MARRIAGE

DEFINING MARRIAGE
 Lord Penzance in the case of Hyde v Hyde
decided in 1866 gave what has come to be
known as the classical definition of marriage.
In that case marriage is defined as ‘the
voluntary union for life of one man and one
woman to the exclusion of all others.’
To what extent does Lord Penza’s definition
embrace what marriage is today?
CHARACTERISTICS OF LORD
PENZA’S DEFINITION
1. The voluntary union: this entails that both parties must
freely consent to the marriage
2. For life: this entails that once married always married.
However in Zambia a marriage can be dissolved by divorce.
3. Union of one man and woman: this entails that marriage is
between two people of the opposite sex: This is true in
Zambia as same sex marriages are not recognised, any
purported marriage celebration between people of the
same sex will be null and void.
4. To the exclusion of others: this means that there are only
two parties to a marriage. This is true for statutory
marriages, however customary marriages are recognised in
Zambia. Note also that a person is not permitted to re-
marry. If they do their second purported marriage is void ab
initio
THE CONTRACT OF MARRIAGE
 Marriage is a contract between one woman
and one man creating mutual rights and
duties.
 The contract of marriage confers a legal
status on the parties of marriage which has a
number of consequences.
 Unlike simple contracts marriage requires a
number of formalities to be valid and
secondly the parties must have the capacity
to marry.
DISTINCTION BETWEEN MARRIAGE
AND OTHER CONTRACTS
1. The law relating to capacity to marry is different from that of any
other contract. In Zambia any marriage will be void if either party
is under the age of 16 unless it is shown that consent was obtained
from a judge.
2. There are preliminary requirements that must be fulfilled as well
as a number of formalities that are to be fulfilled for a marriage to
be valid
3. The grounds on which a marriage will be void or voidable are
different from those of other contracts.
4. Unlike other voidable contracts, a voidable marriage cannot be
declared void ab inito by rescission by one of the parties, in a
marriage one will have to obtain a decree of nullity first from the
court.
5. A contract of marriage can only be discharged by divorce being a
formal court order i.e. Decree absolute never by agreement or
frustration.
6. The terms of contracts are normally set by the parties to it, but by
large the duties in a marriage contract are imposed by law.
TYPES OF MARRIAGES
 Customary marriage: this is a marriage conducted in
accordance with a particular tribe. It may be polygamous
and will include essential elements such as consent of
parents (which counts more than that of the parties to the
intended marriage), payment of lobola and other marriage
payments and rites that have to be performed. A lack of
these essential elements will invalidate a marriage.
 Customary law is applicable in Zambia provided the same is
not repugnant to natural justice or in contradiction of
written law see, Kaniki v Jarius. As a consequence,
customary marriages are recognised as valid in Zambia as
such any person who undergoes a statutory marriage being
subject to a customary marriage will have committed an
offence of bigamy, see The people v Paul Nkhoma (1978) Z.
R. P4 see also s32 and 34 of the Marriage act cap50 of the
laws of Zambia. See also 12(1) of the local court act
COMMON LAW MARRIAGE
 A common law marriage is a marriage that
has not been conducted in accordance with
the formal requirements as requested under
English law for instance without a licensed
minister. It is not based upon custom or
licence or other formality but rather upon
the couple’s agreement to have a marital
relationship.
STATUTORY MARRIAGES
 A statutory marriage is one that is conducted
in accordance with the marriage act cap 50
of the laws of Zambia. For such a marriage to
be valid it must comply with the provisions
under the marriage act see s27 (1) a of the
matrimonial causes act:
The marriage act has the following
requirements:
(a) Preliminary requirements
(b) Formalities for the ceremony
(c) The registration of the marriage
STATUTORY MARRIAGE
 Preliminaries to marriage
(1) Parental consent (sometimes) required
(2) Notice (21 days)
 PARENTAL CONSENT
 Where one or either parties to a marriage is below the age of 21 and is not a widow or
widower, a marriage certificate will not be issued unless such person has obtained parental
consent.
