THE COPPERBELT UNIVERSITY

SCHOOL OF HUMANITIES AND SOCIAL

SCIENCES
Name : Emeldah Mwango Musonda
Sin :21165645
Program : Bachelors of Law
Code : Ls 231
Task : Assignment one
Due Date :31st March, 2023
Lecture : Mr. Musonda Chimba
ASSIGNMENT ONE

1. Mr Jones and Mrs Dorothy Tembo have been married for 10 years, they have lived in
harmony up until Mrs Dorothy began drinking alcohol and emotionally abusing their
children even when Mrs Dorothy was home. Mrs Dorothy Tembo filed a petition for
divorce with the Lusaka High Court on the grounds of unreasonable behavior, a
decree absolute was given thereafter. Because they had been living under the same
roof for a while, Mrs Dorothy and Mr Jones still shared a bed. Given this, Mr Jones
decided to entice Mrs Dorothy into having coitus but denied, in response, Mr Jones
said to Mrs Dorothy that he had a right because they were previously married,
eventually she gives in. Angered by this, Mrs Dorothy comes to your office and seeks
counsel on what just transpired the previous night. Prepare a legal memorandum on
the stance herein. Substantiate with authority.
2. ‘There has been much judicial and juristic discourse around the notion of irretrievable
break down of marriage founded on the behavior of a spouse on account of which the
party petitioning for divorce cannot reasonably be expected to live with such a
spouse’ – Justice Musonda JS in the case of Soko v Soko SCZ/8/189/2015. Discuss
with the aid of Four decided cases how the courts have addressed the test to be
applied in cases of unreasonable behavior in light of the above statement.
3. The presumption of marriage as well as not following marriage preliminaries has
caused a lot of confusion in the legal circles. Making reference to 4 Zambian decided
cases, give a detailed legal memorandum on the legal consequences of the
presumption of marriage as well non-compliance of marriage preliminaries.
QUESTION ONE

Marriage is the voluntary union for life of one man and one woman to the exclusion of all
others according to the case of hyde v hyde Woodmansee of 18661. Having defined what
marriage is according to hyde v hyde, the legal issue in the scenario given is;

‘Whether or not Mr Jones has committed the offence of rape and the effects of absolute
decree’’

Having spotted out the legal issue, ill further define what rape, absolute decree and coitus is.
Rape (marital rape) is or rather spouse rape is the act of sexual intercourse with one’s spouse
without their consent. 2Section 132 of the penol code chapter 87 of the laws of zambia also
defines rape as ,’Any person who has unlawfully carnal knowledgeof a woman or girl,
without her consent, or with her consent, if the consent is obtained by force or by means of
threats or intimidation of any kind, or by fear of bodily harm, or by means of false
representations as to the nature of the act,or, in the case of a married woman, by personating
her husband, is guilty of the felony termed rape’’ Degree Absolute is the final order made by
a court in a divorce case which ends a marriage completely3.

Therefore, under Zambian law, rape is defined as the act of having sexual intercourse with a
person without their consent. Consent is defined as the voluntary agreement of a coersion to
engage in sexual activity. Consent must be given freely and without coercion or threats. The
fact that Mrs Dorothy shared a bed with Mr Jones after an absolute degree was passed does
not mean that he had the rights with Mrs Dorothy without her consent. The fact that they
were previously married does not give him the rights to force her to have sex with her. In the
case of R v R, The court upheld his conviction for attempted rape. There was no marital rape
exception under English law and was a common law fiction that existed. The concept of
irrevocable consent of a wife to her husband was classed as unacceptable concept in modern
times; each is seen as equal partners in a marriage4. The relationship between the parties to

1
(1886) LR P&D 130
2
Section 132
3
www.collinsdictionary.com
4
(1992) 1 AC 599
rape does not matter; rape is rape. The word ‘unlawful’ that is included in the definition of
rape under the sexual offences (Amendment) Act 1976 was said to include marital rape. In
the case of 5Fuller v Fuller, the court of Appeal allowed the appeal and held that the husband
and wife were living together as man and wife. They were not living with each other within
the meaning of section 2(5) of the Divorce Reform Act of 1969.
In conclusion, based on the test for unreasonable behavior in divorce cases, and the relevant
authorities, it is clear that Mr. Jones behavior in enticing Mrs Dorothy into having sexual
intercourse was not acceptable. Given the circumstances surrounding Mrs. Dorothy’s divorce,
she has the right to take legal action against Mr Jones for rape. Since she did not consent to
having sex, dice the two did not have rights as before that involved in marriage, they lost
them the time the degree was passed. Therefore, the man had lost all the right to have sex
with her. Hence, he committed an offence of rape.

QUESTION TWO

Divorce of a marriage can only be granted to the parties seeking divorce when the person
petitioning for a divorce can show that the marriage has broken down irretrievably according
to 6section 8 of the Matrimonial Causes Act. This can only be satisfied when the petitioner
shows that the marriage has broken down due to unreasonable behavior, adultery, desertion,
two years of separation with consent and five years separation that the respondent exhibits
that will cause the petitioner to seek a divorce.

