Family Law Module Done by An Unza Lecturer

lOMoARcPSD|5065845
Family Law Module - done by an unza lecturer
Law (University of Zambia)
StuDocu is not sponsored or endorsed by any college or university

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)
lOMoARcPSD|5065845
UNIVERSITY OF LUSAKA
SCHOOL OF LAW
FAMILY LAW AND

SUCCESSION
MODULE FOR DISTANCE LEARNING STUDENTS
2010 ACADEMIC YEAR

NAMANGOLWA MATEELE, LECTURER

lOMoARcPSD|5065845
Table of Contents
PART 1 HUSBAND AND WIFE

UNIT 1- INTRODUCTION TO FAMILY LAW.........................................................................................3
UNIT 2 – MARRIAGE ……………………………………………………………………………………………………………………..8
UNIT 3 – NULLITY OF MARRIAGE………………………………………………………………………………………………….14
UNIT 4 – EFFECTS OF MARRIAGE …………………………………………………………………………………………………20
UNIT 5 – BREAKDOWN /TERMINATION OF MARRIAGE ……………………………………………...……………….24
UNIT 6 – JUDICIAL SEPARATION.……………………………………………………………………………………….………...33
PART II – CHILDREN AND FAMILY LAW

UNIT 7 – PARENTS AND CHILDREN ………………………………………………………………………………………………34
UNIT 8 - LEGITIMACY ……………………………………………………………………………………………………………. ….39
UNIT 9 – ADOPTION ………………………………………………………………………………………………….……………….41
UNIT 10 – CUSTODY ……………………………………………………………………………………………………………………45
PART III – PROPERTY AND FINANCIAL PROVISION

UNIT 11 – RIGHTS IN PROPERTY CREATED AND AFFECTED BY THE RELATIONSHIP OF SPOUSES ….48
UNIT 12 – FINANCIAL SUPPORT FOR MEMBERS OF THE FAMILY………………………………………………….53
UNIT 13 – FINANCIAL RELEIF FOR MEMBERS OF THE FAMILY ON DIVORCE, NULLITY & JUDICIAL
SEPARATION …………………………………………………………………………………………………………………………….55
UNIT 14 - PROPERTY AND FINANCIAL PROVISION ON DEATH OF A MEMBER OF THE FAMILY …...64
Family Law Lecture notes compiled by N.Mateele – LLM (UCT), LLB (UNZA), AHCZ, ASCZ. Page 2

lOMoARcPSD|5065845
PART 1: HUSBAND AND WIFE
UNIT 1: THE CONCEPT OF FAMILY
1.0 INTRODUCTION
The word “family” is devoid of a precise definition. The word may be easy and at the same time
difficult to comprehend. To one person it may mean all the blood relations descended from a
common ancestor; to another it may mean all the members of a household, including husband
and wife; children and servants. These definitions are far too wide and differ from the definition
encapsulated by the law. Thus for our purposes we may regard “family” as a basic social unit
comprising of husband and wife and children if any. To a Zambian family includes not only
husband, wife, children but also the extended family on both sides. The trend now however is a
shift from this view of family as more and more families are becoming nuclear and the concept
of the extended family is now in decline.
The law’s concept of “family” has been under tremendous pressure to catch up with the
realities of modern life. Thus we have witnessed how the ‘traditional’ family consisting of
married parents and their dependent children has evolved. For many years family law was
concerned with the status of marriage and the consequences of its breakdown. Today it is a
whole different story. The focus is now on parenthood rather than marriage, and this is seen as
a channel through which rights and responsibilities can be safeguarded. The rise in cohabiting
couples and also the advent of same sex relationships have been added to this pressure.
Human rights laws have also contributed a lot to the changing attitude towards different forms
of family.
Most countries have embraced these changes notably Western Countries. In England for
instance, we can now talk of Civil Unions in addition to the traditional marriage. These
changes are yet to be effected in Zambia and there are presently no signs of embracing these
changes anytime soon.

lOMoARcPSD|5065845
1.1 NATURE AND SCOPE OF FAMILY LAW
Family law deals with the following:
 Creation and removal of legal status;

 Its consequences; and
 The protection (both physical and financial) of family members.
In some countries especially western, it is understood to deal mostly with the nuclear family
i.e. between spouses; between parents (guardians) and children. Members of the extended
family do have some rights at times.
In Zambia family transcends Husband, wife and children. It includes the extended family
though this is changing over time; we are getting to the notion of family being nuclear. For
instance death of a Spouse will entitle his /her parents to a share of the estate under the
intestate succession Act. So in this way one could argue that it involves the extended family
to some extent. The extended family is also involved at the time one is proposing to marry
even if the marriage is a statutory one (creation of the legal relationship between spouses).
In some countries the local authorities may also be involved in family affairs when
performing their child protection role. The court too will be involved in its protective role of
the weaker members of the family especially children.
In some western countries the meaning of family is being extended to same sex couples and
their laws have been adapted to reflect this change in relationships.
1.2 ENGAGEMENT AND COHABITATION

1.2.1 Engagement
What is the status of an engagement in Zambia?
In some countries an engagement is as almost solemn and carries many responsibilities as

marriage itself.
The betrothal or engagement is merely an agreement between a man and a woman who are
both free to marry each other that they will marry each other at some time in the future.

lOMoARcPSD|5065845
In England, it is no more than an agreement between 2 parties that they will marry at some
time (often unspecified) future date. Such an agreement was once regarded as an enforceable
contract which could result in a suit for breach of promise. This was however changed by the
Law Reform (miscellaneous provisions) Act 1970. The Act in s 1 declared that an agreement
to marry is not an enforceable contract. However the Act species some action with regard to
property e.g. a gift from one party to the other may be subject to an implied or express
condition that it is to be returned if the marriage does not go ahead- s3(2). There is a
rebuttable presumption that no such condition attaches to an engagement ring.
Section 2 addresses the beneficial interests of engaged couples in property they may have
bought together or worked on together, allowing the courts to determine such interests as if
the couple had been married. This is only limited to cases such as those involving trusts.
An engagement may come to an end:

 Where one of the parties dies;
 Where the parties agree to terminate the engagement; and
 Where one of the parties withdraws unilaterally.
Bernard vs. Joseph (1982) 3 ALL ER 162 CA
An engaged couple M and W bought a house and lived in it together;

the house was in their joint names, they shared the initial expenses
more or less equally, and the mortgage instalments were paid out of
the rent received from lodgers. When they separated two years later,
W moved out and M remained in the house with another woman: W
sought an order that the house should be sold and a declaration that
she was entitled to a half share in the proceeds. The trial judge made
the order and the declaration sought (subject to minor deductions),
and M appealed. The Court of Appeal postponed the order so that M
could buy out W's interest, but upheld the declaration.
Mossop v Mossop [1988] 2 All ER 202, CA
An engaged couple P and D lived together in D's house; when they

separated, P claimed a property transfer order giving her a share in
the value of the house. (Such an order is available to a spouse, at the
court's discretion, under s.24 (1)(b) of the Matrimonial Causes Act
1973.) The registrar struck out the claim, and Ewbank J and the Court
of Appeal affirmed his decision. Balcombe LJ said property transfer
orders are available only in cases of divorce, nullity or judicial

lOMoARcPSD|5065845
separation, and the 1970 Act did not give the court jurisdiction to
make any such order where a couple had broken off an engagement.
1.2.2 COHABITATION
There has been a tendency especially in western countries for people to cohabitate instead of
marrying. This trend seems to be gaining ground even in our societies as more and more
people are finding cohabitation more convenient than marriage.
What is Cohabitation?
The particularity of cohabitation is that a couple are living as husband and wife without
actually being married. A couple will be said to be cohabiting if a number of the following
exists:
 They are living under one roof;

 They are having an ongoing sexual relationship;
 The financial support of one party to the other;
 The stability and permanence of the parties; and
 Whether the reasonable person, taking into account of the couple’s life together,
would deem them as an unmarried cohabiting couple.
There are a number of differences between cohabitation and marriage.
Cohabitation can end abruptly and no formalities exist for ending it.
But for marriage there are formalities such as a decree of nullity or divorce to end it.
A cohabiting couple cannot make a joint application to adopt a child and law with
regards to financial provision does not apply.
A divorced man/woman may be granted parental rights and custody of a child.
This case demonstrates that ‘cohabitation’ or living together without going through any
marriage rituals is not recognised in Zambia. (More in the next unit).
In England for instance, the passing of the Civil Partnerships Act 2004 entails that rights of
cohabiting couples are protected by law in addition to those of same sex unions.

lOMoARcPSD|5065845
Mafemba vs. Sitali (2007) ZR 215 (SC) – whether lengthy cohabitation constitutes a valid
marriage?
Mafemba lived with Inonge Sitali for a period of 14 years and they
produced two children during their stay together. Inonge passed on
and her mother was appointed Administrator of her estate. Mafemba
sued her claiming that he was the widower and therefore entitled to
her estate. The case was finally heard in the Supreme Court by way of
appeal and it upheld the High Court decision which had stated that
Mafemba was not a husband to the deceased notwithstanding that
they had lived together for 14 years and had two children.
1.3 COURTS ADMINISTERING FAMILY LAW
Local courts – Customary law issues- this pertains to marriages under customary law. This
local courts deal with the validity of such marriages, how they terminate and also issues of
custody of children and sharing of property upon divorce. It also deals with issues pertaining
to the administration of a deceased’s estate.
Subordinate courts- It deals with inter alia, maintenance pending divorce (whilst one is
contemplating divorce or on separation) or after divorce, paternity issues for affiliation
purposes, and other ancillary relief a party may seek. Under certain circumstances (as we
shall see under the Adoption Act) can hear applications for Adoption.
High court – has jurisdiction and power in relation to matrimonial causes instituted under the
Matrimonial Causes Act of 2007- see s 4. It hears petitions for divorce, custody and access to
children, property settlement and also deals with adoptions among other issues that relate to
family law
Supreme Court- It only hears appeals from the lower courts. It is the final arbiter in all
matters and therefore a party dissatisfied with its decision shall have no other recourse. The
reason is to bring matters to finality. A case can start from the local court and be finally
disposed in the Supreme Court.
UNIT 2: MARRIAGE

lOMoARcPSD|5065845
2.0 Introduction
Marriage is traditionally defined as a union of one man and one woman who mutually agrees
to live together as spouses until the marriage is dissolved by the death of one of them or as
otherwise provided by law. This union imposes rights and duties on the parties. It also
confers a status, that is, of married persons whom the law assigns legal capacities or
incapacities. The classic definition of marriage was summed up by Lord Penzance in Hyde
vs. Hyde (1866) LR1 P&D 130,133 as “the voluntary union for life of one man and one
woman to the exclusion of others”.
Marriage is an agreement by which a man and a woman enter into a legal relationship by
becoming husband and wife. This legal relationship gives rise to mutual rights and duties and
also confers a status, of married persons to whom the law assigns legal capacities and
incapacities.
2.1 CHARACTERISTICS OF MARRIAGE
 It must be voluntary- parties getting married should consent to such marriage;
 It must be for life – although it may come to an end through a judicial process.
 The parties to a marriage should be of different sexes? South African case of

