Family Law 1

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FAMILY LAW

ELEMENTS OF FAMILY LAW

Family law covers the following elements;

 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.

TYPES OF FAMILIES IN ZAMBIA

 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:

- Marriage is a legal union of a man and woman as husband and wife.


- marriage is therefore a contract that creates the social status of husband and wife.
- This contract is based on the following:
a) Rights: these are entitlements a wife or husband enjoys in the union e.g. a wife has a
right to be provided for by the husband and the husband to be taken care of by the wife.
b) Obligations: These are duties that a wife or husband performs in the union. For
example, each of the spouses has a duty to take care of and protect the other spouse.
c) Capacities: These are abilities or capabilities that each spouse brings to the union. For
example, a wife has the ability to conceive and bear children for the union.
d) Incapacities: These are inabilities or incapacities that each spouse brings to the union.
For example, a wife who is not educated and not skilled in anything may bring to the

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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.

TYPES OF MARRIAGE IN ZAMBIA

- In Zambia there are only two types of marriages that are recognized by law. These are Statutory
and Customary marriages

1. Statutory or Civil Marriage


- This is a voluntary union of one wife and one husband for life and excluding all others.
- It is a monogamous marriage meaning having one wife or one husband at a time.

Requirements for entering into a statutory marriage:

a) Take out a notice of marriage:


- This is a notice of intention is marry made on a prescribed form to the Registrar of marriages at
the local council offices. The notice is published outside the Registrar’s office for 21 days. After
21 days the marriage will be solemnized, meaning celebrated by a marriage registrar or a licensed
church priest or pastor.
- During the period of notice, any person can stop the marriage if there is a good reason why the
two should not marry by writing the word ‘forbidden’ and giving reasons in the marriage notice
book.
b) Marriage Payment:
- The Marriage Act does not stipulate any payment of any kind. Unless the individual concerned
just wants to observe the customary ritual of paying marriage payment.
c) Age:
- Under the Marriage Act parties intending to marry should be 21 years of age. If any of the parties
is below 21 and above 16 years, he or she needs a letter of consent from his or her parents or
guardians which must be filed together with a sworn affidavit at the High court.
- An Affidavit is a written declaration or statement that a person makes under Oath which will be
used as legal proof or evidence.
d) Relationship:
- The two should not be related to each other either by blood or marriage. The relationships which
are prohibited by law to enter into marriage are known as prohibited degrees.
e) Solemnization of Marriage:
- This is when the actual wedding is performed following the laid down ritual such as each of the
parties publicly declaring that he or she has agreed to wed the person that they are standing next
to by saying this aloud and mentioning all the names of the person.
- The rituals also involve undertaking the vows done by both of the parties in front of witnesses,
exchanging of rings and signing the marriage register.
- Ceremony should take place in a room with open doors and between 08:00 hrs. and 18:00hrs.
f) The Marriage Certificate:

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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.

Requirements under a customary marriage are:

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.

Other ‘marriages’ though not recognized under Zambian Law.

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.

iii. A Void Marriage:


- This is the kind of marriage without legal standing right from the beginning. It is null and void.
- Any party to a void marriage may not be guilty of Bigamy, if they remarry before divorcing the
so-called 1st wife or husband.
- Bigamy is marrying another person while still legally married to someone else.

Some reasons for a void marriage.

- Lack of parental consent.


- Non publication of vows in church.
- If the man is under 21 years old.
- If the female is under 21 years and above 16 years without the consent of the parents or
guardians.
- Prohibited degrees of marriage (relationship by blood in legal terms known as Consanguinity or
by marriage which by law is called Affinity)
- If one party is already married under the marriage Act at the time of contracting the ‘marriage’.

iv. Voidable Marriage:


- This is one that is initially valid which means had a legal standing until it is invalidated by the
court of law.

Reasons for invalidation of a marriage by the court of law.

- If the child born is not the husband’s child.


- If the spouse has contracted sexually transmitted disease from elsewhere not from the spouse.
- If the marriage is not consummated due to impotence (consummation in marriage means making
marriage complete by having sexual intercourse)
- Willful refusal to consummate the marriage by any party.
- Mental disorder of any of the parties.

Divorce

Divorce or dissolution of marriage is the termination of a marriage or marital union.

a) Divorce in a Customary Marriage

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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.

EXTRA JUDICIAL DIVORCE

- 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.

Factors for this divorce include:

- Refusal to have sexual relations for no good reasons.


- Witchcraft
- Wilful desertion
- Incest
- Habitual theft
- Excessive physical cruelty
- Adultery on the part of the wife.

Divorce under Statutory Marriage

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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.

EFFECTS OF SEPARATION, DIVORCE AND DEATH ON THE FAMILY.

The following are some of the impacts on the spouse, children and extended family due to the separation,
divorce and death in the family:

 Children lack parental guidance and care.


 Children resort to substance abuse and prostitution.
 Girls enter into early marriages at the expense of education
 Loss of family ties (family disruption)
 Increase in the number of street kids
 Increase in the spread of HIV and AIDS
 Increase in juvenile delinquency
 Disruption children’s education
 Children grow without parental love
 May cause mental disturbance on the children or spouse causing deviant behaviour.

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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

PROPERTY SETTLEMENT (SHARING):

- 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.

MAINTENANCE OF SPOUSE AND CHILDREN WITHIN AND AFTER MARRIAGE:

- 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

CUSTODY OF CHILDREN AFTER DISSOLUTION OF MARRIAGE

- 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;

- Adoption of a female infant by a male applicant on his own.


- Adoption of an infant or child who already has parents or anybody providing maintenance unless
with the person’s permission.
- An application by one of a pair of a couple unless with the consent of both partners.

The consent will not be asked from:

- 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.

Reasons that could lead to an adoption society not to be registered:

 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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