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SIMILARITIES AND DIFFERENCES IN THE STAGES LEADING CUSTOMARY

MARRIAGES AND STATUTORY (CIVIL) MARRIAGE.

BY LARRY HORE NJUNGU

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INTRODUCTION:

Marriage has basically been defined as a voluntary union for life of one man and one woman to
the exclusion of others.1 This definition is a good starting point towards the appreciation of any
marriage, even though it is inadequate2. Many definitions have arisen to circumvent the
inadequacy of this definition by Lord Penzance. Among them is one by the Law Association of
Zambia, through its National Legal Aid Clinic for Women who simply define marriage as a
union between man and woman and recognized by the law whether customary, religious or
statutory.3 The Association goes further to state that in Zambia the law recognizes three types of
marital unions namely: statutory law marriage, customary law marriage, religious or church
marriage4. Cohabiting in Zambia, for whatever length of time, does not turn into a marriage and
the parties thereto will remain boyfriend and girlfriend.5
Nevertheless, the intention of this essay is to discuss two types of marriages - that is customary
marriage and statutory marriage (also known as civil marriage). The essay specifically pays
attention to similarities and differences obtaining in the stages leading to final marriage under the
two types. After comparing and contrasting the stages leading to marriage under the two heads,
the essay highlights challenges that compromise strict adherence to these types of marriages in
Zambia. It is the authors opinion that most marriages in Zambia, whether called civil or
statutory, import or sneak in rituals belonging to the other type. Hence what subsist in most cases
are hybrid marriages, either heavily skewed towards statutory marriage or customary marriage. It
is this skewedness that mainly forms the yardstick for classifying a marriage as civil or
customary. It is also the authors view that customary marriages in Zambia must be codified into
a statute to curb some of the injustices6 associated with such marriages.
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HOW CUSTOMARY MARRIAGES ARE CONTRACTED IN ZAMBIA


A GLIMPSE OF THE BEMBA TRADITION

To a large extent, the main stages leading to the finality of a customary marriage in Zambia tend
to be the same across all tribes, save for the differences in nomenclature.7

Lord Penzance in Hyde V Hyde and Woodmansee (1866) LR1 P & D 130
The definition does contemplate divorce, same sex marriage or polygamy and involuntary
union under customary marriages
3
National Legal Aid Clinic for women (2009), Booklet on Marriage, Lusaka, Zambia pp. 2
4
Ibid pp. 3
5
The case of Mafemba v Sitali SCZ judgment no. 24 of 2007 is illustrative of this position
in law.
6
In some customs, consent of the bride or even groom to be is overridden and age of the
girl is not a factor.
7
Martin Mwango (December 23, 2010) The Zambian Marriage, Lusaka Times, Zambia
2

By and large, the consent of the prospective wifes parents 8, payments (in varied forms) for the
bride and a hand over ceremony are the commonest feature that are prevalent in almost all
customary marriages in Zambia. These three rituals have been there for generations and
generations and signify a valid customary marriage.9
In the Bemba tradition, the marriage process begins with the man taking the first step by way of
informing his confidant (usually the uncle and if not, any other relative or close family friend) of
his intention to marry a woman he has been seeing. Subsequently, this confidant plays a role of a
go between, representing the prospective husband to the family of the prospective wife.
This marriage representative, if it is a man he is known as Bashibukombe or if it is a woman she
is known as Banabukombe. He or she must be a trustworthy person and knowledgeable about
marriage matters in accordance with the Bemba custom. Although in other tribes they may be
known by different names, the principal duties of such a person is to oversee the entire marriage
negotiation process (on behalf of the prospective husband) with the prospective wifes family.
The first step for Bashibukombe or Banabukombe is to notify the parents or kin of the woman
about the mans intention to marry their daughter.