Lesbian and gender project and others V minister of home affairs and others; the
SA marriage Act as well as common law definition of marriage was challenged. The
constitutional court held that the common law definition of marriage was
unconstitutional and invalid to the extent that it does not permit same-sex couples to
enjoy the same status, benefits and responsibilities as those accorded to heterosexual
couples.
 Neither party to the marriage may re-marry as long as their actual union is subsisting.
2.2 TYPES OF MARRIAGE

lOMoARcPSD|5065845
 Customary marriage- this is a marriage conducted in accordance with a particular

tribe. It is potentially polygamous and includes essential elements such as consent of
the 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.
 Common law marriage- is one where 2 people from different jurisdictions celebrate
their marriage according to the law of the place of marriage where formal
requirements for a valid marriage according to English Law are not fulfilled, for
instance celebrating a marriage without a priest or a person with holy orders. This is
not recognised in Zambia.
 Statutory marriage – Marriage Act Civil union. We shall look at this type of
marriage shortly
2.3 CONTRACT OF MARRIAGE
Marriage is a contract formally entered into. It confers on the parties the status of husband
and wife, the core of the contract being an agreement between a man and a woman to live
together, and to love one another as husband and wife to the exclusion of all others. This
legal relationship creates mutual obligations and rights, typically involving the sharing of a
common home and domestic life and the right to enjoy each other’s society, comfort and
assistance.
In order to contract a valid marriage the parties to an intended marriage must possess the
legal capacity to marry and must comply with certain formalities which are discussed below.
2.4 CAPACITY TO MARRY
In order to contract a valid marriage the persons intending to marry must have capacity and
the following conditions must be satisfied:
 one party must be male and the other female; (same sex relationship excluded).
 neither party must be already married;
 both parties must be over the age of 16; and

lOMoARcPSD|5065845
 the parties must not be related within the prohibited degrees of consanguinity or
affinity ( related through blood or marriage).
2.5 FORMALITIES OF MARRIAGE
The formalities that must be met for a marriage to be valid under the law are outlined in the
Marriage Act cap 50 of the Laws of Zambia. There are three main elements and these are: the
preliminaries, the ceremony itself and registration of the marriage.
2.5.1 Preliminaries to Marriage
The Marriage Act under s 6 provides that the parties’ intention to marry must be publicised
before a marriage is solemnised. The rationale for such a requirement is to give an
opportunity for people to point out a “just cause or impediment” to the intended marriage, for
example that either the bride or groom is already married or is under age. To allow members
of the public to have an opportunity to object to the marriage for instance on the basis that the
groom to be is already married. This is also a way of detecting those who might wish to
marry for purposes of legitimising their stay in a country.
Most marriages solemnised in church follow the banns procedure, meaning the marriage must
be solemnised in a church where the banns have been published. The intended marriage is
announced on 3 successive Sundays during a church service in the parish where the parties
reside.
In terms of s 6 of the Act, no marriage shall be solemnised unless the notice of intended
marriage has been given in the prescribed form by one of the parties thereto to the registrar.
Read sections 6 through to 16 of the Act.
2.5.2 Parental Consent
The requirement that in under certain circumstances parental consent may be required before
an intended marriage may take place. In terms of s 17 when either party to an intended
marriage is under the age of 21, written parental consent of the father, mother or guardian
may be required as the case may be.
S 18 - signature to consent and attestation if parent unable to write.

lOMoARcPSD|5065845
S19 – consent in case of refusal by parent or guardian may be given by court order
2.5.3 Solemnisation of Marriage
 The marriage must be solemnised in any licensed place of worship by a licensed

minister of the church s20 of the Act;
 S 21 – registrar’s certificate or special license;
 S22- marriage in licensed building;
 S24 – completion of marriage certificate;
 S 25 – marriage certificate to be attested;
 S26 – marriage before a registrar in the presence of 2 witnesses;
 S27 – registrar to issue certificate;
 S28 marriage in building other than licensed building or registrar’s office;
2.5.4 Registration of Marriage
 S31 - certificate of marriage to be evidence of marriage;
2.5.5 Effect of not complying with the formalities
 S32 – no marriage in Zambia shall be valid if
 S32 (2) a marriage shall be void if both parties knowingly and wilfully acquiesce in
its solemnisation in any place other than the registrar‘s office or licensed building.
Siwo vs. Siwo (1970) ZR 79 HC- marriage contracted without the registrar’s
certificate or special licence
Petitioner and respondent agreed to marry and lobola was paid

to the girls’ parents. There was no mention of a customary
marriage and no ceremony took place. Instead a church
ceremony was held in accordance with church rites. There was
no certificate issued or a licence and the petitioner did not know
that this was a requirement. It was held that the marriage was
valid because only one of the parties was ignorant of the
requirements.

lOMoARcPSD|5065845
 S33 – a marriage between persons under the age of sixteen shall be invalid
 S34 - a person who contracts a marriage under this Act cannot contract another under
customary law .
2.4.6 Offences and Penalties
S 38 any person who contracts a marriage under the Act and is at the same time married
under customary law to any person other than the person is guilty of an offence and liable to
imprisonment.
2.6 PRESUMPTION OF MARRIAGE
If a man and a woman go through a ceremony of marriage, and afterwards live together and
are reputed to be married, then it is presumed that the necessary formalities have been
observed. The burden of proof lies with the person who challenges the validity of the
marriage.
Similarly if a man and a woman cohabit and hold themselves out as husband and wife, this in
itself raises a presumption that they are legally married.
This may be important especially in a case were the parties have been married abroad and
have no written or other evidence of the solemnization.
Muyamwa v Muyamwa (1976) ZR 146 HC- marriage of minor- lack of consent
The parties to the marriage went through a form of marriage

before the registrar and subsequently cohabited for 6 years
during which 3 children were born. The petitioner stated that
they had been married before by customary law. The Petitioner
was 18 at the time and did not have the written consent of her
mother since her father was dead. They never gave notice of the
intended marriage and the registrar did not issue a certificate.
The petitioner’s mother was one of the two witnesses who
attended the ceremony before the registrar. It was held that
there was implied consent to the marriage from the mother who
was a witness and therefore the marriage was valid.
This decision has been overturned by the Mafemba vs. Sitali case which is a Supreme Court
decision and therefore binding. It means that in Zambia a presumption of marriage is not
recognised by law.

lOMoARcPSD|5065845
UNIT 3 - NULLITY OF MARRIAGE
3.0 Introduction
Flowing from the fact that there are various legal requirements for a valid marriage, the
absence of any one or more of these requirements will affect the validity of the marriage. The

lOMoARcPSD|5065845
effect can be to render the marriage voidable or void. This is different from terminating the
marriage altogether. (Avoid confusing a decree of nullity with a decree of divorce). In the
former case a marriage comes into existence but that marriage can, as a result of the non-
compliance with a requirement, be set aside by the court. In the latter case there is in fact no
marriage since the facts are insufficient to constitute a valid marriage. Thus one of the ways
in which a marriage may come to an end is by a decree of nullity. Just like in the case of
divorce, a decree of nullity ends the marriage and the parties are free to marry thereafter.
3.1 WHAT IS NULLITY?
This is a statement to the effect that the marriage in question never existed, that is, the
marriage is and has always been null and void. Thus a marriage may be void or voidable. The
distinction between a void and a voidable marriage is very important. This is because certain
grounds for a valid marriage are seen by the state as fundamental to the creation of a
relationship and those grounds that are a matter for the parties themselves since any
‘interested person’ may take proceedings if the marriage is void, whereas only the parties
themselves are entitled to seek an annulment if the defect is one that merely renders it
voidable.
3.2 DIFFERENCES BETWEEN VOID AND VOIDABLE MARRIAGE
Void voidable
1. Never existed from the beginning Valid until annulled by the court
2. Unnecessary to obtain a decree Necessary to obtain a decree
3. Can be pronounced void even after the Can only be annulled during the lifetime of the
parties have died parties
4. No bars Decree may be barred in certain specified

circumstances
3.3 VOID MARRIAGE
As earlier stated this is a marriage that never existed from the beginning and is said to be void
ab initio. It was never a marriage at all notwithstanding its apparent celebration. The law

lOMoARcPSD|5065845
under S 27 of the MCA 2007 provides that any marriage celebrated after the commencement
of the Act shall be void on the following grounds:
a. That the marriage is not valid under the marriage Act;
(i) Parties are within the prohibited degrees of consanguinity and affinity. This
refers to sexual relations with close blood relatives and these are discouraged
in order to protect children from being sexually exploited by their relatives or
concern about the increased likelihood of development of inherited genetic
disorders. The prohibited degrees go beyond relationships of consanguinity
(blood relationships) to relationships created by marriage (relationship by
affinity). For examples see the schedule in the MCA Act 2007.
Durga vs. Ismail (1992) ZR HC- prohibited degrees of consanguinity
The parties married before the registrar and thereafter

discovered that they were blood cousins. It was held that the
marriage was within the prohibited degrees of consanguinity
and therefore void notwithstanding that there was no
consummation.
(ii) Either of the parties to the marriage was under the age of 16 (distinguish with
parental consent for 21 yrs- failure to obtain does not invalidate the marriage
in England, what is the position in Zambia). See Muyamwa vs. Muyamwa
(1976) ZR 146 HC (brief facts in previous unit).
(iii) Parties have not complied with the requirements of the Marriage Act-s32(2)
(b) Either was lawfully married to someone else –bigamy see
The People vs. Chitambala (1969) ZR 142 HC- offence of bigamy
The accused had been married under customary law and

subsequently attempted to take a second wife under statutory
law. He was convicted for the offence of bigamy as he was
already married under customary law.
(c) The parties to the marriage are of the same sex – not male and female.
3.4 VOIDABLE MARRIAGE

lOMoARcPSD|5065845
This is a valid marriage until it is annulled by a decree. The parties to such a marriage must
therefore obtain a decree before they can start living as single people. The law under S29 of
the MCA provides the grounds upon which a marriage shall be declared voidable.
(a) Marriage has not been consummated due to incapacity of either party to consummate
it. Consummation is achieved by one act of sexual intercourse after the marriage
ceremony. The act of sexual intercourse must be ‘ordinary and complete’ and not
impartial and imperfect; there must be both erection and penetration for a reasonable
period of time. Non consummation is due to incapacity of either party, it does not
matter whether the reason for the incapacity is physical or psychological. The
incapacity must be incurable or if curable only by an operation that is dangerous
unlikely to succeed or refused by the party suffering the incapacity.
W. v W (1967) HL
A husband who can sustain an erection for only a short period

has been found incapable of consummating his marriage.
Baxter vs. Baxter (1948) AC 274
The House considered whether a wife who insisted that her

husband always used a condom was thereby guilty of a
wilful refusal to consummate the marriage within the
meaning of section 7(1) (a). Held: She was not, for a
marriage may be consummated although artificial
methods of contraception are used.
(b) Wilful refusal to consummate by the respondent to the petition. A decree will only be
granted under this ground if an examination of the whole history of the marriage
reveals ‘a settled and definite decision’ on the part of the respondent, come to without
“just excuse”. A husband it has been held for example must take appropriate tact,
persuasion and encouragement and his wife will not be guilty if he has failed to do so.
The wilful refusal of the respondent must be proved before a decree will be granted
on this ground.
Ford vs. Ford (1987) Fam. Law 232.

lOMoARcPSD|5065845
H and W had a sexual relationship until H was sent to prison.

