themselves in order of
seniority.”
Again, this provision in essence simply provides that the right to any property by any persons
will only arise if such persons are legitimated persons.
Section 13 provides for the right to succession and provides:
(1) Where, after the commencement of this Act, the mother of an illegitimate child, such child not being a legitimated
person, dies intestate as respects all or any of her real or personal property, and does not leave any legitimate
issue surviving her, the illegitimate child, or, if he is dead, his issue, shall be entitled to take any interest therein to
which he or such issue would have been entitled if he had been born legitimate.
(2) Where, after the commencement of this Act, an illegitimate child, not being a legitimated person, dies intestate in
respect of all or any of his real or personal property, his mother if surviving shall be entitled to take any interest
therein to which she would have been entitled if the child had been born legitimate and she had been the only
surviving parent.
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The essence of these provisions is that they are allowing an illegitimate child to inherit the estate
of its mother but not that of the father as the provision does not provide for the child to inherit
from the father.
11.6 RIGHTS OF CHILDREN OF VOID AND VOIDABLE MARRIAGES

In the case of children of void marriages, Section 4 provides as follows:
4.(1) Subject to the provisions of this section, the child of a void marriage, whether born before or after
the appointed date, shall be treated as the legitimate child of his parents if at the time of the act of
intercourse resulting in the birth (or at the time of the celebration of the marriage if later) both or
either of the parties reasonably believed that marriage was valid.
(2) This Section shall apply, where the father of the child was domiciled in the Republic at the time of
the birth or, if he died before the birth, was so domiciled immediately before his death.
(3) The provisions of this section shall not affect-
(a) any rights under the intestacy of a person who died before the appointed date;
(b) the operation or construction of any disposition coming into operation before the appointed date;
(4) In this section, “void marriage” means a marriage, not being voidable only, in respect of which the
High Court has or had jurisdiction to grant a decree of nullity or would have had such jurisdiction
if the parties were domiciled in the Republic.
Section 5 provides for the legitimacy of children of voidable marriages as follows:
“Where a decree of nullify is granted in respect of a voidable marriage, any child who would have been
the legitimate child of the parties to the marriage if it had been dissolved instead of being annulled, at
the date of the decree shall be deemed to be their legitimate child notwithstanding the annulment.”
Section 10 provides that a legitimate person has the same rights as a person born legitimate. It
“A legitimated person shall have the same rights, and shall be under the same obligations in respect of
the maintenance and support of himself or of any other person as if he had been born legitimate, and,
subject to the provisions of this Act, the provisions of any Act relating to claims for damages,
compensation, allowance, benefit, or otherwise by or in respect of a legitimate child shall apply in like
manner in the case of a legitimated person.”
By Section 13(1)
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“Where, after the commencement of this Act, the mother of an illegitimate child, such child not being a
legitimated person, dies intestate as respects all or any of her real or personal property, and does not
leave any legitimate issue her surviving, the illegitimate child, or, if he is dead, his issue, shall be entitled
to take any interest therein to which he or such issue would have been entitled if he had been born
legitimate.”
11.7 SUMMARY
This unit looked at legitimacy and its legal implications.
11.8 ACTIVITIES
(a) What is the law that provides for legitimacy in Zambia?
(b) In your view, do you think it is necessary to have a law on legitimacy in Zambia?
(c) Do you think the Legitimacy Act creates any conflicts with other Zambian laws?
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UNIT TWELVE: CUSTODY OF CHILDREN
12.0 INTRODUCTION
This unit introduces the students to the issue of custody of children. It is important to note that
custody of children does arise in certain circumstances such as when the parents are on judicial
separation, in circumstances where the marriage is dissolved through divorce or where the
marriage is annulled.
In addition, custody of children also arises in circumstances when the child is born outside
wedlock.
12.1 AIM
The aim of this unit is to introduce the student to the issue of custody of children in different
circumstances.
12.2 OBJECTIVES
At the end of this unit, the student should be able to demonstrate an understanding of the law
relating to custody of children under different circumstances.
12.3 TIME REQUIRED

12.4 REFLECTION
Do you think that it is necessary to have a law that governs the custody of children under
different circumstances? if so, why do you think it is necessary to have such as law?
12.5 CUSTODY
12.5.1 MEANING OF THE TERM CUSTODY OF CHILDREN AND THE

CIRCUMSTANCES UNDER WHICH CUSTODY OF CHILDREN ARISES
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Custody of children can take two types of forms, that is, physical custody and legal custody.
Legal custody also takes two forms that is, joint legal custody and sole legal custody.
(a) Physical Custody
Physical custody means that a parent has the right to have a child live with him or her. It is not
unusual for court to grand joint physical custody of a child. When this happens, it entails that
both parents will have the right to live with the child. Joint physical custody works best if parents
live relatively close to each other, as it lessens the stress on children and allows them to maintain
a somewhat normal routine.
Where the child lives primarily with one parent and has visitation with the other, generally, the
parent with whom the child primarily lives with (called the “custodial” parent) will have sole or
primary physical custody and the other parent (the non-custodial parent) will have the right to
visitation or parenting time with his or her child.
(b) Legal Custody
Legal custody of a child means having the right and the obligation to make decisions about a
child‟s upbringing. A parent with legal custody can make decisions about the child‟s schooling,
religious upbringing and medical care, for example. It is not un usual for courts to award joint
legal custody, which means that the decision making is shared by both parents.
Where parents have joint legal custody one parent cannot exclude the other from the decision-
making process over the child. This is so in that excluding one parent from decision-making
process over a child they have joint custody, entitles them to enforce the joint custody over the
other parent.
(c) Sole Custody
One parent can be either the sole legal custody or sole physical custody of a child. Courts
generally do not hesitate to award sole physical custody to one parent if the other parent is
deemed unfit for example, because of alcohol or drug dependency or charges of child abuse or
neglect.
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However, it is important to note that courts in most cases are moving away from awarding sole
custody to one parent and are mostly encouraging giving joint custody to both parents because of
the role both parents play in their children‟s lives. Even where courts do award sole physical
custody, the parties often still share joint legal custody, and the non-custodial parent enjoys a
generous visitation schedule. In these situations, the custodial parent would be deemed the
primary physical care taker, while the other parent would have visitation rights under a parenting
agreement or schedule.
12.5.2CIRCUMSTANCES WHEN CUSTODY ISSUES ARISE
It is important to note that the issues of custody do arise in various circumstances. The following
are the circumstances in which the issues of custody does arise.
(a) When parents are under judicial separation