This notice of intention to marry is

synonymous with formalizing a marriage proposal to the womans family. It is usually


symbolized by payment of a token called Insalamu in Bemba. If the brides parents are
objectionable to the marriage, they will refuse or return the Insalamu. However, if they have
accepted the marriage proposal, at a later day they will prepare a meal, referred to as Icisumina
Nsalamu (acceptance of the marriage proposal) which they will deliver to the groom. In the
Bemba custom, this meal only consists of one plate of Nshima (the traditional thick porridge
made from maize meal) and a plate of a whole chicken.
After icisumina nsalamu, the Bshibukombe or Banabukombe will return to the womans family
with a request that they be charged the bride price commonly known as lobola. Once agreement
has been reached on the bride price, the Bashibukombe or Banabukombe will either pay in full or
in installments. Most authorities are clear that the part payment of lobola is also sufficient to
constitute a customary marriage. Again it is trite in African Customary Law that there is no rigid
custom governing the time stipulation within which lobola has to be fully paid. What is
sacrosanct is the undertaking to pay the agreed lobola. 10 However, this view seem to be in
contrast with the Lozi tradition which insists on actual transfer of lobola either in full or part and
not mere undertaking that lobola will be paid11. According to the Lozi tradition, if marriage

The word parents in this context extends to uncles, aunties, grandmother or grandfathers,
guardians and kinship of the prospective wife..

Richard Katebe, March 3, 2012, Customary Marriages in Zambia, KitweOnline,


Zambia

10

Mokgoathleng J in Maloba v Dube [2008] ZAGHPHC 434 at para 24, Case no 08 /3077-23
June 2008.
11
In Mafemba v Sitali SCZ judgment no. 24 of 2007, a cohabitation of 14 years in which
two children were born was ruled not to be marriage on account of non payment of dowry.

payment is promised, but not transferred, the woman is a wife for the country with whom any
man can fornicate or elope without penalty.12
Lobola, whether known by any other name13, can be in many forms including inter lia, property
in cash or in kind, which a prospective husband undertakes to give to the prospective wifes
family in consideration of a customary marriage.
After this stage, the prospective wifes family prepares a feast consisting of different dishes
which they deliver to the groom to symbolize an open invitation to dine with the brides family
on future visits as well as to showcase brides family traditional cuisine.. This banquet is known
as Icilanga mulilo.
At the end of all these formalities, the girl is handed over to the man in some ceremony.
3.0

A GLIMPSE OF A CIVIL MARRIAGE PROCEEDURE

The stages towards a valid civil marriage are enshrined in the Marriages Act Cap 50 of the laws
of Zambia and because they are written down, it is easy to refer to them for guidance as people
prepare for such a marriage.
A civil law marriage starts with notice of intention to marry, on a prescribed form, to the
Registrar of marriages in the District where marriage is intended to take place. Such notice can
be made by either party to the prospective marriage and must not be less than 21 days before the
date of solemnization14.
In civil marriages the notice of intention to marry is meant to provide a measure of publicity for
the intended marriage and to give time in which objections to the marriage (e.g. on the grounds
that it is bigamous) may be made. Section 9 of the Marriages Act orders the Registrar of
marriages to publicize notices of intention to marry by way of entering them in the marriages
notice book which is open to public inspection during office hours. It also states that the
Registrar shall also place such notice at the outer door of his office.
The Registrar is supposed to issue a certificate after the expiration of twenty one days but before
the expiration of three months from the date of notice upon satisfying himself that the
prospective wife and husband are legally eligible to marry as construed from the details carried
by a sworn affidavit. The Registrar is also mandated to counsel the party, swearing the affidavit,
of unlawful marriages and penalties they attract.15
In civil marriage, consent of prospective wife and husband is enough as long as they are both of
majority age, they are 21 years and above. In the event that either part is below 21 years but
12

Max Gluckman, (1955), Re Judicial Process Among the Barotse of Northern Rhodesia
(Zambia), Manchester University Press. pp 210
13
For example Nsambo among the Chewa of Katete, Luselo among the Tonga of Gwembe,
Miketo or bindelo among the Kaonde of Solwezi, Tsambo among the Gova of Kafue,
Ubusonge among the Chishinga of Kawambwa etc.
14
Section 6 of Marriages Act, Cap 50 of the laws of Zambia
15
Section 10 (1) I, ii, iii, iv, (2) and (3) Marriages Act, Cap 50 of the laws of Zambia

above 16 years consent of the father or mother or guardian or the courts or anyone authorized by
law is required.16
A valid marriage under the Act need to be solemnized by a lincesed minister, pastor or priest in a
licenced place unless exempted by a special licence.17