They married while he was in prison, but he refused to
consummate the marriage at the time and later said he did not
want to live with W even after he was released. W's petition for
a decree of nullity was allowed: H's refusal to consummate the
marriage in prison was not a "wilful refusal", but his clear
determination never to do so was sufficient.
Horton vs. Horton (1947) 2 All ER 871.
The couple were Roman Catholics who had married during the
war. They failed to consummate the marriage at first, and were
then separated. H now sought to have the marriage annulled on
the basis of W's refusal to consummate the marriage. Held: the
petition failed on the facts: a "wilful refusal" is an unjustified,
settled and definite decision and taking into account the whole
history of the marriage.
(c) Lack of consent due to duress, mistake, unsoundness of the mind or otherwise. This is
common in arranged marriages and is a ground for nullifying such a marriage.
(d) Unsoundness of the mind-mental disorder
(e) Sexually transmitted disease at the time of the marriage the respondent was suffering
from a venereal disease in a communicable form. Petitioner must have been unaware
of this fact at the time of the marriage and must bring the petition within 3 years.
(f) Pregnant by another at the time of the marriage.
3.5 BARS TO A DECREE WHERE MARRIAGE IS VOIDABLE
S30 –if the above grounds exist the petitioner will usually be entitled to a decree. However
the petition may fail if one of the 3 bars under the MCA is established;
(a) Approbation – the decree will be denied if the court believes that the petitioner with
the knowledge that it was open to him to have the marriage avoided, so conducted
himself in relation to the respondent a to lead the respondent reasonably to believe
that he would not seek to do so and in addition, that it would be unjust to the
respondent to grant the decree.

lOMoARcPSD|5065845
(b) It is unjust to do so –s 30 (2) 3 years bar if proceedings not instituted within 3 years of
the marriage.
S 30(3) ignorance of facts alleged
3.6 EFFECTS OF A DECREE
At one time a decree of nullity operated retrospectively thus a voidable marriage and a void
marriage had no legal consequences in the eyes of the law, the parties were not and had never
been any more than cohabitants. However over the years the law has undergone reform in an
attempt to meet the hardship that was sometimes caused by the common law rules.
Prior to 1971,the law relating to voidable marriage was that the marriage was valid until
annulment, but once a decree absolute had been pronounced, they were deemed never to have
been married. In 1971 this rule was abolished as being inconvenient, uncertain and
anomalous. A voidable marriage that is annulled is now treated as if it had existed up to the
date of the decree.
S33 of MCA
S33 (2) status of children of voidable marriage
3.7 CONCLUSION
The law of nullity is important for an understanding of the nature of marriage since it defines
who can legally enter into such a relationship. However it remains to be seen whether the
doctrine is relevant today especially that most marriages are ended by divorce and not decrees
of nullity.
FURTHER READING
CASES
 The People vs. Nkhoma (1978) ZR 4 HC
 D vs. D (1982) 12 Fam. Law Reports 101.

lOMoARcPSD|5065845
 Patridge vs. Patridge (1985) ZR 223 HC
UNIT 4: EFFECTS OF MARRIAGE
4.0 INTRODUCTION
The principle effect of marriage under the common law was that it fused the legal
personalities of husband and wife into one. Blackstone had this to say on the doctrine of unity
of husband and wife:
“by marriage the husband and wife are one person in law; that is, the
very being or legal existence of the woman is suspended during the
marriage, or at least is incorporated and consolidated into that of the
husband; under whose wing, protection and cover, she performs
everything; and is therefore in our law called a feme covert,femina viro

lOMoARcPSD|5065845
co-operta;is said to be under the protection and influence of her

husband, her baron or lord;and her condition during marriage is called
her coverture.Upon this principle of a union of person in husband and
wife, depend almost all the legal rights,duties,and disabilities that either
of them acquire by the marriage”.
4.1 RIGHT TO CONSORTIUM
Consortium means living together as husband and wife with all the incidents that
flow from that relationship. This means sharing the matrimonial home, but this is
not absolutely essential as the H or W may have to spend long periods away from
the me for reasons of business or other duties. Intermittent cohabitation amounts to
consortium so long as both parties retain the intention of cohabiting whenever
possible, the consortium is regarded as continuous and will come to an end only if
one or both of them lose this intention. Consortium means the sharing of a
common home and a common domestic life.
Incidents of Consortium are as follows;
1. The W’s right to H’s name –on marriage a wife assumes her H’s
surname. She is entitled to retain the name after the marriage has
terminated by either death or divorce. She also takes the designation MRS.
A man has no property in his name and as such cannot restrain the W from
using his name even after divorce.
2. The matrimonial home- duty of spouses to live together as far as their

circumstances will permit. They have to agree were the home will be.
3. Affinity – the blood relatives of one spouse become related to the other
spouse by virtue of the operation of law immediately upon the celebration
of the marriage.

lOMoARcPSD|5065845
4. Sexual intercourse – each spouse owes the other a duty to consummate the
marriage and that (with certain exceptions) the incapacity of either or the
wilful refusal of the respondent to do so will entitle the petitioner to a
decree of nullity. This mutual right to intercourse continues after marriage
has been consummated provided that it is reasonably exercised, but one
spouse is not bound to submit to the demands of the other if they are
inordinate, perverted or otherwise unreasonable, or in any case if they are
likely to lead a breakdown in health.
5. Children – any children born to the wife during the marriage are presumed
to be fathered by the husband and to be legitimate. Where this presumption
cannot be, or is rebutted, the father is the legal guardian and together with
the mother is expected to exercise parental power over the children.
6. Mutual protection – each spouse is entitled to use such force as is

reasonably necessary to protect the other from attack or other physical
harm and may lawfully kill an assailant if this is necessary and reasonable
in the circumstances.
7. Physical protection of a spouse – the legal action that one spouse may
take if the other physically ill-treats or molests her/him. The victim may
have recourse to the usual legal remedies such as assault or battery. She
may take action by preventing further violence in future by seeking a
restraining order from the courts.
4.2 LOSS OF RIGHT TO CONSORTIUM
The right may be lost in any of the following ways:
 If the spouses agree to live apart;
 Where decree of judicial separation has been made;
 When a decree nisi has been made; and
 Matrimonial misconduct will deprive the spouse of the right to the other’s
consortium.

lOMoARcPSD|5065845
4.3 BREACH OF DUTY TO COHABITATE
The breach of s duty to cohabitate is not enforceable but a breach may lead to other
consequences. If there is a total breach, the spouse in breach will be in dissertion,
and this will in turn enable the other to petition for divorce or judicial separation at
the end of two years.
If there is only a partial breach of the mutual duties that the spouses owe each
other, the innocent party may petition for divorce, judicial separation or nullity if
the other spouse behaves in such a way that the other spouse cannot reasonably be
expected to live with him or wilful refusal to consummate the marriage.
4.4 REMEDIES FOR INTERFERENCE WITH THE RIGHT TO

CONSORTIUM
A Husband or wife can bring an action for breach of contract or tort against a third
party for damages for loss of consortium. For example if as a result of a breach of
a contractual duty owed by the defendant to the plaintiff the latter losses the
consortium of his spouse, he may recover for this loss by way of damages for
breach of contract provided that it was likely to result from breach and therefore
not too remote. In Jackson v Watson & son, where the plaintiff’s wife died from
food poisoning as a result of eating salmon which the defendant had sold to the
plaintiff, the court held that he could recover for the loss of his wife’s services.
Another instance is where a husband loses his wife’s consortium as a result of a

tort committed against her; he has a separate cause of action against the tortfeasor
for loss of consortium. For instance if as a result of X’s negligence W is injured
and has to spend a considerable time in hospital, X may be sued not only by W for
her personal injuries but also by H for the loss of her consortium.
Read - Howard and Company (Africa) Ltd vs. Behrens (1972) ZR 171 (HC).

lOMoARcPSD|5065845
UNIT 5 - BREAKDOWN /TERMINATION OF MARRIAGE
5.0 DEATH AND PRESUMPTION OF DEATH
The death of either party ipso facto brings the marriage to an end. Under English law if a
spouse disappeared under circumstances that led to a reasonable inference that she was dead,
although the death could not be proved, H could remarry without committing the offence of
bigamy and the second marriage would be presumptively valid. But if it could be shown that
in fact W was alive when H remarried then the second marriage would be void. The MCA of
1973 permits the high court to make a decree of presumption of death and dissolution of
marriage if it is satisfied that there are reasonable grounds for supposing that the petitioners’
wife is dead. This presumption may be raised after 7 years’ absence and the test is the
petitioner’s belief.

lOMoARcPSD|5065845
A decree nisi is to be rescinded if the other party is found to be alive. However, if it has been
made absolute then the marriage is dissolved even if the other spouse reappears.
5.1 History of Divorce Law
English law followed the canon law of the Catholic Church in not permitting divorce in the
sense in which it is understood today. The ecclesiastical courts were able to grant annulments
as well as divorces a Mensa et thoro. (This is a separation of the parties by law and not
dissolution of the marriage. It may be granted for extreme cruelty or desertion of the W by
H). This freed the parties from the obligation to cohabit but prohibited remarriage. By the 18 th
century a procedure for divorce by a private act of parliament was developed and it did allow
the parties to remarry. This was however not very popular as it was too expensive and it was
popularly estimated to cost at least a thousand pounds and was time consuming. It became
apparent that reform was necessary in the area of divorce law.
5.1.2 The Matrimonial Offence 1857 – 1969
The Matrimonial Causes Act 1857 was passed following recommendation from the royal
commission which had been appointed in 1850 to enquire into the law relating to matrimonial
offences. The 1857 Act created the court for divorce and deal with matrimonial causes. It had
the power to dissolve marriages as well as annulments and judicial separations. This power
was however limited. A petitioner had to prove that the respondent had committed adultery
and that the petitioner was himself free of any matrimonial guilt and that there was no
collusion between the parties. A wife had to further show that the H had aggravated the
adultery by cruelty or two years’ desertion or had committed incest, rape or sodomy. Divorce
by judicial process was thus permitted but only an injured and legally guiltless spouse could
petition.

lOMoARcPSD|5065845
Modifications were made to the law over the years. The most significant being the Divorce
Reform Act of 1969. This act was a result of a compromise between two groups with
opposing views. The church on the one hand proposed that an inquiry should be held in every
case to ascertain the breakdown of the marriage whereas the group led by the Lord
Chancellor suggested that a good divorce law should seek to buttress rather than undermine
the stability of marriage and that when regrettably, a marriage has irretrievably broken down,
to enable the empty legal shell to be destroyed with maximum fairness, and the minimum
bitterness, distress and humiliation. The principle they agreed upon was that breakdown
should be the sole ground for divorce. It remains the law today. It should be noted that a
divorce cannot be granted on this ground alone. Breakdown has to be inferred from certain
facts. Thus we have five facts from which a breakdown of marriage can be inferred. These
reforms were subsequently incorporated in the Matrimonial Causes Act of 1973 (‘MCA’)
which forms the current law of divorce. In Zambia the passing of the matrimonial causes Act
No 20 of 2007 now entails that we have our own law on matrimonial causes.
5.2 GROUND FOR DIVORCE
The message in the MCA 2007 is that there is only one ground for divorce that is the
irretrievable breakdown of the marriage. This statement is somewhat misleading. In practice
relationship breakdown, without proof of one of the five facts, will not be sufficient to
terminate the legal relationship.
Buffery vs. Buffery (1988) 2 F.L.R 365 CA
a failure by the W to show that the marriage had irretrievably

broken down by establishing one of the five facts meant that
she cannot succeed on her petition notwithstanding the fact
that they had grown apart, no longer had anything in common
and could not communicate.

