Introduction

This essay seeks to advise Lukundo on the true status of his marriage to Joanne as to
whether or not it still subsists after it was dissolved by the local court. It will do so by first
of all defining what marriage is and establishing whether or not the local court has
jurisdiction to dissolve a civil marriage. It will also offer advice to Kate on whether or not
Adam can be compelled to maintain her and her two children. In doing so, it will first of
all establish whether or not their marriage was legally recognized. Further, the essay will
offer advice to Nalu and Jack on how they can become parents under the laws of
Zambia.
Lukundo
Lord Penzance in Hyde v. Hyde and Woodhouse1 defined marriage as the voluntary
union for life of one man and one woman to the exclusion of others. Marriage is a
contract between two people of the opposite sex that allows them to enter into a legal
relationship by becoming husband and wife. In Zambia, the state give cognizance to two
types of marriages namely, customary and civil marriages. A customary marriage is one
that is premised on a set of rules and values obtaining in different parts of the country.
On the other hand, a civil marriage is that which is founded and solemnized in
accordance with the Marriage Act Chapter 50 of the Laws of Zambia. 2
Joanne and Lukundo married both in accordance with the customary marriage and later
on in accordance with the provisions of the Marriage Act. The jurisdiction of the Local
court in family law is restricted to cases governed by customary law as opposed to civil
law. The Local court acted ultra vires when it entertained this case and adjudicate on it
for it does not have jurisdiction to entertain the matter.3 The case of Sithole v Sithole4
cements the point. The couple were lawfully married under the customary law in 1959
but then in 1965, they had a second ceremony solemnizing their marriage in
accordance with the Marriage Ordinance. In this case, the judge had to choose which
one of the marriages between customary and civil should be recited in the decree for
both ceremonies had legal effect. In this case, the judge chose the second ceremony for
it governed the relationship between the parties in the sense that it made a previously
polygamous relationship monogamous. And so he recited the statutory ceremony in the
decree. Lukundos case has similar facts to the above mentioned case. The Local court
has no jurisdiction over this marriage because the potentially polygamous marriage was
converted into a monogamous one as a result of the second ceremony under the
Marriage Act. The action of the Local court was ultra vires their powers since they acted
1

[1866] LR 1 P D 130 at p. 133.

L. Mushota, Family Law in Zambia: Cases and Materials, UNZA Press, Lusaka, 2005.
3
C. Himoonga, Family Law in Zambia, Kluwer Law International, The Netherlands.
4
[1969] ZR 92 HC
2

in excess of their jurisdiction. The High court in Banda v Banda5 held that the effect of
section 12 (1) (c) of the Local Courts Act Chapter 29 was to exclude from the jurisdiction
of the Local courts all written laws, including the written laws of other countries except
for those which they had been specifically authorized by statutory order to administer.
Rule 4 (a) of the Local Court Rules restricts the Courts jurisdiction in matrimonial
causes to marriages contracted under customary law.6
Kate
Kate and Adam have been cohabiting without formalizing their relationship. This type of
marriage is not recognized by law in Zambia. It is either they marry in a customary way
or the statutory way. Neither of the two types of marriages apply to Kate and Adams
relationship. This case raises a wide variety of family law issues. Kate must be advised
as to:

The status of their relationship

Financial support for the children

In the case of Mafemba v Sitali7 it was held that a lengthy cohabitation does not
constitute a valid marriage. Mafemba and Sitali stayed together for 14 years and had
two children together. The length of the marriage notwithstanding, the relationship did
not culminate into marriage. For the relationship to translate into marriage, either
customary or civil, certain formalities will have to be followed. In the case of Kate and
Adam, they did not formalize their relationship in that Adam did not pay any dowry to the
parents of Kate nor did they go through any form of solemnization to legalise it. Since
this marriage is void ab initio, Kate cannot enjoy the benefits that go with the marriage
status. As was observed in the case of Francina Milner Joan v Anthony George
Hodgson,8 the facts in brief were that the parties had stayed together as husband and
wife for 10 years and was held that the parties were not husband and wife. Just as in
the case cited above, Kate and Adam have no evidence to show that they celebrated
their marriage. Mushota in her book, Family Law in Zambia: Cases and Materials, notes
that:
Today a common law marriage is one where two people from different
jurisdictions celebrate their marriage according to the law of the place of the
marriage (lex loci celebrations), where formal requirements of a valid marriage
according to English Law are not fulfilled, for instance celebrating a marriage
without a priest, or a person with holy orders.
5