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DIFFERENCES IN PROCEEDURE BETWEEN CIVIL AND CUSTOMARY


MARRIAGES

The customary marriage practice of having a go between, to propose and negotiate marriage
settlements on behalf of a prospective husband with the prospective wifes parents or kin, is alien
to civil law marriage. With civil marriages, either party to the envisaged marriage can initiate the
process by way of lodging in a notice of intention to marry with the Registrar of marriage in a
particular district were marriage will take place.18
In customary law marriages granting of consent by the prospective wifes parents or relatives
reign supreme in validating a marriage. This is not the case with civil marriages were only the
consent of a prospective wife and husband matters. To illustrate that consent by the womans
parents or kin is cardinal in validating a customary marriage, in Sibande v The people19 the
courts ruled that there was no customary marriage between the man and the girl as there was no
consent, whatsoever, from any of the parents. In this case, Sibande wanted to rely on existence of
a customary marriage between him and an underage girl to escape a defilement charge. Parental
consent appears to be the norm even in the whole Southern Africa region like was again
confirmed in the case of Southon v Moropane 20. In this case, the man was contesting that no
marriage had subsisted between him and the petitioning wife. It was however testified that
besides other rituals, there was consent from the wifes family who had also graced the marriage
ceremony in form of a feast. Based on this, inter alia, the court ruled that a customary marriage
existed between the two parties.
To the contrary, in civil law marriages, consent of parents, guardians or otherwise is dispensed
with as long as the would be wife and husband are 21 years and above. 21 It is only in instances
were either party to the envisaged civil marriage is under 21 years that the requirement of
parental, guardian or any other authorized persons consent comes in 22. If such consent (in case
of an under 21), is absent then the marriage is void.
Civil marriages must be nothing short of a voluntary union as enunciated by Lord Penzance in
Hyde v Hyde and Woodmansee23. Civil law marriages that are entered into without genuine
consent of either party are voidable. This importance of consent by parties to a civil marriage
was also demonstrated in Smith v Smith.
16
17
18
19
20
21
22
23

Section 17, 18 and 19 of Marriages Act, Cap 50 of the laws of Zambia


Section 12, 20 and 22, Cap 50 of the laws of Zambia
This is provided for by Section 6 of the Marriages Act, Cap 50 of the laws of Zambia,
1975) Z.R. 101 (s.c.)
(14295/10) [2012] ZAGPJHC 146 (18 July 2012)
Section 10 (1) ii of the Marriages Act Cap 50 of the laws of Zambia
Section 17, 18 and 19 of Marriages Act, Cap 50 of the laws of Zambia
(1866) LR1 P & D 130

Customary law marriages are mainly associated with some form of initial payment (from the
prospective husband to the prospective wifes family to symbolise a request or proposal to marry
their daughter, which in Bemba is known as insalamu. On the other hand, civil law marriages, as
governed by the Marriage Act Cap 50, places no requirement on either party to pay the other any
form of payment. It only talks about fees which accrue to government, mainly for the procession
of paper work and other incidental administrative cost.
Another payment associated with Zambian customary marriages is the brides price commonly
known as lobola. While this is not a requirement in civil marriages, customary law marriages
regard this payment as of prime importance in ascertaining the existence of marriage. In
Mafemba v Sitali24 , the appellant had lived with respondents daughter, who he had considered
to be his wife for 14 years and had two children together. When the respondents daughter passed
on, the appellant claimed to be the surviving spouse entitled to the estate that the deceased left
behind. When it came to determine whether marriage really existed between the two, in order to
qualify the appellant as surviving spouse, , the courts ruled that no marriage existed as the man
never paid any lobola or dowry as demanded by the Lozi custom.
The traditional principle that there can be no African customary marriage without lobola being
delivered or at least negotiated, still prevails.25 It is a pervasive and enduring feature of customary
marriages which has been universalised by society at large such that the Local Courts in all
customary law marriage cases that come before them will not recognize a marriage where no
lobola was paid.26
In Mccabe v Mccabe27 an attempt by an Irishman to disown a marriage he had contracted with a
Ghanaian woman under the Akan customary law in order to avoid liability failed. It was held that
payment of 100 British pounds and a bottle of gin which the man presented to the womans
family constituted a brides price (lobola) enough to legalize the marriage that ensued.
In the Bemba custom, Lobola, among others, is aimed at bringing the two families together,
fostering mutual respect, and indicating that the man is capable of supporting his wife, both
financially and emotionally. Lobola is also a gesture of gratitude on the part of the grooms
family to the brides family for looking after and bringing up the bride.
Whereas civil marriages have to be solemnised by a licenced religious minister, pastor or priest
in a licenced place and between six oclock in the morning and six oclock in the afternoon with
open doors28 unless otherwise exempted by a special licence, in customary marriages families are
free to choose their own way of solemnising a marriage at any place of their choice as long as it
does not conflict any law of the land. All solemnisation ceremonies for a civil marriage must be
24