(b) When the marriage is dissolved through divorce
(c) When the marriage is annulled
(d) When the child is born outside wedlock.
(a) Custody of children when parents are under judicial separation
As has been discussed already, the issue of custody of children does arise when parents are under
judicial separation. Where the marriage is a civil marriage, the issue of custody will arise, and
custody of children while the parents are under judicial separation is provided under section
72(1) of the Matrimonial Causes Act No.20 of 2007.
It is also possible for a court to make a custody order as regards children born under a customary
marriage when their parents are under judicial separation as provided under section 35(1)(f) of
the Local Court Act Cap 29 of the Laws of Zambia.
(b) Custody of children when the marriage is dissolved through divorce.
The issue of custody of children also arises when the marriage is dissolved through divorce.
Where the marriage was a statutory marriage, the issues of custody of children upon the
dissolution of such marriage are provided for under section 72(1) of the Matrimonial Causes Act
No. 20 of 2007.
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Where the marriage was a customary marriage, nothing stops the Local Court from making a
custody order in relation to the children of the family as provided under section 35(1)(f) of The
Local Courts Act Cap 29 of the Laws of Zambia.
(c) Custody of children when the marriage is annulled
The issue of custody of children will arise in situations where the marriage has been annulled.
This is so in relation to civil law marriages. Where the marriage is a civil marriage and such
marriage is annulled, section 72(1) of the Matrimonial Causes Act does provide for the custody
of the children of such marriage that has been annulled.
Under customary law, this may not be the case as there is no nullity of marriage under customary
law.
(d) Custody of children born outside wedlock
The issue of custody of children will also arise in circumstances where the child is born outside
wedlock. The law that provides for the custody of children born outside wedlock is the
Affiliation and Maintenance of Children Act Cap 64 of the Laws of Zambia.
Section 15(1) of the Act empowers the court to make a custody order in relation to a child born
outside wedlock
12.6SUMMARY
This unit looked at the issue of custody of children which arises under different circumstances.
The unit discussed the meaning of custody of children as well as the various types of custody
orders. In addition, the unit discussed the law relating to custody under different circumstances.
12.7ACTIVITIES
(a) What do you understand by the term custody of children? In addition, explain the
different types of custody orders that exist.
(b) Explain the law relating to custody of children under different circumstances.
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UNIT THIRTEEN: SUCCESSION AND INHERITANCE
13.0INTRODUCTION
This unit introduces the student to the law relating to succession and inheritance. This unit will
discuss both intestate succession and testate succession.
13.1 AIM
The aim of this unit, is to introduce the student to the law relating to intestate and testate
succession.
13.2 OBJECTIVES
At the end of this unit, the student is expected to demonstrate an understanding of the law
relating to intestate and testate succession.
13.3TIME REQUIRED
13.4 REFLECTION
What do you understand by the term intestate and testate succession? What laws of succession
do you know?
13.5 SUCCESSION
13.5.1 DEFINITION OF INTESTATE SUCCESSION
The law that governs intestate succession in Zambia is the Intestate Succession Act Cap 59 of the
Laws of Zambia. According to section 4 of the Act, a person dies intestate if at the time of his
death he has not made a valid will disposing of his estate. In addition, a person who dies leaving
a valid will disposing of part of his estate has died intestate in respect of that part of his estate
which is not disposed of in the will.77
77
Section 4(1) (2) of the Intestate Succession Act.
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13.5.1.1Distribution of Estate
Section 5of the Act, deals with the distribution of the estate of the deceased, and accordingly, the
section gives 50% of the estate to the children of the deceased proportionate to their needs. Child
according to the Act, has been defined in section 3 to mean a child born in, or out of marriage, an
adopted child, a child who is conceived but not yet born. The section further gives 20% of the
estate to the surviving spouse(s) proportionate to the duration of marriage or factors such as
contribution to the acquisition of matrimonial property. The section also gives 20% of the estate
to the parents of deceased, and 10% of the estate to the deceased‟s dependants in equal shares,
provided a “priority dependant”78 can apply for adjustment of his / her share if circumstances
necessitate the portion to be enlarged. If part of the portion to be touched was covered in a will,
then that Will, will be adjusted accordingly to give the priority dependant more than stipulated.
This is provided for in the proviso to section 5.
By section 5(2)
“the share of the estate inherited by a minor shall be held for him or her by his/her parent or, legal
guardian.”
Section 5 concludes the list of beneficiaries. However, by section 6, near relatives 79 may also
inherit if special circumstances exist. In the absence of near relatives, the estate vests in the State
bona vacantia.
78
"priority dependant" means a wife, husband, child or parent.
79
By section 2 "near relative" means issue, brother, sister, grandparent and other remoter descendants of the deceased.
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Section 6 provides for distribution of the estate where the intestate is survived by no spouse but
by other categories of beneficiaries; while section 7 provides for distribution of the estate where
the intestate is survived by a spouse, but not by other categories of beneficiaries.
According to section 6, where an intestate leaves -
(a) no spouse, the portion of the estate which the spouse would have inherited shall be distributed to
the children in such proportions as are commensurate with a child's age or educational needs or
both;
(b) no spouse or children; the aggregate portion of the estate which the spouse and children would
have inherited shall be distributed equally to the parents of the deceased;
(c) no spouse, children or parents, the estate shall be distributed to dependants in equal shares;
(d) no spouse, children, parents, or dependants, the estate shall be distributed to near relatives in
equal shares;
(e) no spouse, children, parents, dependants or near relatives, the estate shall be bona vacantia and
shall devolve upon the State.
According to section 7 where an intestate is survived by -
(a) a spouse, children, dependants but no parents, the proportion of the estate which the parents would
have inherited shall be shared equally between the surviving spouse and children on the one hand
and the dependants on the other;
(b) a spouse, parents, dependants but no children, the portion of the estate which the children would
have inherited shall be distributed to the surviving spouse, parents and dependants in proportion to
their shares of the estate as specified in section five;
(c) a spouse, children, parents but no dependants, the portion which the dependants would have
inherited shall be distributed equally to the parents;
(d) a spouse and dependants but no children or parents, the portion of the estate which the children
and parents would have inherited shall be distributed to the surviving spouse and the dependants in
proportion to their shares of the estate as specified in section five;
(e) a spouse and children but no parents or dependants, the portion of the estate which the parents and
dependants would have inherited shall be shared equally among the surviving spouse on the one
hand and the children on the other;
(f) a spouse but no children, parents or dependants, the portion of the estate which the children,
parents and dependants would have inherited shall be distributed equally between the surviving
spouse on the one hand and the near relatives on the
Section 8 provides for the devolution of personal chattels in monogamous marriages. The section
provides that where the intestate of a monogamous marriage is survived by a spouse or child or
both, the spouse or child or both of them, as the case may be, shall be entitled equally and
absolutely to the personal chattels of the intestate.
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On the other hand, section 9 provides for the devolution of the estate where the estate of the
intestate includes a house. The section provides that the surviving spouse or child or both, shall
be entitled to that house. However, subsection (a) of section 9 provides that where there is more
than one surviving spouse or child or both, they shall hold the house as tenants in common; and
further subsection (b) of section 9 provides that the surviving spouse shall have a life interest in
that house which shall determine upon that spouse's remarriage.
Further, subsection (2) of section 9 provides that where the estate includes more than one house
the surviving spouse or child or both shall determine which of the houses shall devolve upon
them and the remainder shall form part of the estate.
Section 10 (a) (b) provides for the devolution of the homestead and common property in
polygamous marriage. The said provisions provide that where the intestate is survived by more
than one widow or a child from any of them, then, each widow or her child or both of them shall
be entitled-
(a) absolutely to the homestead property of the intestate; and
(b) in equal shares to the common property of the intestate.
Section 11 (a) (b) provides for the devolution of estates not exceeding K30. The said provisions
of section 11 (a) (b) provide that where the total value of the estate does not exceed K30, the
estate shall-
(a) devolve upon the surviving spouse or child of the intestate or to both; or
(b) where there is no surviving spouse or children, devolve upon the surviving parent .
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Section 12 empowers the Minister, to vary by statutory instrument, the maximum value of the
estate prescribed under section eleven. While section 13 allows a beneficiary to transfer his/her
share of the estate to a priority dependant.
13.5.1.2 Offences for depriving a beneficiary of their benefit
Section 14 provides for offences for depriving a beneficiary of their benefit. Section 14 provides
thus:
14. Any person who-
(a) unlawfully deprives any person of the use of-

