THE SUBJECT MATTER AND SCOPE OF FAMILY LAW

1. GENERAL
Section 22(1) of the Republic of Malawi Constitution, 1994 states that the
family is the natural and fundamental group unit of society. It further states
that the family is entitled to protection by society and the state. This provision
does not state what constitutes a family in Malawi.
However, for the purposes of family law, the family may be defined as a basic
social unit which consists normally of a husband, a wife and their children or
issue. It is not essential that all these people should be members of family at
the same time. A husband and wife can be considered as constituting a family
even in the absence of children. The absence of children may be due to the
following factors:

i. Failure to conceive due to barrenness

ii. Death of children
iii. Children are grown up and have left the home;
iv. Children are not born yet
v. Choice of the couple not to have children.

There are instances where you have a one parent families due to the following
factors:

i. death of one parent

ii. divorce or separation or
iii. having children out of wedlock.
There are also instances where you have a family in which children are living
in the absence of parents due to death of the parents or mere abandonment.
Such families may also be known as child headed families.

Family law in Malawi is mostly interested in the relationships that arise from
these social units.

However, there are larger groups of blood relations which are considered as
family although they fall outside the units outlined above. This is common at
customary law. Such a family is called an extended family.

A person will regard as members of his family, dependants that are living
under his household. These may be nephews, sisters, brothers or adopted
children. For instance, at Chewa customary law, a person regards as his
‘children’ all the issue of his sister or sisters. He has the prior right to
determine their circular and religious education. He also has the exclusive
right to consent to their marriages and to accept marriage dowry. In issues of
succession to some hereditary titles such as chieftaincy or village
headmanship, it is the maternal nephews that will take over. However, it
should be noted that even under Chewa or other matrimonial societies, the
position is fast-changing. The father is increasingly given authority to
determine the affairs of his own children; including their education and
marriage.
 2. THE SCOPE OF FAMILY LAW

a. Husband and Wife

Family law is chiefly concerned with the legal relationship between husband
and wife. The contract of marriage and all rights and obligations arising
therefrom are studied e.g. the right of consortium, exclusive rights to sexual
intercourse e.t.c.

Family law does also involve a study of the annulment and breakdown of
marriage.

b. Parent and child

Family law also involves a study of the legal rights and duties of parents and
their children. It also involves a study of adoption of children under which a
child ceases legally to be a member of one family and becomes a member of
another. Guardianship is also covered under this scope. This is where a
person is made to assume parental rights and obligations over another person
without the latter ceasing to be legally a member of his own family.

Affiliation proceedings, a person is adjudged to be the father of a child born

out of wedlock, are also within the ambit of family law.

c. Property and Finance

There are some rights in property that are created and/or affected by
membership of the same family. For instance, it is a rule of matrilineal
customary law that a husband must build a house for his wife at her home.
This house belongs to the wife even after the dissolution of the marriage.
Likewise, there is a duty to support owed by members of the family to each
other. This may involve some financial support or some other none-pecuniary
forms of assistance. At customary family law, neglect of one spouse by the
other or sheer laziness may be the reason for the termination of marriage.

However, there is no general duty on the part of the children to support their
parents.

3. CLASSIFICATION OF FAMILIES

a. Nuclear Family

This consists of a husband, wife and children. It may also consist of husband
and wife only or one parent and children only. These families mostly are borne
out of monogamous marriages, having children out of wedlock, death of
spouses or death of parents.

b. Extended Family
This consists of husband, wife, children and other dependants. These
dependants may be nephews, nieces, brothers, sisters, cousins, or others.

Relationships that arise within polygamous families may also be considered

extended families.
It must be pointed out that both nuclear families and extended families may
consist of members of the family who are not living under the same roof. In
modern days there are situations where the husband and the wife live in
different cities, or where children are attending academic institutions
elsewhere. They remain part of their families regardless of the physical
distances separating them.

On the other hand, a person may be living with people who have no blood ties
to them. Such cannot be strictly considered as family unless there has been
a formal adoption process severing ties from their original families and joining
them to the new family.

4. COURTS ADMINISTERING FAMILY LAW

There are three tiers of courts in the Malawi Judicial System. They are the
same courts the administer family law in the country. The following are the
courts in descending order:

a. Malawi Supreme Court of Appeal

This Court has appellate jurisdiction only. It is established under s.104 of the
Constitution of the Republic of Malawi. Section 21 of the Supreme Court of
Appeal provides that an appeal shall lie to the Court from any judgment of
the High Court or any judge thereof in any civil cause or matter. Since family
cases are civil case it means that the Supreme Court has jurisdiction to hear
all family law cases that are appealed to it from the High Court.