SCZ judgment no. 24 of 2007


De Jure Law Journal , Volume 1, 1998. Jaargang,Perceptions of the Law regarding ,
attitudes towards lobolo in Mamelodi and Atteridgeville, By M W Prinsloo et Al, p 92
26
Tanonoka Joseph Whande (26-08-2007) Sunday Standard, Is paying lobola an
outdated traditional practice? SUNDAY STANDARD
25

27
28

Court of Appeal (Civil Division)[1994] 1 FLR 410, [1994] 1 FCR 257


Section 20 of Marriages Act, Cap 50 of the laws of Zambia

witnessed by two or more people apart from the officiating minister of religion, pastor or priest. 29
The public policy of securing publicity for a marriage remains one of the objectives of a civil
marriage. Civil marriages again stem from the values and beliefs professed by the Christian
religion while customary marriages stem from ethnic dogmas.
For customary marriages there is no requirement to have them registered and obtain a certificate.
This is left at the option of the families or couples involved. However, it is mandatory to have all
civil marriages registered and certificates issued in order for the marriage to be recognized 30. The
Registrar of marriages, the parties to the marriage and the witnesses sign this marriage certificate
in a civil marriage.
5.0

SIMILARILITIES IN PROCEEDURE BETWEEN CIVIL AND CUSTOMARY


MARRIAGES

It is of utmost important to acknowledge from the outset that both civil and customary marriages
are conducted in an organised or systematic manner. By practice customary marriages are
preceded by preliminaries just like in the case of civil marriages which are preceded by
preliminaries as set out in the Marriage Act cap 50.31
Although in different forms and to different recipients, notice of intention to marry is present in
both types of marriage. In a civil marriage, a notice of intention to marry is given to the Registrar
and in a customary marriage a notice of intention to marry is given to the parents or kin of the
prospective wife.
Another common characteristic that a civil marriage shares with a customary marriage is that at
the end of all preliminaries there is some kind of some ceremony before cohabitation. In
customary marriages each ethnic group has its own way of doing it, with or without pomp,
publicity or restricted to close relatives of both bride and groom. 32 In civil marriages weddings of
different degrees, preceded by a church ceremony, are common. It is worth noting here that many
customary marriages, especially in urban settings, are also concluded by a wedding which is
preceded by a church ceremony.
Ceremonies are an important aspect of a valid marriage whether in a civil or customary marriage
and on account of them a presumption can be made that all other formalities were complied with.
Sir Jocelyn Simon, P. in the case of Mahadervan v Mahadervan33 stated that: "Where there is
evidence of a ceremony of marriage having been gone through, followed by the cohabitation of
the parties, everything necessary for the validity of the marriage will be presumed in the absence
of decisive evidence to the contrary ..34 The Zambian case of J.M. Montimbi Siwo v
P. Amesi Siwo35 is also instructive here.