(i) any part of the property of the deceased to which that person is entitled under this Act; or
(ii) any property shared with the deceased to which this Act applies; or
(b) otherwise unlawfully interferes with the use by any person of any property referred to in
paragraph (a);
shall be guilty of an offence and liable on conviction to a fine not exceeding seven hundred and fifty penalty units or
imprisonment not exceeding two years, or both.
13.5.1.3 Administration of the estate
As regards administration of the estate, section 15 subsections (1)(2)(3)(4)(5) provides for the
granting by the court of letters of administration upon intestacy. The said provisions provide as
follows:
15 (1) Where the deceased has died intestate the court may, on the
application of any interested person, grant letters of administration of the estate to that
interested person.
(2) Subject to section sixteen where more than one person applies for letters of
administration, the court may make a grant to any one or more of them, and in the
exercise of its discretion the court shall take into account greater and immediate interests
in the deceased's estate in priority to lesser or more remote interests.
(3) Where no person applies for letters of administration, letters of administration may be
granted to the Administrator-General or to a creditor of the deceased.
(4) Where it appears to the court to be necessary or convenient to appoint some person to
administer the estate or any part of it other than the person who under subsection (1) in
ordinary circumstances would be entitled to a grant of letters of administration, the court
may, having regard to consanguinity, amount of interest, the security of the estate and the
probability that it will be properly administered, appoint such person as it thinks fit to be
administrator.
(5) Where letters of administration are granted under subsection (4) the grant may be limited
or not limited as the court thinks fit.
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Section 16 subsections (1) and (2) provides for the number of administrators that may be
appointed in respect of the estate of the intestate. The said provisions allow for the appointment
of up to four administrators at one given time. Further the provisions provide that were there is
abeneficiary who is a minor, or a beneficiary who has a life interest in the estate, then, letters of
administration should be granted to the Administrator-General, to a trust corporation solely or
jointly with an individual or to not less than two individuals. The said provisions of section 16
subsection (1) and (2) provide as follows:
16. (1) Letters of administration shall not be granted to more than four persons in respect of the
same estate and if there is a minority or a life interest, letters of administration shall be
granted to the Administrator-General, to a trust corporation solely or jointly with an
individual or to not less than two individuals.
(2) If there is only one administrator (not being a trust corporation or the Administrator-
General) then, during the minority of a beneficiary or the subsistence of a life interest,
the court may appoint one or more administrators in addition to the existing
administrator.
By section 17 a lawyer may be appointed to act as administrator pending the appointment of the
Administrator. This may arise for example, where the Administrator is out of the country, or
when there are some other delays in applying for letters of administration by the Administrator.
Section 18 empowers the court to appoint an Administrator pending the determination of any
proceedings before court regarding the obtaining or revocation of any grant of letters of
administration. This type of Administrator is known as “Administrator pendete lite” (that is
Administrator pending litigation). The said section 18 provides as follows:
18. Pending the determination of any proceedings for obtaining or revoking any grant of letters of
administration, the court may appoint an administrator of the estate of the deceased person, who
shall have all the rights and powers of a general administrator other than the right of distributing
the estate, and an administrator so appointed shall be subject to the immediate control of the court
and shall act under its direction.
Section 19 provides for duties and powers of Administrators, which include to pay debts and
funeral expenses, as well as effect distribution of the estate in accordance with the rights and
entitlements of the beneficiaries. An Administrator must account for the property, and can apply
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to Court to sell if doing so is in the best interest of the beneficiaries. In addition, subsection (2) of
section 19 requires the Administrator to obtain the best price, and can only sell upon getting a
Court Order. The said section 19 provides:
19 (1) The duties and powers of an administrator shall be- to pay the debts and funeral expenses
of the deceased and pay estate duty if estate duty is payable;
(a) to effect distribution of the estate in accordance with the rights of the persons interested in the
estate under this Act;
(b) when required to do so by the court, either on the application of an interested party or on its
own motion-
(i) to produce on oath in court the full inventory of the estate of the deceased; and
(ii) to render to the court an account of the administration of the estate.
(2) Where an administrator considers that a sale of any of the property forming part of the estate of
a deceased person is necessary or desirable in order to carry out his duties, the administrator
may, with the authority of the Court, sell the property in such manner as appears to him likely to
secure receipt of the best price available for the property. On the other hand, section 20 provides
for the manner in which powers of several administrators is to be exercised. The section provides
that in the absence of any direction to the contrary contained in the letters of administration, the
powers of several administrators shall be exercised by the majority of them.
Section 21 provides for the administration of trust property. The section provides as follows:
21 Where a person dies leaving property of which he was the sole or surviving trustee, or in which he
had no beneficial interest on his own account and leaves no administrator or leaves one who is
unable or unwilling to act as such, letters of administration, limited to that property, may be
granted to the beneficiary, or to some other person on his behalf.
Section 24 provides for the effect of letters of appointment of Administrator. The section
24 (1) Subject to any limitations and exceptions contained in a grant of letters of administration the grant
entitles the administrator to all rights belonging to the deceased as if the administration had been
granted at the moment after his death except that letters of administration shall not render valid
any intermediate acts of the administrator tending to the diminution or damage of an intestate's
estate.
13.5.1.4 Effect of grant of letters of administration