lOMoARcPSD|5065845
Before we look at the five facts let us look at the period within which one can bring a petition
for divorce. In the past a petition for divorce could not be brought within the first three years
of the marriage. This has since been changed to one year. The MCA 2007 provides in s 6 that
no petition for divorce shall be presented to the court before the expiration of the period of
one year from the date of the marriage. There other legal remedies that can be used to provide
redress during this period such as judicial separation and a decree of nullity depending on the
ground a petitioner wants to rely on.
5.2.1 THE FIVE FACTS
The five facts from which irretrievable breakdown of marriage can be inferred are set out in
s9 (1) of the MCA 2007 and they are as follows:
a. ADULTERY (S9(1) (A) MCA 2007
In order to succeed on this fact, the petitioner must prove that the respondent committed
adultery and that there was or there must have been sexual intercourse between the
respondent and another person who might be cited, and show that because of the adultery she
finds it intolerable to live with the respondent. However, it is not necessary that the petitioner
should find the respondent’s adultery intolerable. Both of these elements must be proved
together and not separately. An isolated act of adultery will not be sufficient.
If one spouse knows that the other has committed adultery and has continued to live with him
or her thereafter for six months or more, a divorce petition cannot be based on this fact –
adultery. If they have lived together for less than six months after the adultery, the fact that
they have done so is to be disregarded in determining whether the petitioner finds it
intolerable to live with the respondent. The test used to determine whether or not the
respondent finds it intolerable to live with the petitioner is subjective and a question of fact.
In Sikazwe vs. Sikazwe (1983) HP/D 78,
Caroline Sikazwe petitioned for divorce on the ground that the

marriage had irretrievably broken down on account of the

lOMoARcPSD|5065845
respondent’s adultery with Jennifer Nkonde, co-respondent and she

found it intolerable to live with him.
A woman who has been raped has not committed adultery because the relationship
complained of must be voluntary.
Goodrich vs. Goodrich (1971) 2 ALL ER 1340
H petitioned for divorce on the grounds of W's adultery and was

granted a decree nisi. The judge cited with approval a passage in
Rayden on Divorce that it is what "the petitioner finds" intolerable
that is the primary consideration. But it is not enough, he suggested,
for a petitioner simply to say "I find it intolerable": some reason,
explanation or justification for this assertion should be given so that
the court can satisfy itself of the truth of the petition.
b. RESPONDENT’S BEHAVIOUR – s 9(1) (b)
The petitioner must under this fact establish that the marriage has broken down irretrievably
by showing that the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with him. The courts have refrained from any attempt to define
behaviour. Each case is looked at on its own merits. The issue to be determined is not the
quality of the respondents’ behaviour but the effect of that conduct on the petitioner. Thus
trivial issues such as forgetting the W’ s birthday, wedding anniversary, failing to give her
flowers on the birth of the child or refusing to take her to the cinema will be disregarded in
most cases.
S9(1) (b) of the MCA 2007 states that the petition can ask the court to infer that there is a
breakdown on proof of the fact that the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with him.
The question is not whether the behaviour is unreasonable but whether it is unreasonable to
expect the petitioner to continue to live with the respondent in the circumstances. The test
used is objective since the question to be answered is ‘can the petitioner reasonably be
expected’ to live with the respondent. This question is answered by the court after assessing
the history of the marriage and their relationship.
Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766
H was 56 and W was 24 when they married; H was self-opinionated

and treated W not as a wife but as a rather stupid child. He criticised

lOMoARcPSD|5065845
her behaviour, her way of life, her friends, her cooking and even her
dancing; he complained of her leaving her underclothes soaking
overnight in the sink, even though he did the same himself, and he
became angry when she offered sherry to a photographer who visited
the house while he was out. After a violent argument, W left the
home and successfully petitioned for divorce under s.1 (2) (b) .
Mahande vs. Mahande (1976) ZR 287
The petitioner had an illegitimate child before her marriage to

the respondent. The petitioner only disclosed this after two
years of the marriage. The respondent forgave her and accepted
the child and maintained it. The petitioner petitioned for divorce
citing unreasonable behaviour of the respondent. The petitioner
testified that she was once locked outside the gate, respondent
was suspicious of her movements among others and the court
granted a decree nisi pending a decree absolute to end the
marriage.
O'Neill v O'Neill [1975] 3 All ER 289, CA
H embarked on major do-it-yourself repairs to the matrimonial home;

he removed floorboards, mixed cement in the living room, and
removed the lavatory door for some eight months. W was
consequently embarrassed to have visitors, and she and their 14-year-
old daughter D found it embarrassing to use the lavatory. After two
years, W and D moved out, and W petitioned for divorce on the
grounds of H's behaviour; H's reply (to W's solicitors) contained
allegations that the children were by some other man. The Court of
Appeal, reversing the trial judge, granted a decree nisi; the reply alone
showed how badly the marriage had broken down.
Pheasant v Pheasant [1972] 1 All ER 587, Ormrod J
H petitioned for divorce under s.1 (2)(b). He did not seek to

establish any serious criticism of W's conduct or behaviour, but
claimed she had not been able to give him the spontaneous,
demonstrative affection he craved and that it was impossible for
him to live with W any longer. Dismissing H's petition, the judge
said there was nothing in W's behaviour that could be regarded
as a breach on her part of any of the obligations of the married
state or as effectively contributing to the break-up of the
marriage.

lOMoARcPSD|5065845
For illustrations as to what has been held as constituting unreasonable behaviour, the
following cases are useful;
 Ash v Ash (1972) 1 All.E.R. 582.
 Mulundika v Mulundika (1991) ZMHC 13
c. DESERTION- S9 (1) (c) MCA
Desertion is one of the traditional matrimonial offences that have survived the reforms
unaltered. The respondent leaves the matrimonial home voluntarily and without reasonable
cause with the intention of permanently ending cohabitation. Desertion for a continuous
period of 2 years is sufficient to prove irretrievable breakdown of marriage. There are four
elements that must be present:
1. De facto separation of the parties for at least 2 years.

2. The intention on the part of the spouse in desertion to remain separated permanently.
3. Absence of consent on the part of the deserted spouse.
4. Absence of any reasonable cause for withdrawing from cohabitation on the part of the
deserting spouse.
Constructive desertion – respondent behaves in such a way that petitioner is compelled to

leave home against his or her wishes under similar conditions. The MCA 2007 makes
provision under s14. The 2 years period applies in this case.
Pizey v Pizey [1961] 2 All ER 658
After admitting an act of adultery, W left home and went to live with
her mother. H did not object to her going, but over the next two years
they corresponded by letter and on several occasions H visited W and
they had sex together. H subsequently petitioned for divorce on the
grounds of W's desertion (having effectively condoned the adultery),
but his petition failed: the frequent visits amounted to a course of
conduct that showed the separation too had been condoned.
Hopes v Hopes (1948) 2 ALL ER 920
The husband petitioned for divorce claiming that desertion

began more than 3 years before his presentation of the petition
when the wife moved into a separate bedroom no marital

lOMoARcPSD|5065845
intercourse, frequent quarrels between them and she stopped

mending or washing his clothes. There was no separate cooking
for him although he had meals with members of his family
prepared by the wife in the dining room. Held, that there was no
de facto separation and therefore no desertion of the husband
by the wife. They had to maintain two separate households for
petition to succeed.
d. LIVING APART – S9 (1) (d) AND (e) MCA 2007
This involves the parties living apart for a specified period of time. The first type of living
apart requires a 2-year period and the respondent must consent to the decree being granted.
This is sometimes called divorce by consent. The consent may be withdrawn at any time
before the pronouncement of the decree. The other fact is that the parties have lived apart for
a period of 5 years preceding the presentation of the petition –s 9(1) (e).
Living apart involves both physical and mental elements. As far as physical separation is
concerned the courts have adopted the old law of desertion and have held that what is in issue
is separation from a state of affairs rather than from a place. The question to be asked is
whether there is any community of life between the parties. For instance, if H & W share the
same living room, eat at the same table, or watch TV together, they are still regarded as living
in the same household. The households can be established in the same house where the
parties establish individual living arrangements. It is immaterial that they do this for the sake
of the children. If they are living under the same roof, they will only be said to be living apart
if they maintain two separate households. They will also be regarded as living apart if
consortium comes to an end.
Fuller vs. Fuller (1973) 2 ALL ER 650
H and W separated after 22 years of marriage; W went to live with P

and called herself Mrs P. Four years later H became seriously ill and
went to live with P and W; W cooked H's meals and did his laundry,
but continued to sleep with P; H paid £7 per week for his board and
lodging. W subsequently petitioned for divorce on the basis of s.1 (2)
(e), and the Court of Appeal allowed her appeal against the judge's
dismissal of her petition. Lord Denning MR said H and W were not
"living together as husband and wife", and that was the meaning to
be ascribed to the section.
Mouncer v Mouncer (1972) 1 ALL ER 289

lOMoARcPSD|5065845
The H and W were on very bad terms and resorted to sleeping in

separate rooms. However, they continued to take their meals,
cooked by the W, together with either one or both of the
children and shared cleaning the house, making no distinction
one part of the house and the other. A subsequent petition for
divorce on account of living apart failed because a rejection of a
normal physical relationship coupled with an absence of normal
affection was not sufficient to amount to living apart within the
law.
Read also B vs. B (1977) ZR 159 (HC)
The other fact is that they have lived apart for a continuous period of 5 years- s9(1) (b) (e).
The respondent can oppose a petition under 5 years’ separation and if the court is of the
opinion that the dissolution of the marriage will result in grave financial difficulties or other
hardship to the respondent and that in all the circumstances including the conduct of the
parties and the interests of the parties and any child or children of the marriage it would be
wrong to dissolve the marriage.
The court cannot make the decree absolute until it is satisfied that the petitioner should not be
required to make financial provision for the respondent or that financial provision which has
been made is just and fair. It should be noted that the hardship must result from the divorce
not the breakdown of the marriage.

lOMoARcPSD|5065845
UNIT 6 - JUDICIAL SEPARATION
There are five grounds on which a petition for judicial separation can be based. These are the
same five facts that are used to show irretrievable breakdown of a marriage. There is no need
to show irretrievable breakdown of the marriage. A petition for judicial separation can be
made any time after the marriage. There is no restriction as to time. A finding of fact on a
judicial separation can be used as proof of facts on a subsequent divorce.
In judicial separation proceedings the partner will obtain from the court a decree of judicial
separation and this means a legal separation of the partners although they will still be married
but not have to live together whereas in divorce the decree nisi followed by the decree
absolute is required before the proceedings are final.
A decree of judicial separation will only be granted, as with a divorce, on the grounds that the
marriage has irretrievably broken down. The partner must prove; adultery of the other
partner; unreasonable behaviour of the other partner; desertion by the other partner after two
years; separation with consent after two years; and separation without consent after five
years. As with nullity, judicial separation can be granted within 12 months of the marriage.

lOMoARcPSD|5065845
PART II: PARENTS AND CHILDREN

UNIT 7 - PARENTS AND CHILDREN
The idea that children have rights - and rights against their parents too - is a fairly recent one.
The United Nations adopted its Convention on the Rights of the Child in 1989, and the
Convention was ratified by Zambia in 1991. It requires states party to it to treat the interests
of children as a primary consideration in all actions concerning them, but reinforces the idea
of family as the fundamental social unit for promoting children's well-being. English law has
never treated parents' authority over their children as absolute, but some cases from the last
century and this show how attitudes have changed.
The Convention on the Rights of the Child is the first legally binding international instrument
to incorporate the full range of human rights—civil, cultural, economic, political and social
rights. In 1989, world leaders decided that children needed a special convention just for them
because people under 18 years old often need special care and protection that adults do not.
The leaders also wanted to make sure that the world recognized that children have human
rights too.

lOMoARcPSD|5065845
The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out
the basic human rights that children everywhere have: the right to survival; to develop to the
fullest; to protection from harmful influences, abuse and exploitation; and to participate fully
in family, cultural and social life. The four core principles of the Convention are non-
discrimination; devotion to the best interests of the child; the right to life, survival and
development; and respect for the views of the child. Every right spelled out in the Convention
is inherent to the human dignity and harmonious development of every child. The Convention
protects children's rights by setting standards in health care; education; and legal, civil and
social services.
7.1 WHO ARE PARENTS OF A CHILD?
The relationships between children and parents are complex. In different contexts, the word
"parent" can include biological parents (married or unmarried), step-parents, adoptive
parents, foster-parents, godparents and parents-in-law. It may even extend to the court in
cases of wardship and to the local authority where a child is "in care". In the majority of
cases, even today, a child is born as the result of sexual intercourse between a husband and
wife, who thereby stand in a parental relationship to the child, both biologically and legally,
without any further formality.
Where a child is born to a married woman, or to a woman recently divorced or widowed,

there is a common law presumption that it is the natural child of that woman and her (former)
husband. The presumption is not absolute, however, and may be rebutted by the results of
blood or DNA tests, by proof of the wife's adultery, or by evidence that husband and wife did
not have access to one another during the period in which the child must reasonably have
been conceived.
7.2 MEANING OF CHILD

lOMoARcPSD|5065845
The CRC defines a child as anyone under the age of 18. There is no clear cut definition of a
child in Zambia. For instance, in the Juveniles Act a child is any person who has not attained
the age of 16 whereas the constitution defines a young person as any person under the age of
15 years. The Juveniles Act then further defines a juvenile as any person who has not attained
the age of 19 and includes a child and young person. Such persons must be protected from
all forms of physical or mental ill-treatment, neglect, cruelty and exploitation – article 24.
There is need to harmonise these definitions.
Full legal capacity means that once a young person turns 18, generally he or she is able to
carry out all legal activities such as:
 Voting
 Entering into a valid contract
 Marriage
 Buying alcohol
 Obtaining a car licence
Children's rights
There are extensive rights set out in the UN Convention on the Rights of the Child, which
include:
 The right to be protected from discrimination or punishment on the basis of activities

or the beliefs of the child's family.
 The inherent right to life.
 The right to a name and nationality.
 The right to not be separated from their parents unless such a separation is in the best
interest of the child.
 The right to express views freely in relation to anything affecting the child where they
are capable of forming those views, and the child's views to be given due weight.
 The right to freedom of association.