The courts in their judgements of some divorce cases have stated that unreasonable behavior
cannot qualify where a spouse for example does not wish the other a ‘happy birthday’
Behaviour of a respondent that may be evidence that a marriage has broken down
irretrievably, entitling the petitioner to a divorce. Such conduct need not to be unreasonable
in itself- the real test is whether it is reasonable to expect the petitioner to continue living
with the respondent, taking into account the behavior of both parties and their particular
personalities and characteristic.
In the case of 7Mulundika v Mulundika, it was held that the behavior of the respondent is the
important issue, and the fact that the petitioner finds it unbearable to live with the respondent
does not, of itself, permit a decree to be granted. It was also held that the test to be applied in
determining the behavior of the respondent is that he must behave in such a way that the
petitioner cannot reasonably be expected to live with the respondent. In the case of
8
Mahande v Mahande, unreasonable behavior was seen to be shown by the respondent due
to his actions towards his spouse.. In the case of 9Livingstone-stallard v Livingstone
Stallard, the husband character would amount to a situation in which the young wife was
subjected to a consent atmosphere of criticism. Applying the test which I have just
formulated, I think that any right thinking person would come to the conclusion that this man

5
(1972) 1 WLR 730
6
Section 8
7
(1991) ZMHC 10
8
(1976) ZR 287 (S.C)
9
(1974) 2 ALL E.R, P 766
had behaved in such a way that this woman could not reasonably be expected to live with him
as well as the case of O’Neil v O’Neil10. There will accordingly be a decree nisi under
s1(2)(b) of the Matrimonial causes Act 1973. 11Ash v Ash is the case where the court
considered the standard of behavior which would support an allegation that a petitioner
spouse should not reasonably be expected to live with the other spouse. It was held by
Bagnall J that, not only will the behavior the respondent had alleged and established in
evidence be considered but the character, personality, disposition and behavior of the
petitioner be considered as well. If a respondent is seeking to resist a petition on the first
ground upon which Mr. Ash relies, he must in his answer plead and his evidence establish the
characteristics, faults, attributes and behavior on the part of the petitioner upon which he
relies.

QUESTION 3

Marriage is a legally recognized union between two individuals. However, in Zambia, there
are certain legal formalities that must be complied with before a marriage can be recognized
as valid. If not complied with, these formalities can result in legal consequences. Therefore,
the presumption of marriage and non-compliance preliminaries can also create legal
complications. Hence, I will further discuss the legal consequences of the presumption of
marriage and non-compliance with marriage preliminaries by making reference to four
decided cases.

Presumption of Marriage

This is a situation where parties have lived together as a married couple and the community
in which they live regards them as married. There are two presumptions made. Firstly, the
couple has capacity to enter into the marriage and have entered into the marriage and have
entered into it validly and secondly that the couple followed all the formalities required for a
valid marriage. The couple does not however have any documentary evidence for their
marriage. The couple’s marriage thrives on cohabitation and reputation, meaning that they
live together and carry themselves as married. Therefore, the legal consequences of
presumption of marriage is that parties under presumption are not allowed to petition for
decree of divorce or separation in court as their union was a mere presumption of marriage.
In the case of 12Siwo v Siwo, the issue in this case was whether the marriage was valid given
the fact that at the time of its solemnization, a marriage certificate was not issued. Therefore,
the court held that the petitioner did not know that a marriage certificate from the registrar

10
(1975) 1 WLR 1118
11
(1972)
12
(1970) Z.R. 79 (H.C)
was necessary or that one could be obtained. In the case of 13Muyamwa v Muyamwa, the
issue was whether there was a valid marriage between the petitioner and respondent in light
of the facts. The court held that there was a valid marriage because neither party willfully
intended to disregard and defeat the law as petitioner’s mother attended the ceremony as a
witness.

Not complying to the customary reguirements as well will result in the courts declaring the
courts merely were cohabiting. This was seen in the case of Fenias Mafemba v Esher Sitali
where the courts stated that there was no presumption under customary law and that the
couple was merely cohabiting even though they lived together as husband and wife for a long
period of time14.

NON-COMPLIANCE PRELIMINARIES

In Zambia, there are certain legal formalities that must be complied with before a
marriage can be recognized as valid. Failure to comply with these formalities, can
result into legal consequences. Non- compliance with the marriage preliminaries
renders the marriage void. Therefore, if the parties fail to comply with the marriage
preliminaries, the marriage will not be recognized as valid and the parties will be
regarded as unmarried. These preliminaries have been provided for in the Marriage
Act part (ii) 15Again in the case of siwo v siwo the judge made reference to section
32(2) of the marriage act which provides the consequences of not following some of
the marriage preliminaries.
In conclusion, the presumption of marriage and non-compliance with marriage
preliminaries can create legal complications. The presumption of marriage can be
rebutted by evidence to the contrary, while non-compliance with marriage
preliminaries renders the marriage void. Therefore, it’s important for parties intending
to enter into a marriage to comply with the marriage preliminaries to ensure that the
marriage is recognized as valid.

13
(1976) Z.R 146 (H.C)
14
(2007) ZR 215
15
Part ii
 BIBLIOGRAPH

STATUTES

Matrimonial Causes Act No.20 of 2007

Penol Code Act chapter 87 Of the Laws of Zambia.

CASES

Fenias Mafemba v Esther Sitali (2007) ZR 215 SC

Fuller v Fuller (1973) 1 WLR 730

Hyde v Hyde Woodmansee(1866) LR P&D 130

Livingstone Stallard v Livingstone Stallard (1974) ALL ER P,766

Mahande v Mahande (1976) ZR 287 (S.C)

Mulundika v Mulundika (1991) ZMHC 10

Muyamwa v Muyamwa (1976) ZR 287 (S.C)

O’Neil v O’Neil (1975) 1 WLR 1116

R v R (1992) 1 AC 599

Siwo v Siwo (1970) Z.R 79 (H.C)

WEBSITES

www.collinsdictionary.com

BOOKS

Lilian Mushota Family Law in Zambia Cases and Materials 2005 UNZA Press