DOMESTIC RELATIONS

9.1 DOMESTIC RELATIONS

9.1.1 What is Domestic Relations about?

Domestic Relations is the branch of law that governs personal and familial relationships,
primarily focusing on the rights, duties, and obligations arising from family ties. In Zambia, it
covers both statutory and customary legal frameworks and includes issues such as
marriage, divorce, maintenance, custody of children, adoption, and matrimonial
property.

It is regulated under a mixture of legal sources including:

 The Marriage Act, Cap 50

 Matrimonial Causes Act, Cap 52
 The Local Courts Act, Cap 29
 Juveniles Act, Cap 53
 And where applicable, the Constitution of Zambia (Amendment) Act No. 2 of
2016, international instruments, and customary law.

9.1.2 Why is it important to study Domestic Relations?

Domestic Relations is crucial for the following reasons:

1. Regulation of family units – The family is the foundational unit of society. Domestic
relations law preserves its order.
2. Protection of vulnerable parties – The law ensures that children, spouses, and
dependents are protected, particularly during disputes.
3. Legal certainty – Establishes clear rules for marriage, divorce, custody, and
inheritance, reducing conflict and injustice.
4. Interaction of dual systems – Understanding how customary and statutory systems
operate side by side is essential for practice in Zambia.

Case in point: In Mwamba v Mwamba (1971) ZR 83, the High Court emphasized that
customary law marriages are valid under Zambian law provided essential elements are
fulfilled, and such recognition helps avoid discrimination.

9.2 DUAL LEGAL SYSTEM

Zambia operates a dual legal system in family law — combining customary law and
statutory law. These systems run in parallel but can sometimes overlap or conflict.
Understanding how they interact is essential for resolving disputes, determining jurisdiction,
and advising clients correctly.
9.2.1 Customary vs Statutory Law

Customary Law:

 Unwritten traditional norms practiced by specific ethnic groups.

 Recognized under Article 7 of the Constitution of Zambia (Amendment) Act No. 2
of 2016, and further regulated by the Local Courts Act, Cap 29.
 Governs customary marriages, divorce, bride price (lobola), inheritance, and
child custody, among other issues.
 Varies by community and must not be repugnant to natural justice or written law.

Statutory Law:

 Codified law governed mainly by the Marriage Act, Cap 50 and Matrimonial
Causes Act, Cap 52.
 Deals with statutory marriages, divorce under the Act, maintenance, and custody
issues.
 Enforced primarily in Subordinate and High Courts.

Case Law: In Kapuya v Kapuya (1973) ZR 245, the court noted that the existence of a valid
statutory marriage excludes a subsequent customary marriage, reaffirming the principle of
monogamy under statutory marriage.

9.2.2 Domicile

Domicile determines the applicable law, especially for marriages and divorces involving
foreign nationals.

 A person can have only one domicile at a time — either domicile of origin or
domicile of choice.
 In marriage, the domicile of the husband (in heterosexual marriage) often determines
the matrimonial regime.
 Relevant when enforcing foreign divorces or marriages and deciding jurisdiction.

Case Reference: In Mukuka v Mukuka (1975) ZR 100, the Court considered the domicile of
the parties when addressing the enforceability of a foreign divorce decree.

9.2.3 Enforcement of Orders/Bilateral Agreements

 Foreign matrimonial orders (such as divorce decrees or maintenance orders) may be

recognized in Zambia under comity of nations, subject to safeguards.
 Section 13 of the Matrimonial Causes Act allows recognition of foreign decrees if
not contrary to public policy.
 Zambia is a signatory to several regional treaties (e.g., the Maputo Protocol) which
influence interpretation of domestic relations law.
9.3 MARRIAGE

9.3.1 What is a Marriage?

A marriage is the legal union of a man and a woman as husband and wife, conferring mutual
rights and duties under the law. In Zambia, marriage is either statutory or customary, both
recognized under the dual legal system.

Statutory Authority:

 Marriage Act, Cap 50 of the Laws of Zambia (applies to statutory marriages).

