This will be a weekly feature published every Wednesday in which we discuss the legislative aspects of a topical or current issue. This week we are discussing the law governing marriage and divorce in Zambia.
By Mwila Chikwanda- Jangazya and Mordecai Mweene
INTRODUCTION
On 29th January, 2021, the Honourable Minister of Justice Given Lubinda reported to Parliament on how the country has continued to report high numbers of divorce rates. It was submitted that between 2016 and 2019 the High Court granted 1,299 divorce petitions while the Local Court granted a total of 61,499 divorce petitions[1]. This has also been a topical issue on various social media platforms and other media houses such as Mwebantu Facebook Page, Zambia Daily Mail Newspaper and other online networks.
The high number of divorce petitions granted by the Local Courts was attributed to the fact that the Local Courts handle customary marriages which makes it easy to dissolve a marriage[2].
This article seeks to analyse the laws that govern statutory marriages and customary marriages in Zambia and how they can be dissolved.
Marriage forms a very important institution from which a family is founded. In Zambia today, there are principally two ways under which marriage can be contracted. The first one is the statutory marriage which is governed by the Marriage Act Chapter 50 of the Laws of Zambia and the second one is under Zambian traditions and customs[3].
Customary Marriage
A customary marriage is arranged and consented to by the parents. This is followed by marriage payments which concretise the marriage. Under customary marriage there is no specific age for marriage. A girl is considered capable of marrying at puberty although some ethnic groups allow a longer period for a girl to be more mature. On the other hand, a boy is considered ready for marriage once he grows a beard and shows ability to do work that can support a wife, children and other members of the family. Customary marriages are potentially polygamous[4]. This means that, a man is allowed to marry more than one woman. It is in this respect, of polygamous marriages, that conflict is usually experienced because the man fails to share his affectionate equally to his wives which sometimes leads to divorce.
Divorce under Customary Law
A customary marriage comes to an end after families of both parties have made several attempts to counsel and reconcile the parties to the marriage. The families are fully involved in the processes of marriage as well as of divorce. If the parties wish, they may proceed to a traditional court or to a local court for the dissolution of their marriage. In both courts, parents of the parties, particularly of the woman, are required to confirm that the parties were actually married by explaining matters of consent, and marriage payments. Allegations by a man do not need to be proved in the local court, and the marriage is usually dissolved as long as the man no longer wants his wife.[5]
Allegations by a woman require proof, and the marriage will usually not be dissolved if the man contests it. The marriage will also be dissolved if the woman commences the action for reconciliation, with no intention of divorcing, as long as the man tells the court that he no longer wants her.[6]
Grounds for divorce
The grounds for divorce under customary law are many and vary from one ethnic group to another. The most common grounds are as follows:
(A) Adultery
Under customary marriage a man may petition for divorce if the wife is adulterous. Whereas, a woman may only petition for a divorce on the ground that her husband persistently commits adultery which brings shame on her or otherwise prejudice her interest. This is because a husband is allowed to have extra – marital relationships because the marriage is potentially polygamous[7].
(B) Behaviour
A party to a marriage may petition for divorce on account of unbecoming behaviour which includes; violence against the wife or children of the family or both, refusal or neglect to provide adequate food, shelter, clothes, use of abusive language in the presence of children, in – laws or outsiders, denial of conjugal rights, nagging, quarrelsome, greed, dislike of the other spouse’s relatives.
(C) Childlessness
In customary law, procreation is the basis for marriage. A large family is seen as an investment and a source of labour[8]. If the party is unable to procreate and discovers that it is the other spouse who is impotent or unable to produce children, he or she can petition for divorce.
