Unit 8

MAINTENANCE

Topic 1: Maintenance

Both customary law and statutory law favor maintenance of a spouse during
the subsistence of a marriage. Customary law however, does not generally
support maintenance of a divorced wife; the kinship system determines the
party who will maintain the children, usually being the party with custody.
Under statutory law a court of competent jurisdiction has power to order a
husband in the case where the marriage subsists or where they are on a
judicial separation, to pay money to the wife or any person named in the
order for either the wife’s maintenance or for the children’s maintenance
alone. In the case of a divorce the ex-husband may be ordered to pay the ex-
wife a lump sum or a weekly or monthly sum of money for her upkeep, the
children’s upkeep or for both her and the children’s upkeep.

Section 2 of the Maintenance Orders Act, Cap 55 of the Laws of Zambia

defines a maintenance order as:-

“(a) An order for alimony, maintenance or other payments made or

deemed to be made by a court in Zambia under any of the
following enactments, that is to say:

(i) Sections 19 to 27 of the Matrimonial Causes Act, 1950,

of the United Kingdom;
(ii) The Summary Jurisdiction (Separation and Maintenance)
acts, 1895 to 1925, of the United Kingdom;
(iii) Section 11 of the Matrimonial Causes Act, 1937, of the
United Kingdom; or
(iv) Section 3 or 4 of the Bastardy Laws Amendment Act,
1872 of the United Kingdom;

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 (b) an order registered in s court under the Maintenance Orders
(Enforcement) Act or confirmed by a Court under that Act; and
includes any such order which has been discharged if any
arrears are recoverable thereunder.”

Hence a spouse may make an application to court for maintenance and the
court will consider his means, usually upon production of a salary statement
or bank statement and proof of income from other sources such as shares and
other businesses as well as the woman’s means, if any.

Previously before the amendment to the Income Tax Act in 1984, a woman’s
income used to be taxed more heavily than that of a man based on the
common law that a man has a duty to maintain his spouse and children. The
duty allowed a spouse to pledge the husband’s credit for necessaries, for
which he had to pay or be prosecuted. The duty flows from the old doctrines
of property law which gave a husband substantial interest in his wife’s
property. This duty is now enforceable through statutes, as will be seen in
this Chapter.

Thus before the 1984 amendment to the Income Tax Act, a man’s income
was not as heavily taxed on the assumption that he was head of the family
and needed more money to support his spouse and children and provide
them with adequate shelter, food, clothing and attend to their medical and
educational needs. In the event of legal separation, a working woman’s tax
rate would be reviewed upon the husband confirming the fact of separation
to the Commissioner of Taxes in writing. The amendment to the Act to
remove the differentiation in tax may be attributed to the women’s activism
against the discrimination in the tax law because women were being

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lambered with the heavy responsibility of taking care of the family and
providing for its daily needs while the men because of the tax “exemption,”
had more in their pockets which they spent on drink or [other activities not
for the benefit of the family and/ or take on more wives]. Women
successfully proved the cost implications of the tax law to the welfare of the
family and the nation. The women’s activism led to the inclusion of a
women’s Chapter in the Fourth National Development Plan for the period
1984 – 1988. This also led to a review and revision of the affiliation and
maintenance laws by the Law Development Commission in the period 1982
– 1988 and a report was submitted to the Minister of Legal Affairs.

Section 27 of the MCA 73 deals with financial provision orders in case of

neglect by party to a marriage to maintain a spouse and / or child or children
of the family.

It provides as follows:

(1) either party to a marriage may apply to the Court for an order
under this section on the ground that the other party to the marriage
(the respondent)

(a) being the husband, has willfully neglected –

(i) 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;

(b) being the wife, has willfully neglected to provide, or to make a

proper contribution towards, reasonable maintenance-

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 (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, and 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

[(1) Either party to a marriage may apply to the Court for an order
under this section on the ground that the other party to the marriage
(in this section referred to as the respondent) –

(a) has failed to provide reasonable maintenance for the applicant,

or
(b) has failed to provide, or to make a proper contribution towards,
reasonable
maintenance for any child of the family.]

(2) The Court shall not entertain an application under this section
unless it would have jurisdiction to entertain proceedings by the
applicant for judicial separation.

(3) This section applies to any child of the family for whose
maintenance it is reasonable in all the circumstances to expect the
respondent to provide or towards whose maintenance it is
reasonable in all the circumstances to expect the respondent to
make a proper contribution.