 Local Courts Act, Cap 29 (recognizes customary marriages).
 Interpretation and General Provisions Act, Cap 2, s. 2 defines "marriage".

Key Case:

 Mtalimanja v Mtalimanja (1973) ZR 164: Court held that parties to a statutory

marriage cannot contract another valid marriage while the first subsists.

9.3.2 Types of Marriages

1. Statutory Marriages
o Governed by the Marriage Act.
o Monogamous in nature.
o Celebrated before a registrar or licensed minister in a recognized place of
worship.
2. Customary Marriages
o Governed by local customs and traditions.
o Potentially polygamous.
o Validity depends on adherence to rites of the specific tribe and payment of
lobola (bride price).
3. Religious Marriages
o May be part of customary or statutory system depending on formalities
observed.
o Not legally recognized unless compliant with either the Marriage Act or local
customary law.

9.3.3 Jurisdiction

High Court and Local Court have jurisdiction depending on the nature of the marriage:

 Statutory marriages: High Court and Subordinate Court (as per Matrimonial Causes
Act, Cap 52).
 Customary marriages: Local Courts and Customary Land Tribunals.
Key Point: The proper court must be approached based on the type of marriage, or the suit
may be dismissed for lack of jurisdiction (Chisha v Chisha (2002) ZR 5).

9.3.4 Statutory Marriage: Licensing, Place, Notice, Residency, Foreign Marriages

Licensing of Minister:

 A religious minister must be licensed under s. 5 of the Marriage Act to officiate

marriages.

Place of Marriage:

 Must occur in a licensed church or Registrar’s office (s. 4 of the Marriage Act).

Notice of Marriage:

 Written notice must be posted for 21 days in the Registrar’s office (s. 6).
 If no objections, a certificate is issued under s. 10.

Residency Requirement:

 At least one party must have resided in the district for 15 days before giving notice (s.
7).

Foreign Marriages:

 Zambian citizens marrying abroad must comply with the law of that country and
Zambian conflict-of-laws principles.
 Proof of marriage abroad requires a certified certificate or consular evidence.

9.3.5 Void and Voidable Marriages

Void Marriages (no legal effect from the beginning):

 Where formalities are not complied with (e.g., marriage before unlicensed person,
bigamy).
 See s. 33 and s. 34 of the Marriage Act.

Examples of Void Marriages:

 One party already married under the Marriage Act (bigamy).

 Marriage between prohibited degrees of consanguinity (s. 35).
 Kafwimbi v Kafwimbi (1990) ZR 29 – Bigamous marriage declared void.

Voidable Marriages (valid until annulled):

  Grounds: non-consummation, duress, fraud, mental incapacity, venereal disease (see
Matrimonial Causes Act, s. 12).
 Chirwa v Chirwa (2001) ZR 67: Marriage voidable for concealment of infertility.

9.5 CUSTODY

9.5.1 Principles: Best Interests of the Child

In Zambia, custody matters are guided by the best interest of the child principle. This
principle is enshrined in both statutory and common law, and serves as the paramount
consideration in any judicial determination involving a child.

 Under Section 3 of the Juveniles Act, Chapter 53, the welfare of the child must be
the first and paramount consideration in any matter concerning custody.
 The Matrimonial Causes Act and High Court Act grant the court broad discretion
to make orders that prioritize the child’s psychological, emotional, and physical well-
being.
 Zambian case law has reiterated this standard: in M v M (2003), the High Court
stressed that the child’s emotional bond with each parent, stability, and educational
continuity are key factors.

9.5.2 Types of Custody

 Interim Custody: Temporary custody pending determination of the main suit.

Usually granted through an ex-parte summons supported by affidavit evidence of
urgency and the welfare of the child.
 Sole Custody: Where the child is placed under the care of one parent exclusively.
 Joint Custody: Shared parental responsibilities and access, though the child may
reside with one parent primarily.

The courts often favor joint custody unless it's shown that such an arrangement would be
harmful to the child.

9.5.3 Access

 Even when sole custody is awarded, the non-custodial parent retains access rights,
unless access is deemed contrary to the child's best interests.
 Denial of access must be judicially sanctioned—private arrangements to restrict
access are not enforceable unless formalized through court order.