(2) Subject to subsection (1), letters of administration shall have effect over the whole of the estate of the deceased throughout
Zambia and shall-
(a) be conclusive against all debtors of the deceased and all persons holding any property of the
deceased;
(b) afford full indemnity to all debtors paying their debts, and all persons delivering up that property
to the administrator.
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Section25 provides for circumstances where there is death of one of several Administrators. The
section provides thus:
25 Where letters of administration have been granted to more than one administrator and one of them
dies, the representation of the estate to be administered shall, in the absence of any direction in the
grant, accrue to the surviving administrator. On the other hand, section 26 provides for what
happens on the death of a sole or surviving administrator. The section provides that upon such
death, letters of administration may be granted in respect of that part of the estate not fully
administered, and that in granting the letters of administration the court should have regard to the
original grants. On the other hand, section 27 provides for what should happen when a limited
grant has expired by effluxion of time, or an event has happened upon which the grant was limited
and there is still some part of the deceased's estate unadministered. The section provides that
letters of administration may be granted to those persons to whom original grants might have been
made.
Section 28 is the provision that provides that the court may as a condition of granting letters of
administration to any person, require one or more sureties to guarantee, within any limit to be
imposed by the court, any loss which any person interested in the administration of an estate may
incur in consequence of a breach by the administrator. However, the section provides that no
guarantee will be required where administration of the estate is granted to the Administrator –
General.
Section 29 is the provision that provides for the revocation of letters of administration. The
section provides the circumstances as to when letters of administration may be revoked to be as
follows:
(a) that the proceedings to obtain them were defective in substance;

(b) that the grant was obtained fraudulently;
(c) that the grant was obtained by means of an untrue statement of a fact essential in point of law to
justify the grant, though that statement was made in ignorance or inadvertently;
(d) that the grant has become of no use and inoperative;
(e) that the person to whom the grant was made has, without reasonable cause failed, to furnish an
account of his administration after having been lawfully called upon to do so, or has prepared an
account which is untrue in a material particular.
Furthermore, subsection (2) of section 29 provides that where the court is satisfied that proper
administration of the estate and the interests of the persons beneficially entitled to them so
require, it may-
(a) suspend or remove an administrator;
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(b) provide for the succession of another person to the office of that administrator who shall cease to
hold office; and
(c) provide for the vesting in the successor of any property belonging to the estate.
Section 30 provides for the payment of administrators as well as payments made to
administrators whose grants have been revoked. The section provides as follows:
30 (1) Where letters of administration are revoked, all payments made in good faith to any administrator
under the letters of administration before the revocation of those letters shall, notwithstanding the
revocation, be a legal discharge to the person making the payment.
Payment of or to administrators whose grants are revoked
(2) An administrator who has acted under any revoked letters of administration may retain and
reimburse himself out of the assets of the deceased in respect of any expenses incurred by him or
fees paid out by him which any person to whom letters of administration are afterwards granted
could have lawfully incurred or paid.
Section 31 provides for the surrender of revoked letters and states that:
31 (1) where letters of administration are revoked under this Act, the Court shall order the person to
whom the grant was made to deliver up the letters to the court immediately.
(2) A person who willfully and without sufficient cause fails to deliver up the letters of administration,
in accordance with subsection (1), shall be guilty of an offence and liable upon conviction to a fine
not exceeding one hundred and twenty-five penalty units or to imprisonment not exceeding three
months, or both.
13.5.1.5General provisions as regards succession
Part IV of the Intestate Succession Act makes general provisions as regards intestacy.
Section 32 provides for the appointment of guardians for minors, and gives a right to the
guardian to sell the minors property provided it is in the interest of the minor to do so. In
addition, the guardian so appointed has authority to represent the minor in any court proceedings
relating to the administration of the estate. By section 33, the guardian has no pecuniary interest
in the estate and can only meet actual costs from the estate only on expenses incurred in the
proper care and management of the estate. Section 34 provides that an administrator or guardian
shall not derive any pecuniary benefit from his office.
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Section 35 deals with offences by administrators or guardians. The provision provides that an
administrator or guardian who deprives a minor of his / her benefit, commits a crime and can be
fined up to five hundred penalty units or sentenced to up to 1 year or can be both fined and
sentenced.
In addition, the said provision provides that whatever is taken / stolen from the infant is
recoverable, or if it is no longer available (thus not recoverable) its economic value shall be
recovered from the offender. In addition, the provision further provides that the guardian or
administrator‟s appointment may be revoked.
Section 36 is the provision that prevents any beneficiary who intentionally causes the death of
the deceased from inheriting from that deceased. The section provides as follows:
36 Any beneficiary who intentionally causes the death of the deceased shall forfeit the right to inherit
any part of the property of the deceased.
Section 40 makes provision on presumption of death. The provision provides that where two or
more people die together, as in an accident, and it is not possible to determine who died first, the
younger is deemed to have survived the order. The provision provides as follows:
40 For the purpose of this Act where two or more persons have died in
circumstances rendering it uncertain which of them survived the other or others,
the deaths shall, for all purposes affecting rights in, to or over property, be presumed to have
occurred in order of seniority, and accordingly the younger shall be deemed to have survived the
elder.
Section 42 provides for other matters that the Court shall have jurisdiction to determine. The
section provides thus:
42 On application in the prescribed manner, by an interested person, a court
shall have jurisdiction in relation to a deceased person's estate-
(a) to decide whether or not the deceased person died intestate;