(4) Where the child of the family to whom the application under this
section relates is not the child of the respondent, then, in deciding
–

(a) whether the respondent has been guilty of willful neglect to

provide, or to make a proper contribution towards, reasonable
maintenance for the child, and
(b) what order, if any, to make under this section in favour
(c) of the child, the court shall have regard to the matters
mentioned in section 25 (3).

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(5) Where on an application under this section it appears to the court
that the applicant or any child of the family to whom the
application relates is in immediate need of financial assistance, but
it is not yet possible to determine what order, if any should be
made on the application, the court may make an interim order for
maintenance, that is to say, an order requiring the respondent to
make to the applicant until the determination of the application
such periodical payments as the court thinks reasonable.

(6) Where on an application under this section the applicant satisfies

the court of any ground mentioned in subsection (1) above, the
court may make such one or more of the following orders as it
thinks just, that is to say –

(a) an order that the respondent shall make to the applicant such
periodical payments, for such term, as may be specified in the
order;

(b) the order that the respondent shall secure to the applicant, to the
satisfaction of the court, such periodical payments, for such
term, as may be so specified;

(c) an order that the respondent shall pay to the applicant such
lump sum as may be so specified;

(d) an order that the respondent shall make to such person as may
be specified in the order for the benefit of the child to whom the
application relates, or to that child, such periodical payments,
for such term, as may be so specified;

(e) an order that the respondent shall secure to such person as may
be so specified for the benefit of that child, or to that child, to
the satisfaction of the court, such periodical payments, for such
term, as may be so specified;

(f) an order that the respondent shall pay to such person as may be
so specified for the benefit of that child, or to that child, such
lump sum as may be so specified; subject, however, in the case
of an order under paragraph (d), (e) or (f) above, to the

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 restrictions imposed by section 29 (1) and (3) below on the
making of financial provision orders in favour of children who
have attained the age of eighteen.

(7) Without prejudice to the generality of subsection (6) (c) or (f)

above, an order under this section for the payment of a lump sum –

(a) may be made for the purpose of enabling any liabilities or

expenses reasonably incurred in maintaining the applicant or
any child of the family to whom the application relates before
the making of the application to be met;

(b) may provide for the payment of that sum by instalments of such
amount as may be specified in the order and may require the
payments of the instalments to be secured to the satisfaction of
the court.

(8) For the purpose of proceedings on an application under this

section adultery which has been condoned shall not be capable of
being revived, and any presumption of condonation which arises
from the continuance or resumption of marital intercourse may be
rebutted by evidence sufficient to negative the necessary intent.

The MCA 73 section should be read together with the Subordinate Court Act
Sections 20 and 21 as well as the 1895 – 1925 Summary Jurisdiction
(Separation and Maintenance) Acts which include the following statutes:

(i) the Summary Jurisdiction (Married Women) Act 1895

(ii) the Licensing Act 1902
(iii) the Married Women (Maintenance Act) 1920 and
(iv) the Summary Jurisdiction (Separation and Maintenance) Act 1925.

For an application for maintenance to succeed, a matrimonial offence must

be proved, such as the respondent’s willful neglect to provide reasonable
maintenance for the applicant and child or children whom she or he is
legally liable to maintain; cruelty to the spouse, persistent cruelty to
children, being found with a venereal disease or compelling the wife to

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submit herself to prostitution, or refusal by an HIV / AIDS spouse to use a
condom, one might add this recommendation, in recognition of the
HIV/AIDS pandemic which has since the enactment, emerged, and for
which no cure has been found.

(a) Maintenance of children while parents’ marriage subsists

The Subordinate Court of the first class have the power to make
maintenance orders by virtue of section 20(1) (e) of the Subordinate
Courts Act. This section states that a Subordinate Court of the first
class has the jurisdiction to make any order which may be made by a
Court of summary jurisdiction under the Summary Jurisdiction
(Separation and Maintenance) Acts, 1895 to 1925 and Section 11 of
the Matrimonial Causes Act, 1937 of the United Kingdom.

Section 4 of the Summary Jurisdiction (Married Women), Act, 1895

states that a married woman may apply to a court of summary
jurisdiction if her husband is guilty of willfully neglecting to provide
reasonable maintenance for her or her children whom he is legally
liable to maintain. Section 5 (c) goes on to say that the court of
summary jurisdiction may make inter alia “a provision that the
husband shall pay to the applicant personally or for her use to any
officer of the Court or third person on her behalf, such weekly sum
not exceeding two pounds”.

A Subordinate court of the first class can also make an order for
maintenance under section 1(1) of the Married Women Maintenance)

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 Act, 1925 on the grounds of cruelty, willful neglect to provide a
reasonable maintenance for the children, being guilty of persistent
cruelty to children, being found with a venereal disease or compelling
the wife to submit herself to prostitution a repregnant practice which
should be criminalised, in addition to being a fact to prove the ground
for divorce.