lOMoARcPSD|5065845
 The right to be protected from all forms of physical or mental violence or injury.
7.3 PARENTAL RESPONSIBILITY
This phrase describes all the rights, duties, powers, authority and responsibility which by law
a parent of the child has in relation to a child and his property (Children’s Act 1989 UK
legislation). None of the rights is absolute - they must at least be read subject to the child's
own rights, and parental rights and responsibilities tend to decrease gradually as the child gets
older. Parental responsibility devolves automatically upon the child's natural parents if they
are married to one another or upon the child's mother if she is single. (The rebuttable
presumption that a married mother's husband is the child's father gives parental responsibility
to such a husband more or less automatically.) The father of a non-marital child can acquire
parental responsibility by agreement with the mother or by a court order to that effect, but
does not have it automatically. Some people argue that this is unnecessarily discriminatory
and that fathers (married or not) should have the same rights and responsibilities as mothers,
but the counter-argument is that any such rule would give parental responsibility to rapists
and casual sexual partners.
Those who do not automatically have parental responsibility for a child can acquire it by
court order (e.g. adoption order, residence order, care order or parental responsibility order
simpliciter), or by becoming the child's guardian on the death of the surviving parent (see
above). More than one person (and more than one married couple) can have parental
responsibility for the same child, and one person's parental responsibility does not
automatically end when another person's begins. When a child is taken into the care of the
local authority, for example, the local authority acquires parental responsibility but the
parental responsibility of the natural parents continues. Parental responsibility ends only with
the death of the child or the parent, the child's reaching age 18, or by virtue of a court order.
The following list denotes what are generally accepted as parental responsibilities;
 Duty to maintain - a duty that carries on, of course, even when the child no longer
resides with that parent, irrespective of the other parent's circumstances.
 Education - including choice of schools, although in the state system many parents
find that there is no such thing as 'parental choice', as the child will usually go to the
nearest appropriate school.

lOMoARcPSD|5065845
 Religious upbringing - obviously, only usually an issue when the parents do not share
the same religious faith.
 Medical treatment - although where emergency treatment is required, it is submitted

that most parents would not expect this to be withheld until the other parent is
consulted.
 Choice of surname - can only be changed with the agreement of the other parent or by
a court order, where the other parent has parental responsibility.
 Removal from the jurisdiction - again, agreement of other parent with parental
responsibility required, or court order.
 Consent to adoption - a child can only be adopted with the consent of any parent
having parental responsibility, or if the court dispenses with that consent.
Re C & V (Parental responsibility) [1998] 1 FLR 392, CA
Children C and V had the same mother M but different fathers.

V's father F applied for a parental responsibility order in respect
of V, and contact with both children. M opposed the orders, and
since V had a long-term medical condition requiring M's care,
the judge refused both orders. Allowing F's appeal in part and
granting the parental responsibility order, Ward LJ said a
parental responsibility order is independent of contact: it simply
confers on a natural father the status a married father has
already, and any excesses are better controlled by s.8 orders.
Where possible, the law should readily confer this status on an
absent father as a mark of approval for his willingness to take
responsibility for his child, and should not refuse it unless the
father's reasons are demonstrably improper.
To what extent should a parent discipline a child?
A v United Kingdom [1998] 2 FLR 959, Times 1/10/98, ECHR
An 8-year-old boy A, admittedly very badly behaved, was caned

by his stepfather S on numerous occasions. S was acquitted of
assault causing actual bodily harm, but the European Court of
Human Rights said the caning (having reached the necessary
level of severity) violated A's right not to be subjected to
inhuman or degrading punishment.

lOMoARcPSD|5065845
UNIT 8 – LEGITIMACY
8.0 INTRODUCTION
About one-third of children are born to parents who are not married. The disadvantages of
illegitimacy have been almost entirely eliminated by legislation over the past 25 years or so:
even the word "illegitimate" is now frowned upon, and children born outside marriage are
described (when such description is necessary) as non-marital or extra-marital children.
Legitimacy refers to the status of a child at birth. Children who are born in wedlock are
legitimate and those born outside marriage are known as extra-marital children. There is a
presumption in law that a child born in marriage is legitimate and the husband is deemed to
be the father unless the wife proves that in fact he is not. There are various scientific ways of
proving paternity but the most conclusive is a DNA test. The issue of paternity in a marriage
may arise especially if a child is born at an unexpected time.

lOMoARcPSD|5065845
Extra marital children these are children born to man or a woman who is married to someone
else or an unmarried woman with a man married to someone else. The birth of such a child
has to be registered and both parents sign with father acknowledging parentage in writing
before the registrar general.
8.1 RIGHTS OF ILLEGITIMATE CHILDREN
Illegitimate children enjoy the same rights as those children born in marriage. Both parents
have a duty to maintain the child especially in cases where paternity is not in issue.
1. Right to succession- in terms of s3(2) of the legitimacy Act states that the legitimation
of a person under the Act does not enable him or his spouse, children or remote issue
to take an interest in real or personal property.
However this section has been overtaken by events. The intestate Succession Act
states that children whether legitimate or illegitimate are entitled to inherit from the
parent –s3.
In terms of s7 – a legitimated person shall be entitled to take any interest in real or

personal property only after the date of legitimation.
An illegitimate child or his issue has a right to succession at the death of his mother –
s13.
A legitimated person shall have the same rights and shall be under the same obligations with
respect to maintenance and support as if he had been born legitimate.
Void marriage -a child whether born before or after the appointed date, shall be treated as a
legitimate child of his parents if at the time of his conception the parents reasonably believed
that the marriage was valid- s4.
Voidable marriage – a child of a voidable marriage shall be deemed to be legitimate at the

time of the annulment s5.
There is need to harmonise this law with the law of maintenance and inheritance laws. The
status of illegitimate children has been changed they are no longer called basterds.

lOMoARcPSD|5065845
UNIT 9: ADOPTION
9.0 INTRODUCTION
The law makes provision for how children who are orphaned or whose parents are unable or
unwilling to bring them up can be taken care of. These provisions take various forms: the
child may be adopted and thereby severing ties with the natural parents and the child is
placed in the position of a legitimate child of the adoptive parents. A parent may appoint a
guardian to act after his death or the court may appoint guardians or custodians. The legal tie
between the child and its parent remains but the guardian has custody of the child. In some
jurisdictions a child may be taken into care by a local authority. And it may also be placed
with foster parents who exercise care and control on behalf of the parent or local authority but
do not have the remaining rights and powers attached to custody.
If a child’s parents die or abandon it or it is brought up by someone else, the later is said to
have adopted the child especially if he is a stranger in blood. This only gives the ‘adoptive
parent’ de facto control and the disadvantage is that since the relationship is not strictly

lOMoARcPSD|5065845
recognised by the law at all the legal position of the person assuming control is precarious.
For instance, the child’s parents or legally appointed guardians may try at any time to assert
their legal powers over the child. Thus there is a constant danger of losing the child. A claim
for control over the child may however be defeated by application of the principle ‘best
interests of the child. This situation is what is known as foster parenthood and is often
mistaken for adoption. Adoption and foster parenthood are different as the former requires a
court order whereas the latter does not and the foster parent only acquires de facto control of
the child.
The law provides that anyone wishing to bring up someone else’s child as his own must apply
for an adoption order from a court of competent jurisdiction and the effect of such an
application is that it vests unto the adoptive parent(s) parental rights and duties relating to the
child. The majority of adoption orders are made in respect of illegitimate children who are
usually placed for adoption immediately after birth. Some children are left in the care of
adoption societies who then have to make arrangements for adoption. In some cases, parents
make arrangements with the proposed adopters personally or through a private individual.
Adoption is therefore a process whereby parental responsibility is by court order taken from
the natural parents to the adopters.
9.1 MAKING OF ADOPTION ORDERS
In terms of s3 of the Adoption Act, the court may on an application made by any of the
following; two spouses jointly; mother; father either alone or jointly with his or her spouse,
make an adoption order authorising the applicant(s) to adopt the infant. An infant is a person
who has not attained the age of 21 years but does not include a person who is or has been
married. A child who has been adopted before may be readopted-s9.
The Act makes restrictions on the making of adoption orders. In terms of s4 an adoption
order will only be made if the applicant or in the case of a joint application one of the
applicants: has attained the age of 25 years and is 21 years older than the infant; has attained
the age of 21 years and is a relative of the infant; or is the mother or father of the infant.
Another restriction is that a female infant shall not be adopted by a sole male applicant unless
the court is satisfied that there are special circumstances which justify an exceptional measure

lOMoARcPSD|5065845
of making the adoption order. This provision probably seeks to prevent the possible sexual
corruption of a child.
9.2 REQUIREMENT FOR CONSENT – S4 (4)
An adoption order shall only be made in a case where consent has been obtained from every
person or body of persons who is a parent or guardian of the infant or who is liable by virtue
of a court order or agreement to contribute to the maintenance of such infant. For instance, in
the case of an extra-marital child whose father supports it. The mother alone cannot give
consent to the adoption and if the father opposes the adoption the court will consider the best
interests of the child first and the father will only be accorded special consideration and no
more. In some exceptional cases the court may dispense with consent in a case where the
child has been abandoned, neglected or is ill-treated by the parent or guardian. Also in the
case of a person liable by court order or agreement to maintain the child and he has neglected
or refused to contribute- s5. In a case where the person required to give consent cannot be
found or has unreasonably withheld the consent. This requirement ensures that parents’ rights
are not arbitrarily destroyed.
9.3 PROCEDURE FOR THE MAKING OF ADOPTION ORDERS – S4 (5)
An adoption order shall not be made unless the applicant and the infant reside in Zambia and
the infant has been in the care and possession of the applicant for a consecutive period of at
least 3 months immediately preceding the date of the order. The purpose of this requirement
is to ensure that the adopter is a suitable person to bring the child up. The applicant must at
least 3 months before the date of the order notify the commission of his intention to apply for
an adoption order in respect of the infant. This serves to ensure proper supervision of children
placed for adoption.
9.4 FUNCTIONS OF THE COURT- S7
An adoption order will be made by a court and it must be satisfied of the following before it
makes an order.