(D) Illness
Illness is a ground for divorce if it persists. This divorce ground applies to both the man and woman. In the case of a wife who falls ill and fails to perform household chores may be divorced. While a sick wife is equally entitled to divorce the husband if he neglects to take care of her.[9]
(E) Laziness
Marriage imposes duties and obligations on the parties. A spouse who neglects, fails or refuses to adequately perform those duties can be divorced. The duties referred to herein relate to providing food for the family e.g. by going out to hunt or fish, thatching a leaking roof, providing adequate shelter and security to the persons and property, tilling land and growing food crops, cooking properly and doing other household chores timely and efficiently.[10]
STATUTORY MARRIAGE
Definition of Marriage
Marriage is a legally and socially sanctioned union, usually between a man and a woman that is regulated by laws, rules, customs, believes and attitudes that prescribes the rights and duties of the partners and accords status to their offspring.[11]
The Marriage Act Chapter 50 of the laws of Zambia does not define the term marriage. However the said Act provides for the guidelines and procedures on how to contract a valid statutory marriage.
In order for a party to contract a statutory marriage among others, there is need to file a notice of intention to marry to the Registrar not less than 21 days,[12] the marriage must also be solemnised by a licenced Church Minister, priest or pastor in a designated or licensed place or building.
Further the Marriage Act, allows persons who are 21 and above to be able to consent to a marriage and persons below the age of 21 require consent of the judge and parents.[13]
GROUND FOR DIVORCE
The Matrimonial Causes Act No.20 of 2007 of the laws of Zambia (hereinafter referred to as the ‘MCA’) provides for circumstances under which a contracted marriage can be dissolved. A party to a marriage may file a petition for divorce if the marriage has broken down irretrievably[14]. The five facts to prove that the marriage has broken down irretrievably are as provided for under Section 9 (1) of the Matrimonial Causes Act No. 20 of 2007 and they are as follows:
(A) ADULTERY
In order to succeed on this ground 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. 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.
(B) RESPONDENT’S BEHAVIOUR – section 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.
Section 9 (1) (b) of the MCA 2007 provides 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.
(C) DESERTION- Section 9 (1) (c) of the MCA
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:
Constructive desertion this is where respondent behaves in such a way that petitioner is compelled to leave home against his or her wishes under similar conditions as stated above.
(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. If they are living under the same roof, they will only be said to be living apart if they maintain two separate households.
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 can only dissolve a statutory marriage if it is satisfied on the evidence presented before it that the marriage has broken down irretrievably. The court shall not dissolve a marriage which has a likelihood to resume cohabitation.
CONCLUSION
Notably, a statutory marriage sets the age limit for one to contract a marriage. It also provides for circumstances when the said marriage can come to an end. It is trite law for the courts to inquire into the facts and evidence before a marriage can be dissolved. Therefore, a statutory marriage is difficult to dissolve as compared to the customary marriage.
Under customary marriage, as long as the girl or boy has attained the age of puberty and the parents’ consent to the marriage and payments are made these guarantee the union of customary Marriage. This contributes to an increase in divorce cases as in most cases the parties to the marriage are not well equipped to manage a home and subsequently file for divorce.
Further in customary marriages a man has an upper hand to divorce the spouse on baseless ground as compared to a woman. This has contributed to high number of divorce cases as men exercise the option to choose from many women available. This has subsequently seen a rise in divorce cases granted by the Local Courts as compared to the high court.
In quest to resolve some of the anomalies in the laws governing marriages in Zambia, the Zambia Law Development Commission conducted a research in 2014 which culminated into a Marriage Bill to review of the marriage Act chapter 50 of the laws of Zambia which among others recommended the formalisation of customary marriage which will confer equal rights between the husband and wife. The review also recommended the recognition of different types of marriages such as the Hindu marriages, Christians marriages and Islamic marriages.
FOOT NOTES
[1] Zambia Daily Mail Newspaper January 30,2021
[2] supra
[3] Zambia has a dual legal system recognized by the Constitution. This is to say both statutory and customary laws apply
[4] Lillian Mushota (2005) Family Law in Zambia pp 20
[5] Supra, p 63
[6]Supra, p 67
[7] Supra – p 68
[8] Lilian Mushota (2005) Family Law In Zambia p 70
[9]Supra - p 70
[10] Supra - p 71
[11] https://www.britanica.com/topic/marriage retrieved on 9th February,2021
[12] Section 6 of the Marriage Act Chapter 50 of the Laws of Zambia
[13] Section 33 of the Marriage Act Chapter 50 of the Laws of Zambia
[14] Section 8 of the Matrimonial Causes Act (MCA) 2007,