Family Law 1
Family Law 1
Family Law 1
Marriage
Divorce
Property settlement (Sharing)
Maintenance of spouse and children within and after marriage.
Custody of children after dissolution of marriage.
Adoption of children
Legitimacy of children
Succession
Inheritance of property.
A FAMILY is the smallest unit in a society which comprises of persons related by blood or marriage.
Nuclear family: A group of persons consisting of a man, his wife or wives in case of
polygamous marriage and their children.
Extended family: is a type of family that consists of not only a man, his wife or wives and their
children but also grandparents, uncles, aunties, nieces, nephews, cousins, in-laws and
grandchildren.
Single Parent headed family: is a type of family that consists of a single parent and children.
This can be as a result of divorce, death or being widowed.
Child headed family: is a type of a family that is headed by a child owing to the death of both
parents, leaving children to bring themselves up.
MARRIAGE:
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union the inability to provide for the union or inability of the wife to conceive and bear
children for the union.
- In Zambia there are only two types of marriages that are recognized by law. These are Statutory
and Customary marriages
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- This is the evidence of marriage and a copy of which is kept by the Registrar and the other by the
couple.
2. Customary Marriage:
- This is the marriage contracted under customary practices. This marriage may not be a union of
one man one woman in the case of polygamy.
a) Consent:
- This is when the parents or guardians of the woman getting married give permission for her to
marry and also when the person getting married agrees to marry.
b) Marriage Payment:
- There is always payment as recognition of the marriage. The payment is made by the bridegroom-
to-be to the family of the bride-to-be. The payment makes legal the marriage.
c) Spouses:
- The parties to the marriage should be male and female. The female should be single, divorced or
widowed but the male may already have one or more wives.
d) Relationship:
- The persons intending to get married should not be closely related by blood or through marriage.
e) Age
- The Zambian constitution stipulates that a girl below 16 years whether she has reached puberty or
not is not eligible for marriage. Both parties should be above the age of 16.
i. Religious Marriage:
- This is the marriage solemnized or performed in church by the clergy. Note: The marriage
solemnized in church should be followed up by a registration at either the Civic Centre or
Council Offices under the Marriage Act or at a Local Court under the Local Court Act.
- In most churches in Zambia a notice is given of the impending marriage through Marriage
Banns. Marriage Banns are announcements that are made in church of the intention of the
couple to marry. During the announcements church members are asked to inform the priest or
pastor in confidence of any reason if any of why the couple should not marry. Church members
are also requested to pray for the couple.
- Apart from the pastor or priest being licensed, another qualification for the legal recognition of a
marriage performed in Church is to conduct the ceremony between 08:00hrs to 18:00hrs with the
doors of the church buildings open.
ii. Cohabitation:
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- This is a marriage where the parties concerned decide to live together on their own without
consent by their parents or guardians and without following any rituals performed either in a
customary or civil marriage and later the society recognizes the couple as husband and wife.
- Marriage will not be recognised if not followed up with formalizing it in the Local Court or the
High court, and it will be void under the law.
Divorce
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- According to the Matrimonial Causes Act of 1973, a divorce under a customary law will take
place depending on the custom the couple were married under. Some of the payments may have
to be returned to the husband’s family.
- Causes acceptable as grounds for divorce in a customary marriage are: -
- Adultery which does not need to be proved
- Cruelty
- Laziness on the part of the wife
- Bad relations with the in-laws
- Infertility
- Lack of maintenance by the man
- Desertion
A customary law divorce can be done by the two families meeting together and making a decision or
either party can sue for divorce in the local court. No other documents are filed in court except for the
complainant’s form and the summons to appear before the court. Plans and agreement about how the
children are going to be looked after is based on the ethnic norms.
- This is initiated by the husband or the wife or even by the wife’s family. The husband initiates it
by chasing away his wife, telling her to return to her parent’s home. He is also required to inform
her parents that he intends to be separated or divorced from their daughter.
- The wife may also initiate divorce by voluntarily leaving her husband’s home and returning to her
parents.
- The wife’s family can also initiate divorce, especially where the husband has refused to pay the
full bride-price and they go and get their daughter.