[1975] ZR 123.
[2009] HP A54.
7
[2007] ZR 215.
8
[2007] HK 433.
6

In the case of Kate and Adam, there was no celebration of marriage of any kind at all
and their union cannot be presumed to have taken place under common law. Like it has
already been mentioned, in Zambia there are only two types of marriage 9 that are
recognized and practiced, namely statutory marriage and customary marriage. No
length of cohabiting constitutes a valid marriage. Having established that there was no
marriage between Kate and Adam, Kate is not entitled to benefit from Adam. Section 38
of the Marriage Act does not bar the contracting of common law marriage whilst being
married under the Act or under customary law, it stands to reason therefore, that
common law marriage is not recognised in Zambia. Kate cannot invoke any
maintenance order against Adam.
Maintenance of Children
The Legitimacy Act, Chapter 52 of the Laws of Zambia, in section 4 (1) legitimises
children born of a void marriage or outside wedlock as long as both or either of the
parents reasonably believed that their marriage was valid. Furthermore, Article 2 (1) of
the Convention on the Rights of the Child provides that each State shall respect and
ensure that each child within their jurisdiction shall enjoy the rights enshrined therein
without discrimination of any kind irrespective of the childs birth or other status. Kate
can through a childs next friend apply to the court for an affiliation order as is provided
for in section 5 under conditions stipulated in section 6 (1) (a), (b), (1) and (2) of the
Affiliation and Maintenance of Children Act of the Laws of Zambia. This finds its
authority in the case of M.A.S v. K.M.10 The mothers evidence must corroborate in the
material particular that the said man is the father of the illegitimate child. Only then can
the court grant an affiliation order. In the above mentioned case, the plaintiff filed a
complaint before the magistrates court claiming that the said man is the father of the
child. To cement her claim she produced a Record of Birth from the University Teaching
Hospital. Pursuant to the requirements in section 6, the court adjudged the accused
man to be the putative father of the child and made an order that he be paying the
mother of the child or any other person named in the order, a weekly sum not exceeding
five shillings for the maintenance and education of the child and any other incidentals
that may arise in the lifetime of such a child.11
Nalu and Jack
The Adoption Act, Chapter 54 of the Laws of Zambia in sections 3 (1), (2) and 4 (1) (a),
(b) and (c) provides for an order to be made on the application of two spouses
authorizing them jointly to adopt a child. Pursuant to such provisions, Nalu and Jack can
take advantage of them and become parents. Nalu and Jack will have to fully
9

Marriage Act, Chapter 50 of the Laws of Zambia.

M.A.S. v K.M., 1979 (unreported)
11
L. Mushota, Family Law in Zambia: Cases and Materials, Lusaka, UNZA Press, 2005.
10

understand all the necessary requirements relating to adoption and obtain the
necessary consents from the natural parents of the prospective adoptees and the
relevant authorities as provided for in sections 6 (1), (2) and 14 (1), (2) and (3) to avoid
what transpired in the case of Michael Andrew Macgarry v. Eric Victor Macgarry.12
The adoptees did not fully understand the implications of getting adopted. The parents
did not intend to give up their parental rights. Therefore, due diligence should be done
so that Nalu and Jack can avoid such an incident. Immediately an adoption order has
been granted by a court of competent jurisdiction, under section 11 (1), it is a
prerequisite that it be registered in the Adopted Childrens Register by the Registrar
General. Having done all this, section 14 (2) provides that adoptive parents shall have
custody, maintenance and access to children and the children shall likewise view the
adoptive parents with respect as though they were their natural parents. 13
Conclusion
Lukundos marriage is still subsisting because the court that dissolved it had no
jurisdiction to entertain the matter. Kate cannot claim any maintenance from Adam for
her own self for their marriage is void ab initio. She can however, apply to the court for
an affiliation order to compel Adam for the maintenance of the children. Nalu and Jack
can become parents under the laws of Zambia by way of making an application for an
adoption order and following through all the necessary legal requirements.

12
13

[1999] HP 374
L. Mushota, Family Law in Zambia: Cases and Materials, UNZA Press, Lusaka, 2005.

Statutes
Adoption Act, Chapter 54 of the Laws of Zambia.
Affiliation and Maintenance of Children Act Chapter 64 of the Laws of Zambia.
Legitimacy Act, Chapter 52 of the Laws of Zambia.
Marriage Act, Chapter 50 of the Laws of Zambia.

Case Law
Banda v. Banda (1975/ZR/123).
Francina Milner Joan v. Anthony George Hodgson (2007/HK/433).
Godwin Mumba v. Mary Goma Mumba (2009/HP/A54).
Hyde v. Hyde and Woodhouse (1866 LR 1 PD 130 p. 133).
M.A.S v. K.M. (1979 unreported).
Mafemba v. Sitali (2007/ZR/215).
Michael Andrew Macgarry v. Eric Victor Macgarry (1999/HP/374).
Sithole v. Sithole (1969/ZR/92/HC).

Bibliography
Himoonga, C., Family Law in Zambia, Kluwer International, The Netherlands.
Mushota, L., Family Law in Zambia: Cases and Materials, Unza Press, Lusaka, 2005.