lOMoARcPSD|5065845
 That all the persons whose consent is required have given it and understand the nature
and effects of an adoption order; and
 That the order if made will be for the child’s welfare;
In terms of s10 of the Act the high court has jurisdiction to make adoption orders though at
the option of the applicant and subject to any such rules any subordinate court of the first
class within the jurisdiction of which either the infant or applicant resides at the date of the
adoption order.
The court may make an interim adoption order to last for not more than two years, the effect
of which is to give custody of the child to the applicant subject to any conditions imposed by
the court as regards its maintenance, education and supervision of the welfare of the infant
and otherwise as the court may think – s8.
9.4 EFFECT OF ADOPTION ORDERS – S14
The effect of an adoption order is to establish the legal relationship of parent and legitimate
child and adopter and adopted child. The effect is twofold: the legal rights and duties flowing
from the relationship between the child and his natural parents automatically cease and these
rights and duties then vest into the adoptive parents as though the child had been born to him
or them in lawful wedlock.
Read this case: In the matter of the adoption of children act (Cap26:01) and in the
matter of CJ (a female infant) of c/o post office box 30871, chichiri, Blantyre 3.
(Available at www.saflii.org ).
Madonna filed a petition before the Malawi high court to adopt

an infant, CJ. The issue that arose was that of residence. The
judge observed that the applicant was not a resident in terms of
the Malawi adoption act (similar to the provision in our Act). The
adoption was denied on this basis. On appeal, the Supreme
Court granted the adoption because the welfare of the infant CJ
to be brought up in a loving and secure environment was more
paramount.
9.5 CHARACTERISTICS OF ADOPTION

lOMoARcPSD|5065845
 An adoption order is permanent and irrevocable other orders dealing with children can
be varied.
 Adoption affects legal status of a child e. g citizenship and succession rights
 Adoption severs the legal family ties between the child and birth parents and their
relatives. Parents no longer have standing even to apply for contact although they
could apply to court for contact with the child.
9.6 THE LEGAL CONSEQUENCES OF ADOPTION
Adoption extinguishes the parental responsibility of birth parents and vests it into the
adopters and indeed the parental status. The adoptive parents do not merely care for the child
but become, for all intents and purposes the child’s parents. An adoption order transfers a
child from one family to another
UNIT 10: CUSTODY/GUARDIANSHIP
9.2 CUSTODY AND ACCESS
When a marriage has come to an end there are several issues (often contentious) that the
parties have to settle before they start living separate lives. One such contentious issue is the
custody of children of the family. In most cases parties never agree and as such the issue is
taken to court for determination. The court hearing a custody application will only concern
itself with the welfare of the child as the paramount consideration and not the superiority of
the claim from either parent or that he or she has the means to maintain the child. The court in
determining the best interest of the child will among other things take into account the
following:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his
age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;


lOMoARcPSD|5065845
(f) how capable each of his parents, and any other person in relation to whom the court
considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.[1]
The risk of future corruption of the child especially if the marriage ended as a result of an act
of adultery; the effect of separating two young children; and the courts believe that mothers
are better placed to have custody of young child. There is no hard and fast rule about these
factors as each case is determined on its own merits.
Courts will usually give custody to one of the parents whom they think is better placed to
safeguard the interests of the child and access is given to the other party and he or she shall
have a say in the upbringing of the child. The courts will order the parent who has the means
to provide maintenance and adequate accommodation for the child if he or she is not given
custody. In some cases especially where there is less acrimony between the spouses, the
courts will grant joint custody of the child.
The Affiliation and Maintenance of children Act provides under s15 that in making an order
for maintenance the court shall have the powers to make any other orders it thinks fit with
respect to custody and access and that such an order shall have effect only when the
maintenance order is in force. The court may in certain exceptional cases grant custody of a
child to any other person as custodian of the child if it is of the view that either parent is not a
fit and proper person to have custody, or where both are deceased or of unsound mind. An
application for custodianship may be made by the minister for community development or
the mother or father of the child.
9.3 Declaration of Unfitness for custody
When a court makes an affiliation order, grants or makes absolute a decree of divorce, or
grants a decree of judicial separation, it may include in the order or decree that either party to
the proceedings is unfit to have custody of the child.
9.4 Guardianship
The term guardian includes a parent strictly speaking because parents are at common law
regarded as guardians. In common parlance however, the two are distinct for the rights and
duties of the parent arise automatically and naturally on the birth of the child whilst the
guardian voluntarily places himself in loco parentis to the child and his rights and duties flow

lOMoARcPSD|5065845
immediately from this act. Once a guardian has been appointed lawfully, most of the rights
and duties which the parent has vest in him.
9.4.1 Appointment of Guardian
Guardians are either appointed by the parent or court. A mother or father may by deed or will
appoint one or more guardians for their children. A valid appointment must be in writing and
signed by the person making it. This is one of the rights and duties which parents by law have
in relation to the child. A parent who has no custody of the child loses the power to appoint a
guardian. No guardian may be appointed for any child who has reached the age of majority.
The appointment of a guardian takes effect upon the death of the sole remaining parent with
parental responsibility.
The court may appoint a guardian where the parents have not done so or if the person
appointed by the parents refuses to take up guardianship.
The effect of such an appointment is to place guardians in the same legal position as parents
with parental responsibility. A guardian has a right to consent to or withdraw consent with
respect to an application for adoption.
9.3 Termination of Guardianship
Guardianship terminates under the following circumstances:
 If the child/ward dies;

 When the child marries;
 Death of the guardian;
 Court may remove a guardian –whenever the welfare of the child so demands, and
this may be due to the actual or threatened misconduct of the guardian.

lOMoARcPSD|5065845
Part III: PROPERTY AND FINANCIAL

PROVISION
UNIT 11: RIGHTS IN PROPERTY CREATED AND AFFECTED BY THE
RELATIONSHIP OF THE SPOUSES
11.1 PROPERTY ACQUIRED BEFORE AND DURING MARRIAGE
At common law husband and wife were deemed to be one and at marriage a woman’s
property vested in her husband. This rule was considered unjust and feminists and lawyers in
the nineteenth century advocated for change especially that more and more women were now
earning income of their own and there were a number of scandalous cases of husbands
impounding their wife’s earnings for the benefit of their own creditors or even mistresses. A
woman whose husband deserted her and took all the property with him had no relief. This led
to a change of the law and the general rule that the woman would retain her separate property
upon marriage was developed. The Married Women’s Property Acts were also created and
these were modified over a number of years. It therefore became a cardinal rule of English
law that marriage had no impact on the property rights of the spouses. If it becomes necessary
to ascertain the ownership of the home during marriage the parties will have to rely on the

lOMoARcPSD|5065845
rules of property law, which apply to all persons regardless of their status. Spouses have
rights to occupy the shared home but no automatic rights to a property interest in it.
In contrast to the separation of property during a marriage, the courts have the powers to
reallocate property upon divorce or dissolution of marriage. In cases where the relationship
ends as a result of death, the surviving spouse will subject to terms of the deceased’s will be
entitled to a bulk of the assets.
Knowledge of the rules relating to ownership and occupation of property is very important
for a number of reasons. First and foremost the rights over family interests such as the home
are determined almost solely by the application of the general principles of property law.
While the couple are living in harmony it may not seem to matter who owns what, but the
issue will become one of importance at time of dissolution of the marriage. The question of
who should remain in the home and who should leave comes to the fore. The court can use its
discretion to reallocate the resources of spouses.
11.2 Property Acquired by the Spouses
Spouses’ property may be divided into 2: that intended for common use and consumption in
the matrimonial home and that intended for personal use and enjoyment.
Marriage will not affect ownership of property vested in either of the spouses at the time.
This will also be true of property used by them in the matrimonial home jointly.
1. Income either from earnings or investments will prima facie remain his or her own
property. But where they pool their incomes and place them in a common fund for
example a joint bank account, they both acquire a joint interest in the whole fund.
2. Allowances for housekeeping and maintenance – any property bought from this
money was considered to be the husbands and this created an injustice which was
eventually remedied by the Married Women‘s Property Act of 1964 which took
cognisance of the fact that the savings from the allowance were as much due to
the wife’s skill and economy as a housewife as to her husbands’ earning capacity.
The Act provides that any property bought from an allowance given to a
housewife for housekeeping shall be treated as belonging to both of them in equal

lOMoARcPSD|5065845
shares unless there is an agreement to the contrary. The Act only applies if the
allowance is provided by the husband and it does not apply to a husband who does
the housekeeping.
3. Property purchased by one spouse – any property bought by one spouse with
his or her own money will presumptively belong exclusively to the purchaser.
This presumption is rebuttable. If a husband buys clothes for his wife or gives her
money to buy for herself, they become her property.
4. Gifts to spouses – whether a gift belongs to one spouse alone or to both of them
depends on the donor’s intention. This rule may apply to wedding gifts if the
marriage breaks up because the court will have to determine whether the gift is to
be given up to the spouse whose relations or friends gave them or if it is to be
divided equally between them.
11.3 Matrimonial Home
The Matrimonial home is usually the most significant single asset of the parties as well as
providing shelter for them. It is also the most problematic area if the marriage breaks down.
Two very distinct problems have been identified: that of ownership and title and that of
occupation and use. The former is concerned with the question in whom does the legal and
equitable interest vest. The latter is concerned with what rights of occupation and use does
one spouse have in property, beneficially owned by the other.
OWNERSHIP
The general rule was that property purchased by one spouse with his or her own money
presumptively belonged to that spouse to the exclusion of the other. If a husband bought a
house for example, out of his earnings, then it was his unless he transferred title to the wife.
This rule has somewhat been modified to reflect the reality that women are also earning
income and they contribute towards the purchase of the matrimonial home either directly or
indirectly. A wife as a wage earner makes contributions to the common expenses of running
the house, her contribution and effort should not be ignored. Some English judges notable

lOMoARcPSD|5065845
Lord Denning even took this debate further by suggesting that the wife should be given credit
for services rendered in kind as housekeeper or for use of her own income or savings in such
a way as to enable her husband to use his for the purchase of a house. As a consequence, the
proceeds of sale were divided equally between husband and wife whenever it was determined
that each contributed to its purchase. English law does not recognise community of property
law nor of any special rules applicable to family assets.
Pettitt vs. Pettitt (1969) 2 All ER 385
The W was the legal owner of the matrimonial Home and the H
made some improvements to the house by building a wardrobe
in it, internal decorations and built a lawn and an ornamental
well and a side wall in the garden. The issue that arose was
whether he was by virtue of the improvements entitled to a
beneficial interest in the house from the proceeds of sale. It was
held that the H was not entitled to an interest merely because
he had done something in his leisure time which husbands
normally do.
Gissing vs. Gissing (1970) 2 All ER 780
The house was purchased by the H and was financed by a

mortgage. W did not contribute anything towards the loan and
only bought furniture and other equipment for the house and
improving the lawn. The W bought clothes for herself and her
son and some extras and H paid her an allowance and paid for
all the outgoings from the home. Upon divorce on a question of
whether the W had acquired a beneficial interest in the house, it
was held that it was not possible to draw an inference that
there was any common intention that the respondent should
have any beneficial interest in the matrimonial home.
The ownership of property depends on the purchaser’ s intention at the time it is bought and
spouses at the time of purchasing a house will rarely contemplate divorce except death. In a
number of decided cases where this problem arose the courts have had to attribute intention
to them which they never had in the first place. This intention is inferred from the conduct of
the parties at the time of purchase. If the parties together embark upon the purchase of a
house with a common intention at the time that it is bought that they should both contribute

lOMoARcPSD|5065845
towards the purchase price, this will raise a resulting trust in the wife’s favour and the precise
size of her interest will depend upon the sums she actually contributes at the time of purchase
or later. This contribution may be direct or indirect. It may be by labour rather than by cash
and it must be a substantial one not things like furniture. (Gissing vs. Gissing).
The courts have been at pains in determining what amounts to an indirect contribution. If
both spouses are working for instance, and they agree that the easiest way to manage is for
the husband to service loan or mortgage and for the wife to pay household bills. The law is
very uncertain in this area.
If the purchase money for a house is from a joint account, a house bought as matrimonial
home for their common use will presumably be intended by both of them to represent the
original fund.
A spouse may acquire a beneficial interest in property notwithstanding that the legal title is
vested in the other under the following circumstances.
 Improvements made to the matrimonial home by a spouse will confer a share in

that property. This is because the value of the property may be considerably enhanced
after its purchase by extension, improvements or other work done on it.
In England the law was made more certain by the introduction of the Matrimonial
Proceedings and Property Act 1970. The Act provides that where a husband or wife makes a
substantial contribution towards the improvement of the house, he or she acquires a beneficial
interest unless there is an agreement to the contrary.
Hosking v. Michaelides (2004) All ER 147
 Death of one spouse - if marriage ends by death of one spouse and if they both had a
beneficial interest in property it may be vital to decide whether they hold as tenants in
common or as joint tenants. The implications of either must be appreciated. In joint
tenancy the whole interest will pass to the surviving spouse whereas in the other they
each hold divisible shares which can pass to a beneficiary.
OCCUPATION
The rights which a spouse has to occupy and use the furniture in a matrimonial home shall be
considered. From the outset each spouse has a right to the other’s consortium and this will