Appeals do not lie to the Supreme Court however in respect of an order

absolute for the dissolution or nullity of marriage in favour of any party who
having had time and opportunity to appeal from the decree nisi on which the
order was founded has not appealed from that decree.

The Court has power, on appeal to confirm, vary, amend or set aside the
judgment of the High Court – s 22 of the Supreme Court of Appeal Act.

b. High Court
This Court is established under s.108 of the Constitution. Under the same
provision, the High Court has unlimited original jurisdiction to hear and
determine any civil or criminal proceedings under any law. This means, in
general, that the High Court can hear and determine any family disputes
arising under family law in Malawi. These include determination of validity of
marriage and dissolution thereof, custody of children, guardianship,
maintenance, adoption and property distribution.
The MDFRA does not give specific jurisdiction to the High Court. Therefore,
all matters can potentially be commenced in the High Court subject to what
will be mentioned below. Further to this section 39(2) of the Courts Act deals
with civil jurisdiction of the Magistrate Court. Under that provision the
Magistrate Courts have jurisdiction to deal with matters wherein the validity
or dissolution of marriage under customary law is in issue.

It means that any family law matter that is based on any law other than
customary law will be dealt with in the High Court. It must be noted that
there is no provision under the MDFRA that precludes the High Court from
hearing and determining family law cases under customary law. See Jamal v
Jamal Matrimonial Cause No.1 of 1989, HC (Unrep). However, good case
management means that all family law matters based on customary law must
be commenced in the Subordinate Courts and only go to the High Court on
appeal.
Section 110 (1) of the Constitution creates courts that are subordinate to the
High Court and whose decisions are appealable in the High Court. Section 20
(1) of the Courts Act states that an appeal shall lie to the High Court from a
subordinate court from all final judgments and interlocutory judgments or
orders made in the course of any civil action or matter before a subordinate
Court.

Section 22 of the Courts Act as to the mandate of the High Court when dealing
with appeals. Under that section the High Court has the following powers—
(a) to dismiss the appeal;
(b) to reverse a judgment upon a preliminary point and, on such reversal, to
remit the case to the subordinate court against whose judgment the
appeal is made, with directions to proceed to determine the case on its
merits;
(c) to resettle issues and finally to determine a case, notwithstanding that the
judgment of the subordinate court against which the appeal is made has
proceeded wholly on some ground other than that on which the High
Court proceeds;
(d) to call additional evidence or to direct the subordinate court against whose
judgment the appeal is made, or any other subordinate court, to take
additional evidence;
(e) to make any amendment or any consequential or incidental order that
may be just and proper;
(f) to confirm, reverse or vary the judgment against which the appeal is made;
(g) to order that a judgment shall be set aside and a new trial be had;

Section 26 of the Courts Act gives the High Court general supervisory powers.
This is when the High Court, when it appears to be in the interests of justice
calls for the record of a matter that is before the subordinate court to give
directions as to the further conduct of the matter.

c. Subordinate Courts
The Courts Act cap. 3:01 of the Laws of Malawi constitutes four grades of
subordinate Courts. These are:
(a) Courts of Resident Magistrates
(b) Courts of Magistrates of the First Grade
(c) Courts of Magistrates of the Second Grade.
(d) Courts of Magistrates of the Third Grade.

All subordinate courts are courts of record under s.37 of the Courts Act. They
are also given constitutional force under s.110 of the Constitution of 1994.

Under Section 39 of the Courts Act, subordinate courts have jurisdiction only
in matters where the marriage is based on customary law. They also have
jurisdiction in matters related to adoption of children where the applicants
are Malawian.

They also have jurisdiction in affiliation proceedings and in matters related to

the welfare of children under the Child Care, Protection and Justice Act
CCPJA. Under the CCPJA special Courts have been created to deal with child
justice matters and they are called Child Justice Courts.

SOURCES OF FAMILY LAW

Introduction

Section 200 of the Constitution provides as follows: Except in so far as they

are inconsistent with this Constitution, all Acts of Parliament, common law
and customary law in force on the appointed day shall continue to have force
of law, as if they had been made in accordance with and in pursuance of this
Constitution.

Provided that any laws currently in force may be amended or repealed by an

Act of Parliament or be declared unconstitutional.

This section was included as a transitional provision in the Constitution in

1994. But what this meant is that what were regarded as the sources of law
in 1994 continue to have force unless they are repealed or until such a time
when they will be repealed.
From the foregoing one can conclude that there are three major sources of
law (including family law) in Malawi. These are statutory law, customary law
and common law.