The proviso to Section 20(1) (d) of Cap 28 states that the allowance
paid in respect of either the spouse or children or the children alone
may be increased by fifty per centum of the amount by which earnings
or other income of the other spouse exceed two hundred thousand
kwacha (K200, 000) per month so that the total allowance shall not in
any event exceed sixty thousand kwacha (K60,000) per month. The
Subordinate courts of the second class also have the same jurisdiction
in these proceedings by virtue of Section 21 of the Subordinate Courts
Act.

The High Court has jurisdiction to make an order for such periodical
payments as it thinks just for the maintenance of the children of the
marriage on application by the wife if the husband is guilty of willful
neglect to provide reasonable maintenance for them. This power is
also conferred on the High Court by section 27 (1) of the MCA 73
cited above.

(b) Maintenance of children when parents are on Separation

Section 26(1) of the Matrimonial Causes Act, 1950 empowers the
High Court in proceedings for separation inter alia, either before or

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 by, or after the final decree, to make such provision as appears just
with respect to the custody, maintenance and education of the children
the marriage of whose parents is the subject of the proceedings. It
should be noted that there is no fixed amount of money which the
court is obliged to relate to when making maintenance orders. The
court has powers to make maintenance orders for any amount which it
thinks just in the circumstances.

(c) Maintenance of children when parents are divorced

The High Court can make provision which appears just in divorce
proceedings either before or after the final decree for the custody,
maintenance and education of the children of the couple divorced or
to be divorced. This power is entrenched in Section 26(1) of the
MCA 73. There is no fixed amount of money which the court should
limit itself to. It has a discretion to make an order in any amount as it
thinks just.

(d) Maintenance of Children Born outside marriage

The Affiliation and Maintenance of Children Act Cap 64 of the Laws
of Zambia defines affiliation order as “an order declaring a man to be
the father of a child identified in the order. L.B. Curzon in Dictionary
of Law* defines it as an order of a magistrate adjudging finding or
declaring a person to be the father of a child and usually providing for
the maintenance of the child. A court may make an order that the
putative father pays the child (through its mother or legal guardian) a
weekly or monthly sum of money.

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The law on affiliation is contained in the Affiliation and Maintenance
of Children Act Cap 64 which was enacted in 1995 by the Parliament
of Zambia.

“to provide for court orders as to paternity; to consolidate the

law relating to the maintenance of children; to bring the law of
Zambia into conformity with the United Nations Convention on
the Rights of the Child dated 20th November 1989, to which
Zambia is a state Party, to obligate the application of so much
of the Maintenance Orders Act, and of the laws of the United
Kingdom, as provides for the maintenance of children, and to
provide for matters connected with or incidental to the fore-
going.

Before this enactment in 1995, Zambia did not have its own national
law on affiliation. It applied the Bastardy Laws (Amendment) Act
1872 of the United Kingdom.

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 AFFILIATION ORDERS

The Affiliation and Maintenance of Children Act Cap 64 provides as

follows:

Application 3. The court may make an affiliation order on

the application
by single woman of a single woman-
(a) at any time within twelve months after
giving birth to a non-marital child;
(b) at any time, upon proof that the putative
father of the non-marital child has within the
period of twelve months next after the birth
of the non-marital child paid money for its
maintenance; or
(c) at any time within the period of twelve
months next after the return to Zambia of the
putative father of the non-marital child,
upon proof that he ceased to reside in
Zambia within the period of twelve months
after the birth of the non-marital child.

Application by 4. The court may, on the application of a

single woman who has
party to void marriage been delivered of a marital child, make an
affiliation order upon proof that before the
birth she was a party to a marriage which
would have been valid but for the fact that
she or the other party were under the age at
which either might have legally contracted a
marriage.

Application 5. The court may, on the application of a non-

marital child

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 by child made through the child's next friend, make
an affiliation order, subject to the limitations
contained in section three.

Evidence to 6. (1) On the hearing of an application for an

affiliation order, the court
be given shall hear-
and corroborated
(a) the evidence of the mother;

(b) such other evidence as she may produce;

and

(c) any evidence tendered by or on behalf of the

putative father.
(2) The court shall not make an affiliation order
unless the evidence of the mother is corroborated
in some material particular by other evidence.