9.5.4 Procedure Pertaining to Custody (High Court)

 How: Initiated by originating summons or as part of ancillary relief in a divorce

petition.
 Who considers the application: A Judge of the High Court (Family and Children
Division) hears the matter.
 When: Can be sought at any stage of the divorce, separation, or nullity proceedings.
  Revocation: A party may apply to vary or revoke a custody order if there's a
substantial change in circumstances. See L v L (2010) where the court reversed
custody due to evidence of neglect by the custodial parent.

9.6 PROCEEDINGS FOR MATRIMONIAL SETTLEMENTS

These are financial and property-related orders that may be sought before or after the granting
of a decree nisi or decree absolute.

9.6.1 Interim Relief

 Relief granted prior to the conclusion of the case, particularly when one party is
financially vulnerable.
 Governed by Order 30 of the High Court Rules and Section 25 of the Matrimonial
Causes Act.
 Usually includes temporary maintenance, use of matrimonial home, or restraint on
dissipation of assets.

9.6.2 Maintenance Pending Suit

 Known as “maintenance pendente lite”, this ensures the financial needs of a spouse
(typically the wife) are met during the pendency of matrimonial proceedings.
 The applicant must show lack of independent financial means and the respondent’s
capacity to provide.
 See Musonda v Musonda (2006) – interim maintenance awarded due to economic
disparity and urgent need.

9.6.3 Ancillary Relief

 Includes property adjustment, maintenance, and financial compensation after

divorce.
 Must be specifically pleaded in the petition or by subsequent application using a
Notice of Application for Ancillary Relief.

9.6.4 Lump Sum Payment

 A one-time payment made by one party to the other in satisfaction of financial

obligations.
 Common where periodic payments are impractical or when the paying party prefers
finality.
 Assessed based on income, lifestyle, length of marriage, and contribution to family
welfare.

9.6.5 Periodical Maintenance Payments

 Regular, fixed payments made to a former spouse.

 Can be for a fixed period or life, and may be reviewed upon application under
changed circumstances.
  The court considers both need and ability to pay. See Kangwa v Kangwa (2015) –
payments adjusted after change in employment.

9.6.6 Property Adjustment Orders

 Court orders transferring property or adjusting ownership to ensure fair division of

matrimonial assets.
 Factors include:
o Financial and non-financial contribution to property acquisition
o Needs of children
o Future earning capacity of the spouses

9.6.6.1 Chibwe v Chibwe and Subsequent Development

 In Chibwe v Chibwe (SCZ Appeal No. 72 of 2002), the court held that
contributions by a non-titled spouse, whether monetary or domestic, could justify
entitlement to matrimonial property.
 The judgment emphasized that property should not always follow legal title but rather
equitable interest based on contributions.
 This case has since been cited with approval in Kamulaza v Kamulaza (2017) and
Ngulube v Ngulube (2021) as confirming that homemakers have enforceable rights
to matrimonial assets.

9.6.7 Payment Enforcement Orders

 If a party fails to comply with an order for maintenance or lump sum:

o Writ of Fieri Facias or Garnishee Proceedings may be employed.
o Application may also be made for committal for contempt in persistent
breach cases.
 The Affiliation and Maintenance of Children Act also provides for enforcement
mechanisms where children are involved.

9.7 WILFUL NEGLECT TO MAINTAIN

9.7.1 Practice and Procedure

Under Section 5 of the Affiliation and Maintenance of Children Act, Chapter 64, wilful
neglect to maintain a child or dependent spouse is an offence and also gives rise to a cause of
action in maintenance.

 Who can apply:

o A guardian, mother of the child, or person in whose care the child is
placed.
o The Director of Social Welfare may also initiate proceedings.
 When:
o At any time upon proof that a parent/spouse has failed or neglected to provide
reasonable maintenance.
 Which court:
 o The matter may be brought before the Subordinate Court or the High Court,
depending on the complexity and relief sought.
o The Subordinate Court is often used due to its summary process and
accessibility.