- Under customary law, return of the bride price symbolizes a valid divorce but this will depend on
whether there are any children of that marriage. If the husband retains the custody of children, no
refund of the bride-price is due.
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- The Marriage Causes Act states that there is only one ground for divorce, which is that the
marriage has broken down irretrievably. This means that the marriage cannot be saved or
redeemed. This situation can arise out of the following reasons:
Adultery which should be proved with the third person known and named.
One or both of the married persons conduct themselves in unreasonable behaviour, cruelty or
violence that makes it impossible for the other partner to live safely.
If either of the married persons deserts for a period of two years, then there is sufficient ground
for divorce. Desertion is when one partner abandons or runs away from the other. Desertion of
more than 7 years of not being seen or heard, there is a presumption or inference of death and the
court will grant a divorce
Separation with consent of the couple for two years
Living apart for a continuous period of five years.
- A petition or application for a divorce is filed in the High Court but only after one year of
marriage. Before one year of marriage, it would not be a divorce but an annulment (which
declares the marriage null and void).
- When presenting a petition, plans to how the divorced couple intends to look after the children
should also be included.
- If the court is satisfied that the marriage is broken down irretrievably it will make a temporary
order called a decree nisi which is a temporary divorce certificate and after six weeks a decree
absolute a permanent divorce certificate, will be granted provided the court is satisfied with the
arrangements made for the children.
Legal separation or De jure separation: this is a legal process by which a married couple may
formalize a separation while remaining legally married.
The following are some of the impacts on the spouse, children and extended family due to the separation,
divorce and death in the family:
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May cause embarrassment to the family and community.
In case of re marrying step children may be raped by their step fathers and also step children may
be mistreated by their step mothers.
Economic hardships to some members of the family.
May cause poor health in children due to poor nutrition
- After a divorce in a customary marriage the woman usually gets some form of compensation to
allow her start life afresh.
- In a civil marriage the property is shared by the Deputy Registrar’s court in the situation where
one contributed in the earning of the union, he or she will be entitled to a third (1/3) of the total
wealth of the couple.
- If both spouses contributed to the earnings of the couple the property will be shared at 50-50
basis.
- Sometimes in a civil marriage, a couple may choose to marry in Community of property which
means that everything they own and their debts is put together in a joint estate. If a spouse dies,
the surviving party usually becomes the sole owner of any money or property that was jointly
owned.
- Both within and after divorce a spouse has a duty to maintain his or her life partner. Under
customary after divorce a spouse is duty bound to maintain is or her partner for a maximum of
three (3) years or until he or she remarries which even happens earlier.
- The maintenance is provided for under the Local Courts Act of 1991. The court can award any
amount for either periodic or lump sum maintenance as they see it fit.
- The court can convict a person for failing to honour maintenance either through a fine or
imprisonment.
Alimony: is the amount of money ordered by the court to be paid by one spouse to the other, usually
by the husband to the wife, for some period after divorce.
- The maintenance of children is provided for in the Affiliation and Maintenance Provisions Act,
Cap 64 of the revised laws of Zambia. The Affiliation Act permits children born out of wedlock
to be affiliated to their male parent and thereby claim maintenance.
- The application for affiliation and maintenance is made by the mother of the child or children
within 12 months of the birth or at any time if the father had provided for the child after its birth,
then for some reason stopped.
- The application should contain proof that the person being asked to provide maintenance is the
natural father of the child either through a blood test or a birth certificate. If the courts are
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satisfied that the respondent who is the person being asked to respond to the charge is the father,
it will award maintenance to the child as it sees fit and according to the father’s paying ability.
The following can claim maintenance:
A child – from its affiliated father or legal parents
A guardian, for example, a grandparent or an uncle can claim maintenance on behalf of the
child.
A single woman from the affiliated father of her child
A spouse from his or her partner whether divorced or not.
Anyone wishing to claim maintenance can approach the clerk at the nearest local court or lawyer. Either
of these persons will help with initiating the legal proceedings and summon the person who is supposed to
provide maintenance to court
- When awarding custody, the ages and needs of children are taken into consideration, as well as
the best interest of the child.