lOMoARcPSD|5065845
normally be enjoyed in the matrimonial home. Each has a right to use the house and its
furniture in whichever of them the legal title is vested. Their precise rights will however
depend in the first place on who owns the property in question. If property is vested in both
as joint tenants, they are entitled to remain in occupation of it as beneficial owners. If the title
is vested in the husband the wife can at common law claim a right of occupation not only by
virtue of her right her husband’s consortium but also by virtue of her right to be maintained
by him.
At breakdown of marriage a wife can exclude the husband from the home because of ill-
treatment of her or the children and she no longer wants to live with him.
UNIT 12: MAINTENANCE OF THE PARTY TO THE MARRIAGE
The law provides for the maintenance of children whether born in or outside marriage. Both
parents are responsible for the maintenance of their children. When this is not being done an
action for maintenance can lie in the subordinate court or high court. It can also be made in
the local court].
An application for maintenance can be made by the involved child through his or her next
friend and this could be a guardian or an older sibling. The applications can be made pursuant
to the Affiliation and Maintenance of children Act discussed hereunder.
Applications for maintenance can also be made by a divorced woman not only for her
children but also for herself. This is done when no order for maintenance has been made by
the court at the time of granting a decree of divorce. Women who are on separation from their
husbands can also apply. Maintenance orders once made by the court can be varied especially
if the parties’ circumstances have changed. The court has powers to order that earning be
attached and collected to meet the maintenance order.
AFFILIATION

lOMoARcPSD|5065845
The single mother of a non-marital child can apply to the court for an order declaring a
named person as the father of that child and the order is called an affiliation order.
The application must be made within 12 months of the birth of the child, or within 12 months
of the father paying maintenance for the child. If the father was out of the country, within 12
months of his return to Zambia – s3 of the Affiliation and maintenance of children Act. It can
also be made when a marriage is declared void – s4.
The man alleged to be the father of a non-marital child is known as the putative father.
The application can also be made by any other person other than the mother of the child.
Such a person is known as the next friend. This is a guardian of the child or some other
relation who is knowledgeable of the facts leading to the birth of the child –s5.
Maintenance orders
At the time of making an affiliation order, or upon subsequent application, the court may
make a maintenance order with respect to the child concerned – s7.
In terms of s8 either party to the marriage may make an application to the court for
maintenance on the ground that the other has failed to provide or to make a proper
contribution towards, reasonable maintenance for a marital child. A maintenance order may
be made following the granting of a decree absolute, decree of nullity or judicial separation
with respect to a marital child or at any time thereafter – s9.
Types of Maintenance orders and their Duration
Under the provisions of s10, a maintenance order may take any of the following forms:
a. Periodic payments for a specified term made to a specified child or a specified person.
b. Lump sum payments
c. Secured periodic payments –defendant shall secure to the satisfaction of the court the
making of specified periodic payments of a specified term.

lOMoARcPSD|5065845
If the amount to be paid is deferred or it is to be paid in instalments, then the court may order
that it shall carry interest at a specified rate .
The court shall not make a maintenance order for a child who has reached age of 18. The
periodic payment or secured periodic payments may begin with the date of making the
application and will not go beyond the child’s 18 th birthday - s12. The exception is if the child
is receiving some instructions in a profession or vocation. Also if there are special
circumstances justifying the making of the order.
Enforcement of orders to be covered in next topic.
UNIT 13: FINANCIAL RELIEF FOR MEMBERS OF THE FAMILY ON DIVORCE
13.1 COURT ORDERS ON DIVORCE, NULLITY AND JUDICIAL SEPARATION
Prior to the passing of the matrimonial Causes Act of 1973, the courts had very limited
powers with regard to the orders they could make after divorce. Their orders were largely
confined to cash payments. This was changed by the enactment of the Matrimonial
Proceedings and Property Act incorporated in the MCA 1973. The aim of the reforms was to
ensure adequate provision for wives unwillingly divorced by economically dominant
husbands. This Act greatly extended the courts powers and the parties strict legal
entitlements to particular assets are now of only limited relevance.
The orders that a court may make upon divorce, nullity or judicial separation can be divided
into financial provision and property adjustment orders. The court may also make an order
for maintenance pending suit pursuant to s52 MCA 2007. These orders will only be made
after a decree nisi has been made except maintenance pending suit or orders with regard to
children.

lOMoARcPSD|5065845
13.1.1 Financial Provision Orders – s54 MCA 2007
a) Periodic payments which may be weekly, monthly or annually.

b) Secured periodic payments order – the payer is required to set aside a fund of
capital to which recourse can be had to make good any default in making
stipulated payments. It may be enforced if the debtor dies, disappears, disposes of
other property, or ceases to earn.
Both these orders may be made for a specified term and the factors will be decided by the
court. All periodic payment orders come to an end if the payee remarries. It does not
automatically terminate if the payee simply cohabits. The payer can however apply to court
to extinguish or have the order reduced. The court may exercise this power if the new partner
can provide financially for the couple.
C) Lump Sum payment – court may order payment by instalments and this may be
secured. Advantages of lump sum payments are set out in R v R (2003) EWHC 3197.
A lump sum order endures beyond a wife’s remarriage.
D) The same type of orders can be made in relation to a child of the family or to such
child as specified in the order. These orders shall not be made in relation to a child
who has attained the age of 21 years unless there are special circumstances that justify
the payment. (Compare with Maintenance of Children Act).
Miller v Miller (2005) EWCA 984;
McFarlane v McFarlane (2006) UKHL 24
The wife to the respondent gave up her practice as a solicitor so

that she could look after her family. The marriage was ended by
divorce and the issue of property sharing and maintenance was
considered. The W was awarded maintenance and the court
ordered that property be shared because she had given up her
career as a Solicitor. A new element of compensation was also
introduced by the court.
13.1.2 Property Adjustment orders
The other type of orders that the court can make are as follows;
a) Transfer of property to the other party or for the benefit of the any child of the family;

lOMoARcPSD|5065845
b) Settlement of property for the benefit of the other spouse or any child of the family;
c) Variation of any ante-nuptial or post nuptial settlement.
The court can order transfer and settlement of property to ensure that it is available for
dependent children whilst preserving both parties’ financial interests in it. The order might
state that the house be transferred to the primary carer for the duration of the children’s’
minority. The order can be varied to allow the wife to retain the house until she dies or
remarries or becomes dependent on another man. These are final orders made only when the
marriage has terminated permanently.
Clutton v Clutton (1991) 1 F.L.R 242.
13.2 MAINTENANCE AGREEMENTS BY SPOUSES
There is no provision in the law which stops parties to a marriage from making their own
arrangements or agreements upon the legal termination of their relationship. Parties are
encouraged to resolve matters for themselves rather than resorting to adversarial litigation
that may engender further bitterness and hostility. Mediation is encouraged by the courts. The
parties may therefore make private agreements and any provision in such an agreement which
restricts the parties’ right to apply to the court for maintenance is void.
13.2.1 Pre-nuptial Agreements
English law does not recognise pre-nuptial agreements and they have been held to be contrary
to public policy and also that it anticipated the end of marriage before it even began. The
objection to pre-nuptial agreements has now changed since divorce is so commonplace. The
current position is that a pre-nuptial agreement is not binding on the court but may be taken
into account as part of the circumstances of the case. The issue is how much weight should be
attached to it.
13.2.3 Separation Agreements

lOMoARcPSD|5065845
The parties are encouraged to reach their own agreements upon divorce. The courts are
expected to uphold the agreements unless there are compelling reasons not to do so. If both
parties are legally represented then the court shall not interfere with the ex-curia agreements.
13.1.3 Consent Orders
The parties themselves may agree on the sum to be paid and the agreement will be thoroughly
scrutinised by the court, and if it is unobjectionable it shall be incorporated in the court order.
But if the term of the agreement is unjust the court will not embody the agreement in its
order.
13.3 ASSESSMENT OF FINANCIAL PROVISION
The court has been given almost unfettered discretion when it to exercise of its powers over
the assessment of income and assets of divorcing spouses. The court has to perform 3 roles:
It is the duty of the court in deciding whether to exercise its powers, and if so, in what
manner to have regard to all the circumstances of the case, first consideration being given to
the welfare of a child who is still a minor. The court is to have regard to certain specified
matters and it is required to go through a complex decision making process designed to
facilitate in certain cases, the making of a ‘clean break’ between the parties.
13.3.1 Welfare of children
In consideration of the welfare of children who have not attained the age of 21 years, the
court will in most cases give the house to the parent with whom the children are to live. The
court has to consider first the welfare of the child but this is not of paramount importance. It
has to be widened in light of the parents’ rights. This means it has to consider all the
circumstances, always bearing the welfare of the children in mind and then try to make a just
financial settlement between the adult parties. This only applies to children of the family and
may include any child who has been treated by both of the parties as a child of the family and
also step-children who have lived in the spouses’ house.
13.3.2 CONSIDER ALL THE CIRCUMSTANCES
The MCA 2007 s 56 lists a number of factors to which the courts is directed to have regard.
The following discussion seeks to demonstrate how the courts have interpreted these
provisions in assessing financial provisions. It should be noted that no one factor prevails

lOMoARcPSD|5065845
over the others. The court is required to have regard to “all the circumstances of the case”.
This means that it must not confine its attention to specified matters, it must also investigate
all other circumstances, past, present, and future which are relevant to a decision of any
particular case.
The first step to take is to gain an idea of the value of the parties’ assets. This means that the
parties must disclose all their assets so that their value can be ascertained. This does not
however require a lengthy financial inquiry. The next step is to determine what assets are
relevant. Any and all assets acquired before or during marriage and even after the legal
termination may be taken into account by the courts, as may expectations of future assets.
Another factor that has caused problems is the extent to which a new partner’s earning
capacity and earnings should be taken into account.
M v M (2002) EWHC 317
The court has no power to order a third party, for example, husband’s second wife to provide
for applicant or children of the first family and it must not make an order which can only be
satisfied by dipping into the third party’s resources.
The court will also look into the source of the assets. The source is not relevant because the
court looks at the assets of the parties. If the assets acquired during the marriage are
insufficient to meet the needs of both parties then the court may well take into account other
assets. If the assets are more than sufficient it may justify a departure from equal sharing of
the assets. The applicant may be awarded a smaller percentage of the assets.
M v M (2004) EWHC 688 – wife not entitled to half a share in assets accrued since
separation.
The courts have stated that a distinction should be drawn between family assets and other
assets. Family assets are those things acquired by one or the other or both of the parties, with
intention that there should be continuing provision for them and their children, during their
joint lives, and used for the benefit of the family as a whole” – Lord Denning in Wachtel v
Wachtel (1973) Fam. 72.This would therefore include, furniture, family home, family
savings, insurance policies and family businesses or joint ventures in which both parties
worked. Such assets are regarded as the fruits of the marital partnership, and as such there
will be a strong case for equal division.