Section 6 of the Act gives an additional requirement which should be met

before an affiliation order can be granted and this is that the magistrate 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. (The
case of C.N. v M.S. 1979/MO/4 (unprotected), a subordinate court case, is
illustrative of this point. In this case the complainant alleged that she had
two children by the respondent who had acknowledged that he was the
father of the children by maintaining them from their date of births till the
end of 1975.

The respondent was adjudged the putative father of the children as,
according to the presiding magistrate, the evidence satisfactorily
corroborated the complainant’s evidence in a material particular. In addition
the respondent admitted paternity of the children.

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The case of M.A.S. v K.M. 1979 (unreported which is another subordinate
court case also shows that before an affiliation order can be granted the
magistrate 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. In this case the complainant delivered a child on 26th July,
1979. She filed a complaint to a magistrate’s court where she alleged the
respondent to be the father of the child. She produced a copy of the Record
of Birth from the University Teaching Hospital as evidence. On the basis of
the above document the Senior Resident Magistrate granted the complainant
an affiliation order in the sum of K12.00 per month because the Record of
Birth corroborated the complainant’s evidence in a material particular.

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 a weekly sum not exceeding five shillings
(in Zambia the amount is any monthly sum not exceeding K12.00) for the
maintenance and education of the child, and of expenses incidental to the
birth of such child, and of funeral expenses of the child (if the child dies)
provided it had died before the making of such order and of the costs which
may have been incurred in the obtaining of such order.

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 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

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and sale of the goods and chattels of the putative father and may order such
putative father to be detained and kept in safe custody until return can be
made of such warrant of distress. If, however, it appears to the magistrate
that no sufficient distress can be had then the magistrate may if he sees fit by
warrant under his hand and seal cause 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 and
satisfied.

Section 12 stipulates that the order shall end when the child in respect of
whom it was made has attained the age of eighteen years, or has died unless
the magistrate directs that the payments to be made under it in respect of the
child shall continue until the child attains the age eighteen years.

The order having been granted may be varied on application of the mother,
putative father or any person having custody of the child any time if the
magistrate thinks fit in the circumstances.
Duration of 2. (1) A maintenance order shall not be
made in favour of a maintenance child who has
attained the age of eighteen years.
order

(2) The term to be specified in a periodic

payments or secured periodic 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
eighteenth birthday.

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 (3) Subsections (1) and (2) shall not apply if
it appears to the court that-

(a) the child is or will be receiving

instructions in some profession or
vocation (or would be, if an order
were made without complying with
either or both of those subsections),
whether or not he is or will be in
gainful employment as well; or

(b) there are special circumstances

which justify the making of an order
notwithstanding either or both of
those provisions.

(4) Any periodic payments order in favour

of a child shall, notwithstanding anything in
the order, cease to have effect on the death
of the child in respect of whom the order is
made, except in relation to any arrears due
under the order on the date of the death.

Variation or 13. (1) The court shall have power to vary

or discharge a discharge of maintenance order or to
suspend any provision thereof maintenance temporarily
and to revive the operation of any provision so order
suspended.

(2) In exercising its power under this

section, the court shall take into account the
same matters as it is required to take into
account when it makes a maintenance order.

Persons to 14. (1) Subject to the other

provisions of this Act, the person whom payments
entitled to any payment to be made under a
maintenance order to be made shall be the child's
mother, father or custodian.

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 (2) When making or varying a maintenance
order, the court may order that the money
shall be paid into court and then paid to the
mother, father or custodian in such manner
and subject to such conditions as it may
direct.

(3) A custodian who is entitled to receive

moneys under a maintenance order shall
have the same power to recover them as the
mother or father would have had.

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
garnishee proceedings.

Topic 2: Maintenance under Customary Law

Previously, customary law did not support maintenance of a divorced or
separated wife. Both the case of Mwiya v Mwiya 1977 ZR and Kakula: the
Law of Marriage and Divorce Among the Malozi of Western Zambia (1982)
state that among the Lozi, a divorced wife is not entitled to any property or
maintenance on divorce. She simply reverts to her relatives who have a duty
to look after her and her children Social and economic changes no longer
support this position.

The case of Chibwe v Chibwe Appeal No. of 2000 is illustrative.

The parties were married under Bisa customary law. Upon dissolution of the
marriage the wife was entitled to reasonable maintenance and share of the

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property acquired during the marriage. The action commenced in the local
Court and went all the way up to the Supreme Court on appeal. English
authorities were applied to determine the woman’s equitable entitlements.

Maintenance of children however, depends on the party that has custody.

The ethnic groups of Western Province of Zambia are largely bilateral, that
is, they do not follow any particular lineage. Children therefore are
maintained by whichever party has custody. It also permits a party who is
not in custody to support the children.