9.8 PROCEDURE FOR MAINTENANCE UNDER THE AFFILIATION

AND MAINTENANCE OF CHILDREN ACT

9.8.1 High Court Procedure

 Initiated by: Originating Summons supported by an Affidavit.

 Must set out:
o Nature of relationship
o Facts of non-maintenance
o Financial capacity of respondent
 Relief sought may include:
o Maintenance payments
o Lump sum contributions
o Costs and arrears
 Jurisdiction: Family and Children Division of the High Court under the High Court
Act and Cap 64.

9.8.2 Subordinate Court Procedure

 Commences by Complaint supported by an Affidavit.

 Upon satisfying the Magistrate, a Summons is issued requiring the alleged father or
negligent parent to appear.
 The Court may:
o Make a maintenance order
o Order arrears
o Impose criminal sanctions in cases of wilful refusal to maintain

See: S v N (2015) where the father was ordered to pay K600/month and 50% school fees after
proof of income and wilful neglect.

9.9 ADOPTION

9.9.1 Application

 Application is by Petition to the High Court or Subordinate Court under the

Adoption Act, Chapter 54.
 Must include:
o Affidavit outlining the circumstances of the child and applicant
o Consent of parents or guardians (unless dispensed with)
o Social Welfare Report assessing suitability
  Petition must state:
o Child’s background
o Relationship (if any) to the applicant
o Medical and financial status of applicant

9.9.2 Procedure and Jurisdiction

 High Court has inherent jurisdiction to hear all adoption matters.

 Subordinate Court (First or Second Class) may handle routine or uncontested
applications.
 Mandatory involvement of the Director of Social Welfare, who must file a report
under Section 6 of Cap 54.

9.9.3 Summary Proceedings in High Court and Subordinate Court

 The courts usually sit in camera (closed session) to protect the identity and dignity of
the child.
 Orders of Adoption are final and irrevocable unless fraud or illegality is proved.
 Once granted, the child is deemed the lawful child of the adopter as per Section 11 of
the Adoption Act.

9.10 PROTECTION OF THE RIGHTS OF THE CHILD

9.10.1 Convention on the Rights of the Child (CRC)

 Zambia ratified the CRC and domesticated it through the Juveniles Act, Children’s
Code Act, and various family-related statutes.
 Key rights under CRC:
o Right to identity and nationality
o Right to education and health
o Right to be heard in proceedings
o Protection from abuse, neglect, and exploitation

9.10.2 Rights of a Child Generally

 Protected under the Children’s Code Act, 2022:

o Right to survival and development (Part III)
o Freedom from harmful traditional practices
o Right to legal representation in judicial proceedings
o Right to participate in decisions affecting them

9.10.3 Parental Responsibility

Parental responsibility includes:

 Provision of food, shelter, clothing, and education

 Emotional care and guidance
  Ensuring child attends school and is not engaged in child labor

9.10.3.1 Criminal Liability

 Under Section 9 of the Juveniles Act, a parent may be criminally liable for failing to
prevent the child from being exposed to criminal influences or harmful environments.
 The Children’s Code Act also penalizes negligent parents, especially in abuse or
abandonment cases.

9.10.4 Procedure in Relation to a Child in Need of Care

 Application may be made by:

o Social Welfare Officer
o Police Officer
o NGO or any concerned adult
 The Children’s Court (a division of the Subordinate Court) hears such cases.
 Orders may include:
o Placement in approved institutions or foster homes
o Medical care
o Supervision orders

9.10.5 Applications under the GBV Act and Other Statutes

 Under the Anti-Gender Based Violence Act, 2011, a child may be protected by:
o Protection Order
o Occupation Order (removing the abuser from the home)
o Interim custody orders
 Application is made by:
o Child’s parent/guardian
o Social Welfare Officer
o Police
o The child themselves (depending on age and capacity)

Cases involving abuse may also attract proceedings under:

 Penal Code (assault, neglect, defilement)

 Education Act (truancy and neglect of educational obligations)

9.11 LEGITIMACY
9.11.1 Relevance

Legitimacy refers to whether a child is born within lawful wedlock, affecting their rights of
succession, maintenance, and social status.