S10 provides that prior to issuing of a marriage certificate, the registrar must be satisfied by
affidavit that:
1. The parties are above the age of 21 or
2. If either party is below 21 they are a widow or widower or
3. If they are not a widow or widower and below 21, written consent in accordance with s17
has been obtained (note that such consent is to be attached to the affidavit.
S17 states that where either party not being a widow or widower is below 21, they must obtain
written consent from:
4. The father or
5. If the father is dead, of unsound mind or not in Zambia they must obtain consent from the
mother or
6. If both the father and mother are dead they must obtain the consent of their guardian.

Section 19 provides for an alternative where consent in accordance with s17 cannot be obtained:

1. Where any parent or guardian from whom consent is to be obtained refuses to give consent a
Judge of the High court upon application being made may consent to the marriage
2. Where there are no parents or guardians of such a person needing consent in Zambia capable
of so giving consent, a minister, judge of the HC, or a District Secretary may consent to
such marriage in writing upon being satisfied there are no reasonable grounds in the
interest of either parties for withholding such consent.
NOTE THAT IF THE PERSON GIVING CONSENT CANNTO RENDER THEIR SIGNATURE DUE
TO ILLITERACY THEY MAY SIGN SUCH CONSENT BY PLACING A MARK OR CROSS
CONSIDER
 Does failure to obtain parental consent
render the marriage void? Note that the
English act expressly states that failure to
obtain parental consent does not render a
marriage void.
 In England the age for which consent must be
obtained has been reduced from 21 to 18. Do
you think Zambia must legislate to reduce
the age.
 Do you agree with the reduced parental
rights, as refusal may be overridden by the
court?
NOTICE
 Under s6 of the marriage act, it is required that 21 days prior to the intended date
of solemnisation, that the parties intending to marry give notice in writing
indicating such an intention to the registrar of the district in which the marriage is
intending to take place.
Reasoning:
When notice is given in accordance with s6, the registrar enters the notice in the
‘marriage notice book’. Further the registrar will publish such notice on the door of
the office. The marriage notice book can be inspected during office hours by any
member of the public without any fee. The essence is to allow any member of the
public with a just cause as to why the parties should not be married to show cause
why. They may do so by entering a caveat against the issue of the certificated any
time before such certificate is issued. They registrar will then insert forbidden
opposite the notice in the marriage notice book and refer it to the High Court. The
Court will then summon the parties to the marriage as well as the person that
entered the caveat. Such person must then show cause why the Registrar should not
issue the certificate. The judge will then summarily pass judgement which shall be
final.
Just cause may include :
1. Either party is married
2. Either party is below 16
3. That the intentions of the parties are not bona fide e.g. They want to escape the
immigration rules
SOLEMNISATION OR
CELEBRATION OF THE MARRIAGE
Part VI of the marriage act deals with the solemnisation of
marriage. The following are the requirements:
1. The marriage must be solemnised in a licensed place of worship
by any licensed minister of the church, denomination or body to
which such place of worship belongs. According to the rites and
rules of that body. Most marriages solemnised in church follow
the banns procedure (announced on 3 consecutive services).
2. The marriage must be solemnised between 6am and 6pm (why?)
3. The marriage must take place in the presence of two or more
witnesses in addition to the officiating minister
Apart from the above requirements s21 states that a minister
must not solemnise the marriage where:
4. He knows of any just impediment to such marriage
5. The parties have not given him the certificate issued by the
registrar in accordance with s10(1) or a special license where
applicable
OBTAINING THE REGISTRARS
CERTIFICATE
 After notice of the intention to marry is given in
accordance with s6, the registrar within the period of 21
days and 3 months must upon payment of a prescribed fee
issue a his certificate.
 Before issuing a certificate the parties must show by
affidavit that:
1. They have obtained parental consent where applicable
2. One party has been resident within the district in which
the marriage is intended to be solemnised for 15 days
immediately preceding the granting of the certificate
3. Parties are not within the prohibited degrees of kindred
or affinity or any other lawful hindrance to the marriage
( see the Schedule to s27 and 28 of the MCA 2007)
4. Neither of the parties are married under African
customary law to another person.