The matrilineal kinship system gives the children to the mother upon the
death of their father or upon divorce. The mother and her family have the
obligation to maintain them, and the father is cut off. The patrilineal kinship
system is the converse of the matrilineal. The father keeps custody of the
children and he and his family are responsible for their welfare, and the
mother will usually not have access to them at all.

The present day poverty has brought hardships which have resulted for
instance in the Local Courts (Amendment) Act of 1991 which amended the
law to give Local Courts the jurisdiction to make maintenance orders. In
making the maintenance orders local courts justices consider the duration of
the marriage and the woman’s input in the acquisition or maintenance of the
property acquired during the marriage, as well as contribution to the welfare
of the family, even if it means only doing domestic chores.

Act No. 8 of 1991 which amended the Local Courts Act Cap reads as
follows:

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Section 35 Local Courts Act amended in subsection 1 by insertion of the
following

(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 circumstances of the
parties for a period not exceeding three years from the date of divorce
or 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
parents of the child.

The current socio – economic changes and the poverty levels have destroyed
the social safety net of the past. Today Local Courts apply the principle of
“the best interests of the child” in making maintenance orders. It is not
necessarily the party who has the child or children in their custody who
maintains her him or them. Similarly, kinship systems are adapting to
change whereby customary practices are also following “the best interest of
the child” principle as illustrated in the few examples given hereunder. The
scope of this book does not allow wider coverage, but discuss a few
practices based on kinship systems:.

The Lunda of Kazembe and the Shila of Nchelenge and Ushi of Manza in
Luapula Province have shifted their custom and follow a patrilineal type
even if they are matrilineal. This is the pattern throughout the Province.
The Lunda of Mwinilunga who are also matrilineal, still practice their
kinship system of custody of children upon divorce of their parents. They

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however consider the ages of the children and the father may be granted the
custody of the older children. In the case of death, children similarly go
either way; to the mother’s side or the father’s, while the Luchazi of
Kabompo practice a custom similar to the Lunda.

In the case of the death of the father, the children go to their mother Children
born out of wedlock and whose father had custody by virtue of payment of
damages, go to their mother upon his death.

The Luvale of Zambezi give custody to the father if the mother dies during
the subsistence of the marriage, and upon divorce, they go to either parents
as they may decide if old enough, or as decided for them. Those that go to
their mother’s side must seek the father’ permission to marry when they
grow old enough.

The Mbunda of Mongu are bilateral and practice patrilocal residence.

Children belong to both parents and their relatives giving. This means that
the children can go either side on divorce or death. Children born outside
marriage are taken care of by their mother and matrilineal relatives. The
father is merely expected to maintain them. The payment of damages for
getting the girl or woman pregnant outside marriage guarantees the man
custody of the child.

Among the Tonga of the valley in Southern Province, minority and majority
rights of people are determined by the following: rights over children are
guaranteed by payment of Mafwenezya upon marriage; during marriage the
children are kept and maintained by both parents; upon death, children

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remain in the custody of the successor sikwangwa muzimo. Upon divorce,
children are taken care of by the father. Children born outside marriage are
taken care of by their mother, and if she gets married, the grand parents take
over custody and care of the children. A child ceases to be a minor upon
his/her marriage.

For the Ila of Namwala, custody of children is guaranteed to the man by

virtue of payment of chiko. During marriage, both parents have joint
responsibility for their children, with the husbands playing a more dominant
role than the wives.

The Nyika Fugwe and Lambya of Thendere, Isoka are patrilineal and
patrilocal. At marriage, the man pays cattle to secure custody of the
children. At divorce, he will therefore have custody. Order children
however decide which parent to go with. Children who are very young g
with the mother as it is considered that they still require her tender care and
love.
(WALUSIKU LISULO
V
PATRICIA ANNE LISULO
SCZ Judgment No. 21/1998)

(MISIYA v MISIYA (1972) Z.R. 269 (H.C.))

Topic 3: Custody of Children

The Court which hears an application for maintenance has jurisdiction also
to make orders with respect to the custody of the children of the family.

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Parties usually disagree on issues of custody. The duty of court is to
disregard this and concern itself with the child’s welfare “whether the
father’s claim is superior to the mother’s or vice versa”.1 Their conduct is
relevant, but its significance is variable. Guilt or innocence is rarely a
determinant as to custody of children2 unless the conduct is of such gravity
as in Re L (infants).3 In that case an adulterous mother deserted the
matrimonial home to live near her lover, leaving behind her husband and
two children aged 4 and 6. She refused to come back inspite of the husband
being ready to forgive her. The Court ruled that the father should have the
care and control of the children.