 Under Section 3 of the Legitimacy Act, Chapter 52, a child born out of wedlock
may be legitimized by the subsequent marriage of the biological parents.
  Once legitimated, the child is treated as if born in lawful wedlock, with full rights of
inheritance under the Intestate Succession Act, Cap 59, and entitlement to
maintenance.

Importance:

 Determines status for succession (especially customary vs statutory estate issues)

 Affects parental responsibilities and rights
 Has identity and social implications

Case: Re the Estate of Jonas N (Deceased) (2020) – child born out of wedlock was held to be
entitled to share in the estate after proof of subsequent marriage between the parents.

9.11.2 Originating Process

What Application is Made:

 An application under Section 4 of the Legitimacy Act is made for a declaration of

legitimacy.
 The form of action is typically an Originating Summons, accompanied by:
o An Affidavit of the applicant
o The birth certificate of the child
o Marriage certificate (if legitimization by subsequent marriage)
o DNA report (in disputed paternity matters)

Where Application is Made:

 High Court has exclusive jurisdiction to grant such declarations, especially under its
inherent jurisdiction and powers conferred by the Legitimacy Act.

9.12 GENDER BASED VIOLENCE (GBV)

9.12.1 What is GBV

Under the Anti-Gender Based Violence Act No. 1 of 2011, GBV refers to any act that
results in, or is likely to result in physical, sexual, or psychological harm or suffering to
any person, particularly women and children.

It includes:

 Physical violence (beatings, assaults)

 Sexual violence (rape, defilement)
 Emotional abuse
 Economic abuse (e.g. denying basic needs, financial control)
9.12.2 Who Can File an Application, When and Where?

Who:

 Victim of the violence

 Relative or next friend
 Police Officer
 Social Welfare Officer
 NGO representative
 Any person with leave of the court

When:

 At any time, even without prior reporting to the police.

Where:

 Subordinate Court (First or Second Class)

 High Court (for more serious relief or urgent ex parte orders)

9.12.3 Filing in Complaint Form and Affidavit

9.12.3.1 Criminal

9.12.3.1.1 Criminal Proceedings:

 Initiated by Complaint and Affidavit

 Processed by Police and DPP
 Tried under Penal Code or Anti-GBV Act
 Charges may include:
o Assault (s. 248 Penal Code)
o Rape or Defilement (s. 132–138 Penal Code)
o Threats, harassment (s. 90, 91 Penal Code)

9.12.3.1.2 Criminal Orders:

 Court may issue:

o Protection Order
o Interim Injunction
o Non-molestation Order
o Exclusion Order (perpetrator removed from residence)

These are often issued pending or during trial, even before final conviction.
9.12.3.2 Civil

9.12.3.2.1 Civil Proceedings:

 Application made by Complaint and Affidavit under the Anti-GBV Act.

 No need to prove criminal offence — must simply prove abuse on balance of
probabilities.
 Relief sought may include:
o Protection Order
o Occupancy Order (exclusive possession of matrimonial home)
o Custody or maintenance orders

Procedure governed by:

 Anti-GBV Act
 Subordinate Court (Civil Procedure) Rules
 Matrimonial Causes Act (if within ongoing divorce)

9.12.3.2.2 Civil Orders:

 Protection Order: Restrains abuser from any form of contact.

 Occupancy Order: Grants survivor exclusive right to occupy shared residence.
 Compensation Order: For physical or psychological harm.

Orders may be:

 Ex parte (emergency) or inter partes

 Enforced by police or sheriff under order of court

9.12.4 Filing in Affidavit in Response

 The Respondent may:

o File an Affidavit in Opposition
o Raise preliminary objections (e.g. abuse of process, lack of jurisdiction)
o Request variation or discharge of interim orders
 Must respond within the time directed by court — usually 7 to 14 days
 The Court may conduct an inquiry or full hearing before confirming, varying, or
dismissing the order.

Case: Namwila v Namwila (2022) – Husband successfully discharged interim protection

order after showing material non-disclosure by the applicant.