OBTAINING A SPECIAL LICENSE
S11 provides an alternative to giving the 21
day notice of intention to marry prior to the
date of solemnisation. It allows for a special
license to be issued by a minister or
authorised officer( public officer designated
by the minister as such). The special license
authorises the parties named in it to be
solemnised by a Registrar or by a licensed
minister. The minister may also authorise the
solemnisation of the marriage in any other
place of worship not being a licensed place.
OBTAINING THE MARRIAGE
CERTIFICATE AND REGISTRATION
 The ceremony must take place in a place that is licensed by
the minister.
 The minister will then issue duplicate copy of a marriage
certificate, the certificate is to be signed by the officiating
minister, the parties and two or more witnesses to the
marriage.
 One certificate is to be delivered to the parties in seven
days after the date of solemnisation. The other copy is sent
to the Registrar-General.
 The registrar general will file the certificate in a book called
the marriage register book. This book is available to the
public and a search can be made upon payment of a fee.
 Every certificate of marriage filed in the marriage register
book shall be evidence of the marriage in any court of law.
EFFECTS OF FAILURE TO COMPLY WITH
THE FORMALITIES UNDER THE ACT
 S32 indicates that any marriage will be invalid if:
1. The parties are within the prohibited degrees of affinity and
kindred
2. Either party is married under customary law
3. Both parties knew and wilfully acquiesced in its
solemnisation (Siwo v Siwo see also Muyamwa v Muyamwa)
(a) In a place not being licensed/ the registrar’s office
(b) Under a false name
(c) Without the registrar’s certificate of notice or special
licence having been duly issued
(d) By a person not being a licensed minister of some religious
denomination or body or a registrar.
4. S 33 where either party is under the age of 16 the marriage
will be void unless there is consent obtained by a Judge of
the High Court.
SIWO V SIWO
SUBSEQUENT MARRIAGES
 Note that unless there has been a decree of
divorce or nullity, neither party is permitted
to conduct a statutory marriage or customary
marriage with another person. See s34 of the
MA
 See also s38 of the Marriage act if they do
conduct customary marriage to another
person this will amount to a criminal offence
with a maximum sentence of 5 years
PRESUMPTION OF MARRIAGE
 There is no presumption of marriage
recognised in Zambia, the decision of
Mafembe v Sitali overturned the courts
decision of Muyamwa v Muyamwa (1976) ZR
146 that held that where two people
undergo a marriage ceremony and cohabit
and hold themselves out to be man and wife
notwithstanding that the formalities are not
followed, there is a presumption of marriage
that arises, placing the burden on the party
that challenges the validity of the marriage.
CUSTOMARY MARRIAGES
 Procedure will depend on the particular type of custom
 Requirements for customary marriage:
Common characteristics
1. Marriage payment
2. Consent from parents (defined widely to include grand parents, aunts and uncles)
3. Giving away ceremony
What affects the validity of a customary marriage
4. Lack of consummation of the marriage
5. Age? Normally no age restrictions, as long as the girl has reached puberty and the man is capable
to support the family
6. Prohibited degrees of kindred? Some cultures prohibit marriage between blood relatives or people
of the same clan. Lillian Mushota gives an example of the Nsenga that prohibit blood relatives
form marrying due to fear that the child will have some abnormality.
7. Polygamy is permitted in some tribes such as the Tonga.
Registration
A customary marriage may be registered at a local court or a council in an urban or rural area. The parties
appear before the council with the wife’s parent/ guardian to confirm the validity of the marriage
under the custom applicable to the parties. Notwithstanding that, there is no requirement to
register a customary marriage. To dissolve one the parties may go before the local court or the
parties may do so according to their custom i.e. Returning the wife to the family for instance.

See
R v Chinjamba NRLR Vol V 384 (Lillian Mushota pg 64)
Sibande v The People (1975) ZR 101 (SC)
CONVERSION
 One may convert a customary marriage to a
statutory one however a statutory marriage
cannot be converted to a customary one, to
marry under customary law first a divorce in
accordance with the matrimonial causes act
2007 must be obtained.