The Court will also consider the risk of future corruption of the child. It has
to decide for instance, whether one act of adultery can make a mother a non
fit person to look after a child; aliter she is promiscuous4

Courts also consider the age of the child, its sex and health. Courts do not
ignore the reality that where children are very young the mother is often
better placed to bring them up.

Another consideration that the Court will take into account is the effect of
separating young children if both are young, and refuse to give custody of
the girl to the mother and that of the boy to the father. There is no law that
governs these matters, the only consideration being the welfare of the
children, whether or not they would be happier with one parent or the other.
1
Law Relating to children: Bevan HK, 1973 p260
2
ibid, p260 note 11
3
(1962) 3 All ER 1
4
No or little access to martial property – Mwiya v Mwiya (1977) ZR) 113; no right to maintenance: Mwiya
(Supra) ; no right to custody of children on account of no means to provide for the children: Jenala Phiri

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In Re L (infants) one of the reasons for the decision to give care and control
to the father was hope, albeit faint, that the mother might return to the father
for the sake of the children.

The Courts in Zambia usually give one parent care and control of the infant
while the other is given reasonable access and a say in the up-bringing of the
child. There is also a practice by courts to order a social welfare report on
the suitability of the residence of the parties, and the ability to provide for
the children, as basis for giving custody to one parent or the other.5 This
practice overshadows the “best interest of the child” factor, as the mother
may be the innocent party, who leaves the matrimonial home, without any
adequate means to provide for herself and the children. The “best interest of
the child” factor must compel courts to order the parent with the means,
usually the husband, to provide the other (the wife) and children with
adequate accommodation, as well as maintain them.

The courts must counsel the parties at the time of making the custody order
and if cooperation between them is possible, grant joint custody. This is
possible to achieve if both parties have the welfare of the children at heart.
The Court does not usually do this particularly when it reserves its ruling,
for the ruling is simply distributed to counsel for the parties by Court
marshals or posted into their pigeon – holes in the Registry. In the same
vein, Court should see the parties to the proceedings and not rely solely on
affidavits and welfare reports. The parties should give oral evidence. This
would also provide early opportunity to the Court to counsel the parties than
at the stage of making the order. There is general bias against women
5

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entrenched in a society which is highly traditional such that once a woman is
divorced, all connection between the parties must cease and the woman be
made to suffer the separation, even when she was the innocent party. In
particular she is touched where it hurts most – refusal of access to her
children, some of them who may be of tender age, and without due regard to
the child’s sex. It would be better if a child had its own lawyer who would
independently safe-guard the interests of the child.

The law that governs custody of children is the Affiliation and Maintenance
of Children Act Cap 64. This law is embodied in the Act because a custody
order is granted only for the duration of the maintenance order. The point
that one party may have custody while the other pays for the maintenance if
that is in the best interest of the child, rather than that of the parties, is
completely missed, and this is quite unfortunate and unjust.

Part IV of the Affiliation and Maintenance of Children Act provides as

follows:

The Act provides as follows in its Part IV.

Custody Section 15. (1) Where the court makes a maintenance

order in respect of a child, the court
and shall also have power to make whatever order it thinks fit with
respect to the custody of the
access child, and the right of access thereto of either parent, but the
power conferred by this

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 subsection and any order made in exercise of that power shall
have effect only during any
period while the maintenance order is in force.

(2) In making any order as to custody or access, the court shall

regard the welfare of the child as the paramount consideration, and
shall 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.

(3) If the court is satisfied that-

(a) the mother or father of a child is not a fit and proper
person to have custody of the child;
(b) the mother or father of a child has died or become of
unsound mind or is serving a term of imprisonment of more
than six months; or

(c) there are exceptional circumstances making it impracticable

for the child to be entrusted to the custody of either of its
parents; the court may, at the time of making a maintenance
order or at any time thereafter, appoint any other person as
custodian of the child.

(4) The appointment of a custodian under this section may be made

on the application of-

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 (a) The Minister responsible for community development and
social welfare, or of any person authorised in that behalf by
the Minister in writing either generally or specially; or

(b) the father or mother; and such an appointment may be

revoked and another person appointed as custodian.

Declarations 16. (1) Where the court makes an affiliation order, or

grants or makes of
unfitness absolute a decree of divorce, or grants a decree of judicial
separation, it may
for custody include in the order or decree a declaration that either
party to the proceedings
is unfit to have the custody of a child.

(2) Where such a declaration is made, then, if the party to whom the
declaration relates is a parent of any child, that party shall not,
on the death of the other parent, be entitled as of right to the
custody or the guardianship of that child.