- Usually, the court gives custody to the mother if the children are very young (infants). However,
the father will provide maintenance.
ADOPTION OF CHILDREN.
Adoption process is whereby a person assumes parenting of another, usually a child, from that person’s
biological or legal parent or parents and in so doing transfer all rights and responsibilities from the legal
parent.
- Forms of child adoption include open adoptions, closed adoptions, private domestic adoptions,
foster care adoptions and international adoptions.
- Under the Adoption of Children Act, Chapter 136 of the 1948 Edition of the laws of Zambia, the
courts have been given power to grant an order to adults requesting to adopt a child.
- The Act has listed the categories of persons eligible to adopt children.
A couple jointly wanting to adopt an infant (an infant is a child less than 7 years old)
A mother or father of the child either along or jointly with his or her present spouse. This
means that if a person has a child or children then remarries and the new partner wants to
formally adopt the children from the former marriage, he or she or together can apply to
adopt the children.
A person who has reached the age of 21 years old and is a relative of the infant.
Both the infant or child and the person applying for adoption should live in Zambia.
The infant has been looked after by the applicant continuously for at least three (3) months
before the date of the application.
The person intending to adopt notifies the Commissioner of the intention to adopt three (3)
months before the application.
In case of a couple, both or one of them should have attained the age of 25 years old and is at
least 21 years older than the infant.
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The law does not allow adoption in the following circumstances;
- a parent or guardian of a child who has neglected or abandoned the child or infant.
- A parent or guardian who is supposed to be paying maintenance to the child but who has
continuously not done this for a long period of time.
- The person whose consent is needed cannot be found or is incapable of giving their consent or if
they are withholding their consent unreasonably.
Applications for adoption are made to the courts of law and when granted, the adoption should be
registered with the Registrar-General who records the details in the Adopted Children’s Register.
when an adoption has been done the original parents or guardian lose all the rights and obligations to the
child or infant.
- There are organisations in Zambia that exist for the purpose of making arrangements for the
adoption of infants and children, and are registered as Adoption societies.
If the activities of the society are not controlled by a committee of members of the society who
are responsible to the members of the society.
If any person working for such a society id found to be unfit and proper to work for such an
organisation.
The number of competent persons employed is not sufficient to cope with the work the society
has to do.
If any person taking part in the management of the society has been convicted of violating parts
of the adoption Act.
LEGITIMACY OF CHILDREN
- Based on the United Nations Convention on the Rights of the Child 1989 (UNCRC) new laws
have equalized the position of children born outside marriage to those born in wedlock.
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SUCCESSION.
- Succession when death occurs in a family is usually defined by traditional norms and customs of
the ethnic group that family belongs to. For example, the Bembas trace their lineage through the
mother (Matrilineal), therefore, when a Bemba person, chief or headman dies, his sons are not
eligible to succeed him but one of his nephews would succeed him. A complete opposite in the
case of the Ngoni.
INHERITANCE OF PROPERTY
- In Zambia today the inheritance of property is provided for in the Testate and Intestate
succession Act of 1989.
A. Testate Succession: deals with inheritance of property of a dead (deceased) who left a will.
- A will is a declaration normally in writing stating how a person wants his or her property shared
or distributed in the event of his or her death.
- Testator is the person who makes the will in case of a male and the Testatrix is case of a female.
- For an Oral will to be valid, it has to be made in the presence of two witnesses who are not
beneficiaries to the estate, and should be made by either an injured person who is expected to
die or by a person in the armed forces who is about to die in combat.
B. Intestate Succession: This is the Act used to distribute the property of the deceased who did not
leave a will or someone who has left but that will is nullified by the courts of law, it is not signed
in the presence of two witnesses or other factors considered not valid by the courts.
- The distribution is done as follows:
- 20% of the estate goes to the surviving spouse.
- 50% of the estate will be distributed to the children both in and outside wedlock.
- 20% will go to the parents or guardians.
- 10% will go to dependents in equal proportions.
- Bona vacantia means ownerless property that is passed on to the government.
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