(b) to decide what is the property to which the deceased person was entitled at the date of his death;
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(c) to decide how the distribution of the property forming part of a deceased person's estate should
be carried out;
(d) to order the sale or other disposition of property belonging to a deceased person's estate for the
purpose of paying the debts of the deceased or for the purpose of distribution;
(e) to appoint a guardian in place of a guardian who has acted improperly, or who has died.
Section 44 provides for Transfer of applications for orders relating to succession to High Court.
The provision provides thus:
44 (1) A subordinate court or a local court to which application is made
under this Act shall transfer the application to the High Court if-
(a) the subordinate court or the local court is satisfied that an interested party has made
application to the High Court for an order relating to the administration or distribution of the
estate of the deceased to which the application relates; and
(b) the subordinate court or the local court is satisfied that it is in the interests of justice to
transfer the application to the High Court or that it is otherwise necessary to seek directions
from the High Court as to the correctness or legality of the application or order to be made
thereunder; or
(c) the subordinate court or the local court is so ordered or directed by the High Court.
Where an application is transferred to the High Court under subsection (1) the High Court shall
make such order or give such directions in relation to it as it considers fit.
See the following Cases on intestacy:
Mwalimu Beauty Nanyangwe Mbobola v Chansa Mbobola 1994/HP/213
Florence Mwnanamwale Billigsley v Estate of the Late Dr. John Billigsley 1994/HP/1563
13.5.2 TESTATE SUCCESSION
The law that governs testate succession in Zambia is the Wills and Administration of Testate
Estates Act cap 60 of the laws of Zambia (herein after referred to as the Wills Act). Testate
succession entails a situation where a person dies having made a valid Will determining how his
estate must be inherited. According to section 2 of the Wills Act, "testator" means a person who
has made a valid will. A Will is simply a legal document by which a person, the testator,
expresses his or her wishes as to how his or her property is to be distributed at death, and names
one or more persons, the executor, to manage the estate until its final distribution. It follows
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therefore that if a person‟s wish is that his or her property be inherited or shared among relatives
and friends in a particular manner, upon his or her death, such person must write a valid Will
distributing his or her estate to those persons according to such person‟s wishes. Before 1989,
Zambians could not make wills under the then Wills Act of England of 1837. This was the case
even in the pre-independence period, as Africans did not qualify to make wills as they had an
established customary practice of dealing with the estate of the deceased, as well as with the
widow and children of a person. The Wills Act was enacted in 1989, at the same time that the
Intestate Succession Act Cap 59 of the laws of Zambia was passed. The Wills Act was passed in
order to localize and simplify the making of wills.
The Wills Act applies to all people, Africans and non-Africans, who choose to write a will. The
Act replaced the 1837 Wills Act of England which applied only to non-Africans in Zambia prior
to 1989 as stated above. Section 70 of the Act provides that:
“From the commencement of this Act, the Wills Act, 1837, of the United Kingdom shall cease to apply to Zambia.”
The Act was passed “to simplify the law governing the making of wills to provide for adequate
financial and other provisions to be made for dependants in a will; to provide for the
administration of estates of persons dying having made a will; and to provide for matters
connected with or incidental to the foregoing.80
Therefore, the Act provides for the making of a valid will, and for the distribution of property of
a deceased person according to the testator‟s wish.
As regards application of the Act, section 2 in consonance with the Intestate Succession Act Cap
59, does not apply to:
(a) land which at the death of a testator had been acquired and was held under customary law
and which under that law could not be disposed of by will
80
See preamble to the Wills Act Cap 60 of the laws of Zambia
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(b) property which at the death of the testator was institutionalized property of a chieftainship and had
been acquired and was being held as part of chieftainship property.
A person who dies having left a Will has an advantage over one who dies without leaving a will.
This is so in that a person who dies without leaving a will has no say as to who might administer
his estate. This is so in that an intestate‟s estate could be administered by a person or persons the
intestate might not have approved of. On the other hand, a person, through his will, may wish to
widen the category of people who may benefit from his / her estate upon death, to include, for
instance brothers, sisters, nieces, nephews, uncles and aunties and other members of the extended
family. Through a will, a person may devolve to his / her spouse and children more than what
the Intestate Succession Act entitles them to. In addition, through a will, a person may appoint
who will be the guardian for his / her minor children should there be no surviving spouse.
13.5.2.1 CAPACITY TO MAKE A WILL
According to section 4 of the Wills Act, every person who is eighteen years and above who is of
sound mind may make a will. This includes, blind or illiterate persons as long as they are
eighteen years and of sound mind.
13.6.2.2REQUIREMENTS FOR MAKING A VALID WILL
The requirements to make a valid will are outlined in section 6 of the Act. For a will to be valid,
the section provides that the will must be in writing, and must be signed at the foot by the testator
or by some other person in the presence and at the direction of the testator in the presence of two
witnesses, which two witnesses must be present together with the testator and must also sign the
will in the presence of the testator and in the presence of each other. As regards who may be a
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witness to a will, the section provides that a person who is blind or of unsound mind may not
be a witness to a will.
13.7A blind or illiterate testator
As regards the capacity of a blind or illiterate testator to make a will, subsection (3) of section 6
of the Act provides that the will must be read by a competent person who did not participate in
the making of the will. Such person should explain the contents of the will before it is signed,
and should also declare in writing that he/she read over and explained the contents of the will to
the testator, and that the testator appeared to have perfectly understood it before signing as stated
above.
13.8Special or privileged wills
Subsection (4) of section 6 of the Act makes provision for making of what is known as special or
privileged wills by certain categories of persons under certain circumstances.
The subsection provides as follows:
(4) Notwithstanding any other provisions of this Act-
(a) a member of the defence forces who is on active service;
(b) a member of the security forces who is engaged on security
operations;
(c) any person who is ill or is physically injured and who has a settled
or hopeless expectation of death and who has abandoned all hope
of recovery and who eventually dies due to that illness or physical
injury.
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may make a will in any of the following forms:
(a) written and unattested, if the material provisions and signature are in the handwriting of
the testator;
(b) written (whether or not in the handwriting of the testator) and attested by one witness;
(c) orally before two witnesses.
13.9Witnesses to a will
According to section 8 of the Act, a person who witnesses a will shall not be allowed to be a
beneficiary under that will although the witnessing itself by that person shall be valid. Such
person can be called upon to prove the validity of the will. However, such person shall not lose
the gift if she / he witnesses a codicil81 which is another document which confirms the will. In
addition, the section provides that such person should not lose his or her gift under the will if the
will was also witnessed by two other people who are not themselves beneficiaries.
13.10 Revocation (cancelling the will)
According to section 13, a will or part of it can be revoked or cancelled by any of the following
ways:
(a) Another will afterwards or by a codicil, i.e. another document which says it is changing the
will. A codicil must be signed and witnessed just like a will;
(b) Written intention to change the will, similarly signed and witnessed;
(c) Burning, tearing or other ways of destroying done by the maker of the will (testator) or by
someone so ordered or instructed by the maker.
13.11Revocation, Variation and Revival of a will
According to subsection (2) of section 13, where a person dies leaving behind more than one
will, the latest will in time prevails over the earlier one to the extent of any revocation, variation
or inconsistency.
81
A codicil is simply an additional will.
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Thus, a later will cancels an earlier will as regards any revocation, variation and inconsistency.
And once a will has been revoked, it cannot be revived82 by the cancellation or revocation of that
later (subsequent) will. According to section 15, a revoked will may be revived by:
(a) being signed and witnessed again or

(b) executing a codicil in accordance with the provisions of section six, which shows an intention
to revive that will.
In either case, the effective date will be the date of the revival.
13.12 Destruction of will by fraud, undue influence, mistake etc.
Subsection (5) of section 13 makes provision as regards the destruction of a will by fraud, undue
influence, mistake etc. The provision provides as follows:
13(5) Where a testator destroys a will-
(a) as a result of fraud or undue influence:

(b) by accident;
(c) under a mistake of fact or law intending to make some other disposition of his property
which is not validly made;
the destruction shall not be deemed to have revoked the will.
It follows that if a testator destroys his will under any of the above circumstances, such
destruction does not revoke the will.
13.13Incorporation of other documents by a will
According to section 14(1) of the Act, a will should not refer to another document unless that
other document is clearly identifiable, and also signed and witnessed like the will itself.In
addition, subsection (2) of section 14 makes provision that oral evidence can be allowed in order
to identify that other document.
82
To revive a will means to bring back to life a will that was revoked
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13.14Interpreting a will
According to section 16 (3) of the Act, a will should be interpreted as far as possible, and should
not be set aside simply because it cannot be applied in full. Every will should be interpreted as
applying to all the property as though the will was made immediately before the testator‟s death.
13.15Disposition of Land, buildings, etc. by a will
According to subsection (4) of section 16, of the Act, a disposition of property which cannot be
moved, such as land, buildings and things fixed to land or buildings, should be treated as one
whole when giving it (the property) to the beneficiary if there is no limitation.
Further, subsection (5) of section 16 provides that if property such as land is given in general
terms even if it is occupied by a different person, it shall include all lands owned by the testator
when giving it to the beneficiary, unless a contrary intention is established.
13.16Beneficiary who dies before the testator
According to subsection 10 of section 16, a beneficiary who dies before the testator, loses his or
her gift under the will. However, by subsection 11 of section 16, if such beneficiary has children
the gift shall go to the children as if the beneficiary had died soon after the testator.
Furthermore, subsection (12) of section 16 provides that where there is any doubt as to who died
first, between the testator and the beneficiary, that is, where their deaths is such that it is difficult
to ascertain who died first, the subsection provides that it shall be deemed that the testator died
first, except in the case of a contrary intention.
Page | 159
13.17Safe-keeping of a will (custody of wills)
According to section 19, a will can be kept in any safe place of one‟s choice, including at the
High Court of Zambia in a sealed-up envelope stamped with a High Court Seal.
13.18Unreasonable provision in a will and powers of the court to order maintenance from
the estate of the testator
According to section 20 of the Act, if any person, such as the husband, wife or child or parent of
the testator, has been left out of the will or they feels that he/she has not been given a reasonable
share of the estate under the will, and that hardship will be caused if he/she is not given any
benefit or a reasonable share from the estate of the deceased, such person may apply to court
within six (6) months of the first determination of the testator‟s will, and the court may give
him/her the remedy sought if the court is of a view that hardship will be caused if that is not
done.
In such an event, the court has powers to make an order of maintenance from the estate of the
testator and such order of maintenance may be either:
(a) a lump sum or periodic sums to be paid; or
(b) part of immovable property e.g. land, buildings, to be given to such
person to be used during that person‟s life or for a shorter period of
time
(c) in the case of periodic payments, the court shall direct the time to stop
the payments.
And in any case:
Page | 160
(a) the payments shall stop upon re-marriage of the widow/widower or
(b) upon attaining the age of 18 in the case of a child; or upon the child‟s
leaving school or university or collage, whichever is the earlier; or
(c) If the child is under disability, at the end of that disability or
(d) At the death of that person i.e. child, husband, wife, or parent.
It is important to note that the power vested in the court under section 20 of the Act is not a
power to re – invent the will by the court, but simply a power to provide reasonable maintenance
by the court to a husband, wife, child or parent of the testator, in an event where a testator has
not made reason provision for such person during the life time of the testator or under the
testator‟s will. The testator‟s wish under the will are not changed by the court, but only that the
court can delay their time of taking effect in order to provide maintenance for a party as stated
above. The court therefore does not re-invent the testator‟s will.
13.19. Factors the court may consider in making the maintenance order
According to subsection (3) of section 20, in making its decision about maintenance, when and
how soon it may start, the court will consider the nature of the property and the interests of the
wife or husband or parents or children including other beneficiaries.
The court will also consider the reasons why the testator did not give (or sufficiently give)
anything to the applicant as provided under section 20(1). Further, subsection (2) of section 21
provides that the court should also consider the behaviour (conduct) of that person in relation to
the testator.
Page | 161
13.20Variation of maintenance orders
According to section 24, the court can vary a maintenance order in certain circumstances such as
where some important facts were not disclosed, or where the circumstances of the applicant have
changed a great deal.
13.21Appointment of an executor
According to section 25 (1), a person above the age of 21years and who is not insane or
otherwise incapacitated may be appointed executor of a will.
13.22Stepping down by executor from the office of executor
By section 26, an executor may step down from the office of executor either by oral application
(i.e. by saying so) in court or by writing supported by an affidavit.
An executor may also cease to be an executor if a person owed money (a creditor) applies to
court. This extends also to any other person who may have other interest in the property. The
office of executor will end even if the executor does not defend his/her status. However, the
executor may be reinstated later if the court is satisfied that it is in the interest of the estate to do
so.
13.23Grant of probate and Letters of Administration
Part V of the Act provides for grant of probate and letters of administration by the court. By
section 29, the authority to distribute the property of the testator according to the will is given
through letters of probate given by court to a person(s) named in the will as executor, provided
she/he is not below 21 years of age, mentally unsound, or otherwise incapacitated.Letters of
probate may also be given to a Trust Company on behalf of a person below the age of 21years.
Page | 162
13.24Number of executors
By section 30(1), Probate shall not be granted to more than four persons in respect of the same
estate and where several executors are named, probate may be given to each of them at the same
time, or at different times.
13.25Loss or destruction of a Will
According to section 32, if a will is lost, mislaid or destroyed by accident and not by any
intentional act of the testator, a copy or draft of the will if available will be accepted until the
original is found or until the copy or draft is proved to be true. In addition, if a will is with a
person who is outside the country who does not bring it, but an executor has a copy, that copy
shall be accepted.
13.26Codicil propounded after grant of probate
According to section 33, a codicil may be produced after grant of probate. Where this is the
case, probate will also be given with regard to the codicil. In addition, where a codicil cancels the
appointment of an executor in a will, probate granted to such executor will be withdrawn and
probate will be granted to the person(s) named in the codicil.
13.27Appointment of administrator with the will annexed
Section 36 of the Act, makes provision for the appointment of an administrator with the will
annexed in certain circumstances where:
(a) No executor is appointed by a will; or
Page | 163
(b) All executors step down or do not qualify (e.g. for being below 21 or
unsound mind; or
(c) All executors die before the testator; or
(d) All executors die before obtaining letters of probate or before finishing
distribution of the property;
(e) Or the executors do not come forward to obtain the letters of probate
permission will be given to such person(s) as the court considers most suitable to administer the
property. Such people not named in the will are called administrators, and they obtain letters of
administration. They administer the estate according to the will; hence they are called
administrators with the will annexed.
By section 52, any payments to executors or administrators before cancellation of their office
shall be legal and they may remunerate themselves for work done before the cancellation.
Furthermore, by section 53(2) an executor or administrator who does not give up his office after
cancellation of his office commits a crime punishable by a fine up to one hundred and twenty –
five penalty units or 3 months imprisonment or both.
13.28A foreign will
Section 7 of the Act deals with foreign wills and makes provisions relating to foreign wills as
follows:
(a) a will executed in a foreign country according to the laws of that
country will be valid including:-
Page | 164
(b) a will executed aboard a ship or aero plane of any description
according to the relevant territorial laws
(c) a will which disposes of immovable property which is situated in a
foreign country
(d) a will which revokes another will.
(e) a will which exercises a power of appointment provided its execution
conformed to the laws.
A law which applies outside Zambia may be applied to a will in Zambia even if it places
(a) Special formalities on testators
(b) Certain qualifications on witnesses to the will.
This will be treated as a formal requirement only, regardless of any rule of law to the contrary.
Where a will is affected by foreign law in a country which has two or more systems of law
affecting wills, the system to be followed shall be chosen as follows:
(a) by adopting a rule indicating which of these systems can properly be applied;
(b) if there is no rule, the law with which the testator was most closely connected by
the time of death or at the time of execution of the will, whichever is appropriate,
shall be applied.
In determining whether a will conformed to any particular foreign law, regard shall be had to
any changes that may have taken place in the foreign country since the execution of the will.
13.29Resealing of certain grants made outside Zambia
Section 54 of the Act deals with resealing of grants made outside Zambia. The provision
provides that letters of probate may be given by a foreign court on property situated in Zambia,
Page | 165
and will be accepted in Zambia if the letters, or the duplicate copy of the letters sealed by that
court, or a copy certified as a true copy by the court issuing it is produced and deposited with the
High Court of Zambia. The High Court will seal any of the documents and they will be of the
same application as if they were made in Zambia.
13.30Guardians of minors appointed by will
Section 55 provides for the appointment of guardians of minors under a will. The provision
provides that where a will names a person as a guardian of a minor (i.e. a person below 18 years)
the court will recognize that person only unless such guardian acts improperly. The section
further provides that the court can direct that property meant for the minor be transferred to the
guardian or even be sold; and the guardian shall be entitled to represent the child in any court
proceedings relating to the property in which the child has a share.
Section 56 provides that a guardian or other personal representative may incur expenses in
representing the interests of the minor e.g. with regard to the proper care and management of
property or of the child‟s share in the property. However, by section 57, a guardian has no
monetary interest or other benefit derived by virtue of the guardianship except where the will
expressly says so. Further, the section provides that a guardian may not buy for himself any part
of the property in which the child has a share. Where such property where to be bought by
guardian, such sale would be nullified upon the application of any person interested in the matter
within a reasonable time (i.e. one must not wait until it is too late to nullify the sale).
Page | 166
13.31Offences by guardians
Section 58 of the Act is the provision that provides for offences against guardians. The provision
provides that a guardian who deprives a child of its share of the property commits a crime
punishable upon conviction by a fine not exceeding five hundred penalty units or imprisonment
not exceeding one year, or both. The provision further provides that where the property that has
been deprived of the minor can no longer be returned or found, the convicted guardian may
compensate the child according to the court‟s assessment of the value of the property.
13.32Beneficiary causing death of the testator
A beneficiary who intentionally causes the death of the testator shall forfeit the right to inherit
any part of the estate of the deceased. This is provided for under section 59 of the Act.
13.33Unauthorized intermeddling with the estate of the deceased
Section 60 of the Act prohibits intermeddling with the property of the deceased. The section
states that any person who takes possession of, without authority, or causes to be moved, any
property of the deceased when he is not the duly appointed executor or administrator, except as
may be urgently necessary for its preservation, intermeddles with the estate of the deceased and
hence commits an offence and shall be liable on conviction to a fine not exceeding seven
hundred and fifty penalty units or imprisonment not exceeding two years or both.
13.34Case Law on Testate Succession
(CHARITY OPARAOCCHA v WINFRIDA MURAMBIWA (SCZ JUDGMENT NO.