(3) Where an order in respect of a marital child is made under

this
section, the order shall not affect the rights over or with respect
to the child of any person, other than a party to the marriage in
question, unless the child is the child of one or both of the
parties to that marriage and that person was a party to the

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 proceedings on the application for an order under this section.

(4) The court shall have power to vary or discharge an order

made under this section or to suspend any provision thereof
temporarily and to revive the operation of any provision so
suspended.

Mary Louise Kakoma V Benson Chitondu Kakoma

(1979) Z.R. 17 (H.C.)

This was an application by the respondent to vary an order of custody.

The parties were married in New Zealand; subsequently they came to
Zambia where the child was born. The Petitioner was granted a decree
nisi of divorce and custody of the child. An application by the respondent to
vary custody was dismissed. The Petitioner without leave of court took the
child out of the jurisdiction to New Zealand, hence this application. The
court considered the issues if whether it had jurisdiction in the matter and
whether the order it might make would have any effect.

Held:
(i) The Court has inherent jurisdiction to deal with the custody
of the child whose parent is a citizen of Zambia and who
was born within its jurisdiction.

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 (ii) The Order made by this court could be incapable of having
any effect unless the court in New Zealand takes a similar
view.
(iii) The Proper course is to give the husband legal custody to
enable him if he wishes to present his case in a New Zealand
court on equal terms with the Petitioner.

(iv) The Court can act irrespective of the fact that the courts of
the country where the child is located may also have
jurisdiction to make an order. It assumes that the other court
will act in a reasonable manner both as to whether or not it
chooses to make an order and as to what order it should
make; and every effort is put forth on all sides to ensure that
there should be no divergence between the line taken by this
court and that taken or likely to be taken by the other court.

(v) Custody of the child granted to the respondent without

prejudice to any question of care or control.

Elizabeth Nadine Smith Wesson V Brian Sydney Stroud

SCJ NO. 35 of 1998

Chirwa, Lewanika, Chibesakunda, JJS

Custody – Child of Tender age

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 The lower court had ordered joint custody of child to both parents,
that is the appellant and respondent herein. The appellant, appealed
against the joint custody order given by court.

Judgment
Lewanika JS delivered the judgment of the court.

We have considered the arguments advanced by counsel for the

appellant and also the respondent’s heads of arguments which we had
a chance to peruse prior to the date of hearing this appeal. We are
satisfied that in the best interests of the child and considering that the
child is of a tender age we will allow this appeal and set aside the
order of joint custody and we award custody and care and control to
the mother the appellant, with access to the respondent on terms to be
agreed by the parties failure to which terms will be ordered by the
court. We will make no order as the costs.

VIRGINIA JANE SASSE EVANS v MARIC STEPHEN EVANS

HON Justice H. Chibomba 1999/HP/D20

Custody, Contact and resident Order for Child

The applicant applied for contact and resident order for the two children of
the family LUKE DANIEL EVANS born on 11 January, 1982 and
TRISTAN DRAKE EVANS born on 11th April 1988. the application
followed the grant of – decree nisi for the dissolution of marriage between
the applicant and the respondent. The applicant lives in Zambia while the

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respondent lived in Ireland with said children. The applicant had been
denied reasonable access to the said children.

Held:
i) The said children to continue residing with the respondent in
Ireland during school terms but shall be allowed to visit the
applicant during school holidays.
ii) The applicant to have free access to the children at reasonable
times including communication by telephone and
correspondence.
iii) The respondent to be responsible for children’s education
requirements and maintenance in Ireland whilst the applicant to
maintain them on holiday and shall pay for the travel expenses.

For the Petitioner: Mr R Simeza of Simeza Sangwa and Associates

For the Respondent: Messrs Chilupe and Company (no
appearance)

Legislation referred to: i. The Children’s Act 19895

ii. The United Nations Convention on the
Rights of the child.

This is an application for contract and Resident order under Section 8

of the Children’s Act 1989. This application follows the grant of a
decree nisi for the dissolution of the marriage of the applicant to the
respondent granted on 5th October 1999. The summons is supported by an
Affidavit deposed to by the applicant. No Affidavit in Opposition of

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the application was filed by the respondent and the respondent did not
appear at the hearing of the application either in person or by counsel and
his advocates in Zambia indicated that he did not with to be represented by
any counsel during the hearing of this application. The respondent is
resident in Ireland.

The applicant has deposed this in paragraphs 4,5,6,7,8,9, and 10 of the

Affidavit in support:

4. That there are two children of the family; Luke Daniel Evans
born on the 18th January, 1982, and Tristan Drake Evans born
on the 11th April, 1988.