lOMoARcPSD|5065845
If on the other hand the assets are not “family assets”, or not generated by the joint efforts of
the parties, then the duration of the marriage may justify a departure from the yardstick of
equality of division. This means that the spouse who has accrued substantial assets through
his or her business could expect to retain more than half of those assets, although the precise
proportions will depend on the duration of the marriage.
Miller v Miller (2005) EWCA 984
The nature of the assets must also be taken into account to determine what division is
appropriate. The specified factors are as follows:
a) The income, earning capacity and other financial resources which each of the
parties to the marriage has or is likely to have in the foreseeable future – s56(1) (a)
MCA 2007.
Income
The court must find a way of stretching an income that previously supported one household
support 2 households.
McFarlane v McFarlane (2006) UKHL 24 – sharing income.
Earning Capacity
This is usually a source of dispute. The court is concerned with what each party could
reasonably earn. In this vein 2 separate issues will be looked at. The first is that, has the
spouse in fact any earning potential. Secondly what would it be reasonable to expect? On
this second point the recurring theme is the issue of a middle- aged woman who has not
worked during the marriage. It will not be considered reasonable to expect her to work after a
long absence from the market. A different approach will be taken if the wife is younger and
the absence from work shorter. In the wake of Miller and McFarlane, it will be relevant to
investigate whether the weaker spouse gave up a career to support the other, in which case an
element of compensation may be appropriate.
b) The financial needs, obligations and responsibilities which each of the parties to
the marriage has or is likely to have in the foreseeable future – s56(1) (b)

lOMoARcPSD|5065845
The division of the assets should be such as to secure the basic needs of the parties and their
children. Although the parent caring for the child will have greater needs for housing the
children, the court will not ignore the fact that both parents need housing.
I. Financial needs or reasonable requirements
The courts used to focus on “reasonable requirements” of the spouse claiming provision
before the decision in White v White (2000) 2 F.L.R 981 (Reasonable requirements of the
rich may seem like luxuries to others). Such an approach tended to leave the spouse with a
relatively small proportion of the assets. In the White case Lord Nicholls stressed that there
was nothing in the MCA 1973 in s25, to indicate that reasonable requirement should limit the
amount awarded to the spouse. The justifications for focusing on the reasonable requirements
of the wife have varied from case to case.
II. Obligations and Responsibilities
The impact of child care obligations has already been discussed under earning capacity and is
also important in the context of contributions that the carer has made in the past and will
make in the future. The child to whom such obligations arise need not be the child of the
family. The issue to be resolved is the question, how far should obligations of one the parties
justify a departure from equal division? There is no consensus on this yet.
c) The standard of living enjoyed by the family before the breakdown of the marriage
– s 56 (1) (c);
There is no automatic entitlement for either or both parties to keep the same standard of
living as had been enjoyed during the relationship. The standard of living will be relevant in
determining the “reasonable requirements” of the applicant.
If the resources of the parties have diminished since the marriage, it may not be reasonable
for the same standard of living to be maintained.
White and McFarlane cases.
d) The age of each party to the marriage and the duration of the marriage – s56(1)
(d);

lOMoARcPSD|5065845
The age of the parties will be relevant to the courts’ assessment of their needs and resources.
If a spouse is young and healthy he or she will be able to work and the need for support will
be much less while an elderly and infirm spouse’s needs will be much greater. However the
presence of children may mean that even a young spouse will not be able to work for a time.
The duration of the relationship is also vital. There is a preliminary question as to how
duration is to be assessed. If the relationship has been a lengthy one, equal division of
property will be appropriate.
e) Any physical or mental disability of either of the parties to the marriage – s56(1)
(e);
Disability may invite considerable sympathy, it should however be remembered that it is one
the factors to be taken into account. Any disability will of course influence other factors such
as the earning capacity and needs of the parties in question.
f) The contributions made by each of the parties to the welfare of the family,
including any contribution made by looking after the home or caring for the family
– s56(1) (f);
The law is not very certain on the aspect of contributions towards the acquisition of family
assets. The views on this very complex issue have been divergent. One side of the argument
is that there should be equal division of the family assets. On the other hand the view is that
there should be an assessment of the actual contributions.
White v White (2000) 2 F.L.R 981
Lambert v Lambert (2002) EWHC 1685.
g) In the case of proceedings for divorce or nullity of marriage, the value to either of
the parties to the marriage of any benefit, such as a pension, which as a result of
the dissolution or annulment of the marriage, that party will lose the chance of
acquiring.
The court may order a pension fund manager to divert payments from the pensioner’s
retirement pension to be paid over to the other spouse.

lOMoARcPSD|5065845
Financial support and maintenance for children has already been covered. It should be noted
however that under the MCA 2007, a child is considered as someone who has not attained the
age of 21. So it would be advantageous to bring an application under MCA rather than the
Affiliation and Maintenance of Children Act.
13.3.3. Seeking a “clean break”
The law now encourages spouses to avoid bitterness after family breakdown and to settle
their money and property problems outside court. Each party is encouraged to put the past
behind them and to begin a new life which is not overshadowed by the relationship which has
broken down. A spouse may opt for no financial settlement at all from the other spouse
especially in a relationship where there are no children of the family.
13.4 ENFORCEMENT OF COURT ORDERS
The question of enforcement does not arise for secured periodic orders. The problem only
arises for unsecured periodic orders or for lump sum payments. If the decides not to comply
with the courts’ orders what remedies are available to the applicant. The court may make an
attachment or sequestration order for payment of maintenance or costs of the custody of, or
access to, children.
Maintenance order may be enforced in like manner as if the order were made for payment of
a civil debt recoverable summarily – s7 Maintenance Orders (Enforcement) Act.
The court has powers to make an order to have the defendants earning attached to a court
order for payment of maintenance to a child or a spouse – s8 Maintenance Orders Act. The
order shall not be made if it appears o the court that the defendant’s failure to pay was not
due to wilful refusal or culpable neglect.
The cases refered to in this chapter are available at www.bailii.org

lOMoARcPSD|5065845
UNIT 14: PROPERTY AND FINANCIAL PROVISION ON DEATH OF A MEMBER

OF THE FAMILY
14.1 TESTATE SUCCESSION
Any adult of sound mind may make a will disposing of his or her property. The formalities
set out in the Wills and Administration of Testate Estates Act, cap 60 of the Laws must be
observed. The Will determines how a person‘s property may be distributed to the
beneficiaries.
There is a firm belief under English Law which gives the testator freedom to make a Will in
whatever terms one chooses. This freedom can only be challenged in very limited
circumstances such as were children are left out of the Will. Making a Will allows an
individual to give effect to his or her views about family life and family obligations, to
reward (or punish) family members.
14.1.1 Powers Exercisable by Will –s5
A testator may:
 Dispose of any property which is his or which he is entitled at the time of his death or
to which he may be entitled thereafter.
 Appoint one or more persons to be his executor(s).
 Attach any terms and conditions in relation to the disposition of any part of his estate
subject to the Trust Restriction Act
 Appoint a guardian for his minor child where surviving parent is unable to do so.

lOMoARcPSD|5065845
14.1.2 Unreasonable Provisions in a Will
If the court upon application of or on behalf of a dependent is of the view that a testator has
not made reasonable provision during his lifetime or by his Will, for the maintenance of the
dependent, and that hardship will be caused, it may order taking into consideration all
circumstances and subject to such conditions and restrictions as the court may impose,
notwithstanding the provisions of the Will, order that such reasonable provision as the court
thinks fit be made out of the testator’s estate for the maintenance of the dependent – s20.
14.1.3 Variation of Court order –s21
The court may vary the terms of a will if it contains unreasonable provisions.
14.1.4 Executors
Any person eligible to make a contract, of or above the age of 21 years may be appointed an
executor of the Will – s25. An executor may renounce the appointment.
14.2 INTESTATE SUCCESSION
The law provides a default regime in cases of intestacy, that is no Will has been made. In
terms of s4 of the Intestate Succession Act, a person dies intestate if he has not made a Will at
the time of his death.
14.2.1 DISTRIBUTION OF ESTATE – s5
 20% goes to the surviving spouse

 50% devolve upon the children in such proportions as are commensurate with the
child’s age or educational needs.
 20% upon parents of the deceased
 10% dependents in equal shares.
Where the property left is a house the spouse and children shall both hold the house as
tenants in common and the surviving spouse shall have a life interest in the house which shall
cease upon remarriage – s9.
ADMINISTRATION OF ESTATE

lOMoARcPSD|5065845
The court shall grant letters of administration to any interested person where the deceased has
died intestate. Where no application is made the administrator general or the deceased’s
creditor may be appointed administrator – s15.
Duties and Powers – s19
1. Pay debts and funeral expenses of the deceased and pay estate duty if payable;
2. To effect distribution in accordance with the rights of interested persons;
3. To produce an inventory or render an account of the administration of the estate either
on his own motion or by court order.
Removal- s29
An administrator may be relieved of his duties if
 he misappropriates the assets of the estate;
 the proceedings to obtain letters of administration were defective;
 letters were obtained fraudulently.
GUARDIAN AND HIS APPOINTMENT
A court may appoint any person to be guardian of a minor. A guardian appointed under the
Act is entitled to represent the interests of the minor in any proceedings in court relating to
the administration of the estate in which the minor has an interest – s32.
Jurisdiction of the Courts
The High court shall have jurisdiction in matters relating to succession- s 43.
A local court shall have jurisdiction if the value of the estate does not exceed K 50 000, and a
subordinate court K 100 000.

lOMoARcPSD|5065845

lOMoARcPSD|5065845

Family Law Module Done by An Unza Lecturer

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Family Law Module Done by An Unza Lecturer

Hochgeladen von

Copyright:

Verfügbare Formate

lOMoARcPSD|5065845

Family Law Module - done by an unza lecturer

Law (University of Zambia)

StuDocu is not sponsored or endorsed by any college or university

FAMILY LAW AND

2010 ACADEMIC YEAR

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

PART 1 HUSBAND AND WIFE

UNIT 4 – EFFECTS OF MARRIAGE …………………………………………………………………………………………………20

UNIT 5 – BREAKDOWN /TERMINATION OF MARRIAGE ……………………………………………...……………….24

UNIT 6 – JUDICIAL SEPARATION.……………………………………………………………………………………….………...33

PART II – CHILDREN AND FAMILY LAW

UNIT 8 - LEGITIMACY ……………………………………………………………………………………………………………. ….39

UNIT 9 – ADOPTION ………………………………………………………………………………………………….……………….41

UNIT 10 – CUSTODY ……………………………………………………………………………………………………………………45

PART III – PROPERTY AND FINANCIAL PROVISION

UNIT 12 – FINANCIAL SUPPORT FOR MEMBERS OF THE FAMILY………………………………………………….53

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

PART 1: HUSBAND AND WIFE

UNIT 1: THE CONCEPT OF FAMILY

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

1.1 NATURE AND SCOPE OF FAMILY LAW

Family law deals with the following:

 Creation and removal of legal status;

1.2 ENGAGEMENT AND COHABITATION

What is the status of an engagement in Zambia?

In some countries an engagement is as almost solemn and carries many responsibilities as

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

An engagement may come to an end:

Bernard vs. Joseph (1982) 3 ALL ER 162 CA

An engaged couple M and W bought a house and lived in it together;

Mossop v Mossop [1988] 2 All ER 202, CA

An engaged couple P and D lived together in D's house; when they

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

 They are living under one roof;

There are a number of differences between cohabitation and marriage.

A divorced man/woman may be granted parental rights and custody of a child.

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

1.3 COURTS ADMINISTERING FAMILY LAW

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

2.1 CHARACTERISTICS OF MARRIAGE

 It must be voluntary- parties getting married should consent to such marriage;

 The parties to a marriage should be of different sexes? South African case of

2.2 TYPES OF MARRIAGE

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

 Customary marriage- this is a marriage conducted in accordance with a particular

2.3 CONTRACT OF MARRIAGE

2.4 CAPACITY TO MARRY

 neither party must be already married;

 both parties must be over the age of 16; and

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

2.5 FORMALITIES OF MARRIAGE

2.5.1 Preliminaries to Marriage

Read sections 6 through to 16 of the Act.

2.5.2 Parental Consent

S 18 - signature to consent and attestation if parent unable to write.

Downloaded by Lushimba Chileya (lushimbachi@gmail.com)

2.5.3 Solemnisation of Marriage

 The marriage must be solemnised in any licensed place of worship by a licensed

 S 21 – registrar’s certificate or special license;

 S22- marriage in licensed building;

 S24 – completion of marriage certificate;