15/2004)
(DOROTHY MWANANSHIKU AND SEVEN (7) OTHERS v DERIK HAROLD KEMP

AND BEATRICE KAKUNGU MWANANSHIKU (S.C.Z. Appeal No. 11 of 1991)
Page | 167
(GUMBO v LAND AND AGRICULTURAL BANK OF ZAMBIA [ (1968) Z.R. 50 (H.C.)]
(MUNALO v VENGESAI [(1974) Z.R. 91 (H.C.)]
(FLORENCE MWANAMWALE BILLINGSLEY v THE ESTATE OF THE LATE DR.

JOHN WESLEY BILLINGSELY (1991) S.J. [(H.C.)1991/HP/1563)]
(MWENYA MULENGA CHITIKA (suing as next friend of RUTH CHITIKA) v GIFT

ZIMBA (sued as administrator of the estate of late SYLVIA ZIMBA CHITIKA)
(2000/HP/368)
13.35Specimen will
THIS IS MY LAST WILL AND TESTAMENT
I, EVANS MULEYA an Advocate, of plot No. 1235 Kamwala South in the Lusaka
Province of Zambia, being of sound mind, do make and declare this to be my last will
and Testament.
I hereby revoke all Wills made by me here before.
I appoint KELVIN BANDA of plot 7070, Makeni, Lusaka West and my friend Enock
Bwalya of Stand No. 1978 Dr Aggrey Road, Kabwata Lusaka, an Engineer to be my
executors.
To my daughter LOVENESS MULEYA of 4567 Rhodes Park in Lusaka aforesaid, I
bequeath my house no. 3/3515 Matandani close, Rhodes Park, Lusaka.
To my son NELSON MULEYA of 7876 Chalala in Lusaka I bequeath my house no.
2020, Chibote Road, North mead, Lusaka, my car the Toyota Land cruiser V8
registration number BAD 198, all my clothes – suits, shirts, shoes, and my laptops and
computers.
Page | 168
To my daughter LOVENESS MULEYA and my son NELSON MULEYA and their
children equally Farm No. 90965, off Kafue Road, Bonaventure Area, Lusaka.
To my nephew Simonda Nangana of Kalwana village in Mongu district of Western
Province of Zambia I bequeath my four oxen, my goats, all my chickens and ducks.
To my brother JOHNS MULEYA of house number 6908 Mtendere Township, Lusaka I
give all my office furniture and machinery.
And the remainder of my property I give to my wife SARAH NYANDI MULEYA of
plot 1235 Kamwala South Lusaka. If she should predecease me, I leave the property to all
my grandchildren equally.
Evans Muleya Signature ( ) Date ( )
Testator
DECLARED AND SIGNED by the Testator to be his last will
In our presence, and Signed by us in the presence of each other
Peter Bwalya Signature ( )
Plot 132 Kulima Road,
Lusaka
(WITNESS)
Mundia Manyando Signature ( )
House No. 987 Kamwala South,
Page | 169
Lusaka
(WITNESS)
13.36 SUMMARY
This unit looked at the issue of intestate and testate succession. The two types of laws of
succession have been discussed in this unit.
13.37 ACTIVITIES
a) What do you understand by the term intestate succession and the term testate
succession?
b) What are the procedures for making a valid wick
c) Write-down a valid will
Page | 170
14.0BIBLIOGRAPHY
14.1 BOOKS
Passingham. Law and Practice in Matrimonial Causes (3rd Ed).1979. London: Butterworths
Lillian Mushota. Family Law in Zambia: Cases and Materials. 2006. Lusaka: UNZA Press
14.2 STATUTES
The Marriage Act Cap 50 of the Laws of Zambia
The Matrimonial Causes Act No. 20 of 2007
The Constitution of Zambia as amended by Act No. 2 of 2016
The Affiliation and Maintenance of Children Act Cap 64 of the Laws of Zambia
The English Law (Extent of Application) Act Cap 11 of the Laws of Zambia
The High Court Act Cap 27 of the Laws of Zambia
The Subordinate Courts Act Cap 28 of the Laws of Zambia
The Local Courts Act Cap 29 of the Laws of Zambia
The Adoption Act Cap 54 of the Laws of Zambia
The Legitimacy Act Cap 52 of the Laws of Zambia
The Intestate Succession Act Cap 59 of the Laws of Zambia
The Wills and Administration of Testate Estates Act Cap 60 of the Laws of Zambia
14.3 CASES
(Charity Oparaoccha v Winfrida Murambiwa (SCZJudgment No. 15/2004)
(Dorothy Mwananshiku and Seven (7) others v Derik Harold Kemp and Beatrice Kakungu
Mwananshiku (S.C.Z. Appeal No. 11 of 1991)
Page | 171
Gumbo v Land and Agricultural Bank of Zambia [ (1968) Z.R. 50 (H.C.)]
Munalo v Vengesai [(1974) Z.R. 91 (H.C.)]
Florence Mwanamwale Billingsley v The estate of the late Dr. John Wesley Billingsely
[(H.C.)1991/HP/1563)]
Mwenya Mulenga Chitika (suing as next friend of Ruth Chitika) v Gift Zimba (sued as
administrator of the estate of late Sylvia Zimba Chitika) (2000/HP/368)
The People v Chitambala (1969) ZR 142