5. That Luke Daniel Evans is in his 5th year of Secondary

education at Glenstal Abbey Boarding School, Murroe, Country
Limmerick Ireland and has since the beginning of 1998 been
under the custody care and control of the respondent and
receives financial support from the respondent’s mother for his
educational requirements and from the respondent and Irish
welfare towards his maintenance.

6. That the petitioner has since October, 1997 been denied access
to this child by respondent and his mother .

7. That Tristan Drake Evans has since January, 1998 been

attending free primary education on a daily basis at the local
school in Woodford county, Galway, Ireland and is under the
care, custody and control of the Respondent and receives
financial support for his maintenance from the respondents
unemployment child welfare benefits and the respondent’s
mother.

8. That the petitioner has had only 4 days access to this child since
March 1997 and from February, 1998 has been denied all
communication with this child other than a 20 minute meeting
in a solicitor’s office in Ireland in May, 1999.

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9. That in all the circumstances of the case, I crave the indulgence
of this Honourable Court to grant a joint contact and residence
order to provide inter alia:

i) that the said children should continue residing with the

respondent in Ireland during school terms but allowed to
visit the petitioner during school holidays at a minimum
rate of one a year.

ii) that the petitioner shall have free access to the children of
the family at any time including communication by
telephone and correspondence.

iii) that the respondent be responsible for the children’s

education requirements and maintenance in Ireland and the
petitioner to be responsible for the children’s maintenance
whilst with her (in Zambia) and to pay all travel expenses and
incidentals their visits.

10. That further to the foregoing, the above proposed arrangements

be made subject to the following vis:

i) that the respondent continues to reside in Ireland

ii) that should the respondent return to Zambia or leave

Ireland at any time, the second child, Tristan Drake
Evans is to return to Zambia to live with the petitioner
and in which event the joint custody order is to be varied
accordingly in favour of the petitioner

iii) that the respondent shall inform the petitioner by

correspondence or fax of the children’s welfare and
school progress on a regular basis and immediately in the
event of ill health or any accident”.

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In addition to the Affidavit in Support the applicant gave oral evidence in
which she more or less repeated the contents of the Affidavit in Support.
The applicant testified that she took the said children to Ireland and provided
them with necessities and put them in school and that she does not wish to
move the children from Ireland – from the education point of view. She told
court that her husband does not allow her to communicate with the children
and that when she went to Ireland for 4 months last year, she was not
allowed to see the younger child and that she had to apply to a solicitor to
see the child for 20 minutes in the solicitor’s office with her mother in law.
She told court that she has ability to pay air – fates and other
incidentals for the children’s visits to and from Ireland and for their upkeep
in Zambia.

Having heard the evidence of the applicant and having read the Affidavit in
Support filed in support of this application and there being no objection to
this application and nothing that the court must always take into account the
best interest of the child whenever considering such applications, I wish to
state that each parent has parental responsibility over the children of the
family. This is on line with the Children’s Act 1989 under which this
application has been brought. Further, it is settled law that every parent is
entitled to contact (access) with the children of the family. Article 9 of the
United national Convention on the Rights of the Child provides that a
child who is separated from one parent or both has the right to personal
relations and direct contact with both parents on regular basis except if
it is contrary to the child’s best interest. It must be noted here that what is
in issue is the best interest of the child and not the rights or interest of the
parents.

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Having regard to the evidence before me, I find no reason to refuse the
orders sought by the applicant. Accordingly the application is granted and it
is hereby ordered that:

i) the said children shall continue residing with the respondent in

Ireland during school terms but shall be allowed to visit the
applicant during school holidays.
ii) The applicant shall have free access to the children of the
family at reasonable times including communication by
telephone and correspondence.
iii) The respondent shall be responsible for the children’s
educational requirements and maintenance in Ireland and the
applicant shall be responsible for the children’s maintenance
whilst with her in Zambia and she will be responsible for all
travel expenses and incidentals to their visits.
iv) The respondent shall inform the applicant of the children’s
welfare and school progress from time to time and immediately
in the event of all health or accident.
v) The above arrangement is subject to the respondent continuing
residing in Ireland and in the event of the respondent’s return to
Zambia the second child, Tristan Drake Evans shall return to
Zambia to live with the applicant. In the event of the
respondent leaving Ireland to reside elsewhere, either party may
apply for variation of this Order concerning Tristan Drake
Evans.
(Delivered)

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Question for Discussion
1. Explain the concept of the “Best Interests of the child’ as paramount.

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