29
30
31
32
33
34
35

Ibid
Section 27 of the Marriages Act, Cap 50 of the laws of Zambia
Section 6 to 16 of the Marriages Act, Cap 50 of the laws of Zambia
Lillian Mushota (2005) Family Law in Zambia cases and materials; Lusaka: University of Zambia pp
1962 3 All ER
Extracted from Halsbury's Laws 3 Ed. 19 p. 813
(1970) Z.R. 79 (H.C.)

It is increasingly becoming a pre-requisite in customary marriages that they must be consent


from the prospective wife. Max Gluckman, (1955), in referring to the Lozi custom, pointed out
that: since 1917 the Lozis have conducted marriages under King Yetas marriage laws which
lay down the conditions for establishing marriages. The guardians of the woman must accept
marriage payment established under the edict and the girl must consent to the marriage. 36 If
consent by a prospective wife is the norm, like cited above, then this underscores a similarity
between customary marriage and civil marriages.
6.0

CONCLUSION

Of the two marriages under discussion, contracting a civil marriage appears to be simplified and
straight forward.
It is also important to note that today there are a few customary marriages that are followed to
the letter in accordance with custom pertaining to a particular tribe. The customary marriages
being practiced, especially in urban settings, tend to be influenced by a number of factors. Due
to political, economic and social influences many Zambians are now practicing a pick and mix
version of marriages mainly for convenience purposes. For instance, in some tribes the procedure
for a customary marriage may be so long, tasking and very involving for busy modern fiancs. In
such instances, it is common to see people pick just some basic requirements and compliment
them with civil marriage practices such as a wedding ceremony preceded by church service.
Some people have not fully understood the meaning or interpretation of their own ceremonies.
Some have skipped and changed on account of financial constraints. Others have had to adjust
their traditions as a way of compromising with a partner from a completely different culture.37
On the other hand, Zambia could ensure meaningful justice for all if it codified customary
marriages into statutes to curb unfair practices associated with customary marriages such as lack
of consent on intending parties and marrying off of minors or under age marriages. For instance,
is saddening that a Man can go scot free after having carnal knowledge of a girl under sixteen
years on an excuse of customary marriage like was the case in R v Chinjamba 38. Many countries,
such as South Africa, Kenya, Nigeria etc. have moved in and codified customary marriages to.

36

Max Gluckman, (1955), Re Judicial Process Among the Barotse of Northern Rhodesia
(Zambia), Manchester University Press. pp 210
37
Richard Katebe, Times of Zambia, March 3, 2012
38

NRLR Vol V, 384


7

BIBLIOGRAPHY
Books:
Lillian Mushota (2005) Family Law in Zambia cases and materials; Lusaka: University of
Zambia Press
Max Gluckman, (1955), Re Judicial Process Among the Barotse of Northern Rhodesia
(Zambia), Manchester University Press.
National Legal Aid Clinic for women (2009), Booklet on Marriage, Lusaka, Zambia
Journals:
De Jure Law Journal , Volume 1, 1998. Jaargang,Perceptions of the Law regarding , attitudes
towards lobolo in Mamelodi and Atteridgeville, By M W Prinsloo
Articles:
Martin Mwango (December 23, 2010) The Zambian Marriage, Lusaka Times, Zambia
Tanonoka Joseph Whande (26-08-2007) Sunday Standard, Is paying lobola an outdated
traditional practice? SUNDAY STANDARD
Richard Katebe, March 3, 2012, Customary Marriages in Zambia, KitweOnline, Zambia

CASES CITED
Hyde V Hyde and Woodmansee (1866) LR1 P & D 130
J.M. Montimbi Siwo v P. Amesi Siwo (1962)

3 All ER

Mafemba V Sitali SCZ judgment no. 24 of 2007.


Mahadervan v Mahadervan
Maloba v Dube [2008] ZAGHPHC 434
Mccabe v Mccabe Court of Appeal (Civil Division)[1994] 1 FLR 410, [1994] 1 FCR 257
Sibande v The people (1975) Z.R. 101 (s.c.)
Southon v Moropane (14295/10) [2012] ZAGPJHC 146 (18 July 2012)

STATUTES USED
8

The Marriages Act, Cap 50 of the laws of Zambia