Sowa v Sowa 1991
R v Chinjamba (1949) NRLR Vol. 384
Dalrymple v Dalrymple(1811) 2 Hag con 54; 161 ER 665
Philips v Philips (1921) 38 TLR 150
Somanje v Somanje (1972) ZR 301 (H.C)
De Reneville v De Reneville (1948) 1ALL ER 56
D.E v A-G (1845) 163 ER 1039
DvD
Buffrey v Buffrey (1988) 2 FLR 365
Stevens v Stevens (1979) 1 WLR 885
Malama v Malama (S.C.Z. Appeal No. 84 of 2000)
Mahande v Mahande (1976) ZR 87
Caroline Sikazwe v Ian Sikazwe (Respondent) and Jennifer Nkonde (Co – Respondent) (1983)
HP/D 78
Coetzee v Coetzee (1965) ZR 89
Venter v Venter and Joubert (1966) ZR 60
Howard v Howard (1967) ZR 47
Dr H. W. Bwanausi v Ethel Bwanausi (1983) HP/D 19
Hope v Hope (1948) ALL ER 920
Fuller v Fuller (1973) 2 ALL ER 650
Watchel v Watchel (1973) FLR 72 Court of Appeal
Dart v Dart (1966) 2 FLR 286
Peacock v Peacock (1984) 1 ALL ER 1069
Daubney v Daubney (1976) 2 ALL ER 453
C v C (1976) 2 ALL ER 453
Evans v Evans (1989) 1 FLR 351
H v H (1994) 2 FLR 801
A v A (1995) 1 FLR 345
Martha Mwiya v Alex Mwiya (1977) ZR 113
Rosemary Chibwe v Austin Chibwe (2000) ZR 1
Ah Chuck v Needham (1931) NRLR 559
Mwalimu Beauty Nanyangwe Mbobola v Chansa Mbobola 1994/HP/213
Florence Mwanamwale Billingsley v Estate of the late Dr. John Billingsley (1994/ HP/1563
Page | 172
Page | 173

FAMILY LAW MODULE Mainza

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FAMILY LAW MODULE Mainza

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The University of Zambia

The Zambia Centre for Accountancy Studies

BACHELOR OF LAWS (LLB)

L 132 FAMILY LAW

AUTHOR: VINCENT LUNGWANGWA

ALL RIGHTS RESERVED

sources of family law.

1.5 WHAT IS FAMILY LAW?

 Marriage, separation and the rights to consortium

 Child custody and maintenance

 Affiliation and maintenance of children

marriage, property settlements, alimony,1 child custody and child maintenance;

1.5.1SOURCES OF FAMILY LAW

(a) The Constitution of Zambia

Wills Act,9just to name a few.

(b) The Laws and Statutes Which Apply or Extend to Zambia.

there is a lacuna in our Zambian laws.10

British Courts based on these laws.

(d) Zambian Customary Law

the types of marriages.

2.3 TIME REQUIRED

2.5 TYPES OF MARRIAGE AND THE CONTRACT OF MARRIAGE

statutes acknowledge civil law marriages and customary law marriages.

2.5.1 STATUTORY MARRIAGE

Matrimonial Causes Act No. 20 of 2007, as regards its dissolution.

2.5.1.1 DEFINITION OF STATUTORY MARRIAGE

woman, to the exclusion of all others…….”

A closer look at this definition reveals the following:

seen in the unit dealing with divorce.

is still subsisting. This is known as the offence of bigamy.12

initio, that is it is of no legal affect from the start.

See the case of The people v Chitambala.13

2.6 Requirements for contracting a valid statutory/civil marriage

marriages, a customary law of one of the parties to the marriage.

amended in 1963 making it applicable to all who chose to be affected by it.

required to contract a valid customary marriage.

statutory procedures of the Marriage Act are fulfilled.

procedure for contracting a valid statutory marriage are fulfilled.

There is a customary traditional practice of believing that a marriage is an alliance of both

disrupt the other.

section 11 of the Act provides that

preceding the granting of the marriage certificate.

(iii) Age and consent of parents or guardian judge

Section 10 (1) (ii) of the Marriage Act Cap 50 provides:

such party is required.

consent where there is no parent or guardian to give the consent.

(iv) Sex of the parties

that marriage contracted by parties of the same sex shall be void.

(v) prohibited degree of kindred or affinity

affinity16or any other lawful hindrance to the marriage.

(vi) Parties to marriage must be single parties

marriage into a statutory marriage.

(vii) Solemnization of marriage

Section 20 of the Act provides that:

A marriage must be solemnized by a licensed person (called Minister), in a licensed building or

or the special license.

a Minister only when a special license has been issued.

Offences and Penalties under the Marriage Act relating to marriages

Section 38 provides that

“any person” who-

contracts another marriage) may not be penalized.

sections 40-45 of the Marriage Act as follows:

False declarations relating to marriage