We also need to take note of the fact that, all these laws are subject to the
Constitution, thus all laws whether statutory, customary or common law,
that are inconsistent with the provisions of the Constitution are invalid to the
extent of that inconsistency.

We need to further take note that even where the law is clearly inconsistent
with the Constitution it will have to be obeyed or followed until such a time
that the law is declared unconstitutional.

Parliament retains the power to make the law. Therefore, it can repeal existing
law either expressly or impliedly by enacting a law that is inconsistent with
an existing law.

As we will see later, it can also be argued that, although not expressly
recognized by the Constitution, religious law may also be considered as a part
of family law in so far as it is not inconsistent with the Constitution.

The Constitution

Since the Constitution is the supreme law (section 199) and all other laws are
subservient to it we recognize the constitution separately before we examine
the specific sources of law.

The relevant provisions are ss.22, 23 and 24.

Section 22 of the Constitution recognizes family and marriage. Subsection 1

recognizes the family as the natural and fundamental group unit of society.
The Constitution goes on to guarantee the protection of the family by the
society and the State.

All men and women have the right to marry and found a family under
subsection 3. No one shall be forced to enter into marriage. Only people over
the age of 18 can enter into marriage nor shall a person be prevented from
entering a marriage.

The rights of children are stipulated under s.23. It is stated that all children,
regardless of the circumstances of their birth, are entitled to equal treatment
before the law. This means that illegitimacy is not a bar to the enjoyment of
child rights under Malawian law.

The most important aspect of s.24 is that it outlaws discrimination of women

on the basis of gender. Women are given the same rights as men in civil law.
They are given the right to acquire and retain custody, guardianship and care
of children. They are given an equal right in the making of decisions that affect
the upbringing of their children. Likewise, on the dissolution of the marriage,
women are entitled to a fair disposition of property that is held jointly with a
husband. They are entitled to a fair maintenance by the former husband.

In as far as the law is concerned, constitutional provisions are for guidance

on the general framework of the law they ordinarily do not constitute
exhaustive prescriptions or principles of the substantive law. When you wish
to look at the day to day application of the law you will need to look at the
statutes, common law and customary law.

Statutory Law

There are a number of statutes that are relevant to the study and practice of
family law. The most important ones are the following:

1. The Marriage, Divorce and Family Relations Act (Cap 25:01 of the Laws of
Malawi)

3. Adoption of Children Act (cap. 26:01 of the Laws of Malawi)

4. Child Care Protection and Justice Act (cap. 26:03 of the Laws of Malawi)

The Marriage, Divorce and Family Relations Act 2015

This is the main statute that regulates the celebration, regulation and
dissolution of marriage in Malawi. It has most all the rules of law that must
be followed by the intending spouses prior and during the celebration of their
marriage. The Act replaces and consolidates provisions of the Marriage Act
of 1902, the Divorce Act of 1905, the African Marriage (Christian Rites)
Registration Act of 1923, Asiatics (Marriage, Divorce and Succession) Act of
1929, Married Women (Maintenance) Act of 1948.

While this Act was meant to be a comprehensive law on all issues concerning
marriage, divorce and family relations, it can be said that the Act left out some
important aspects of the law. For example, the Act recognizes customary
marriages and religious marriages. But the Act does not comprehensively deal
with the relations of the parties in these types of marriages. Although some
provisions can be said to be of general application to all types of marriages,
there are some aspects of these marriages which have traditionally been dealt
with using custom or religion on which the Act is silent. For example,
dissolution/separation. It seems the rules on divorce or separation fit more
with civil marriages and not customary or religious marriages. For this
reason, customary law and religious law is still relevant in the administration
of family law.

Customary Law
This governs all aspects of family law in those marriages that are contracted
in accordance with customary or traditional law. To be more accurate we may
have to call these customary laws. I say this because there is no single set of
custom or customary law. Each ethnic group has its own customs governing
the family. This view is supported by the fact that s 26 of the MDFRA provides
that subject to ss 14 and 15 the procedures preceding the celebration of a
religious or customary marriage shall be governed by the customs or rites
which are usual among the ethnic group, religion or sect under which the
marriage is celebrated.

The most important fact to note here is the fact that there are two main
categories of customary law into which all the ethnic laws can be divided –
subject to local variances. These are the Matrilineal system customary law
and patrilineal system customary law.

Apart from the general rules that are found in the MDFRA there are specific
rules that apply to customary marriages regarding the entry into marriage
and rules after the breakdown of marriage. These are not spelt out in the Act.

It can also be argued that the customs which are valid as a law in this country
are only those that were so recognized before 1994 and have not been
repealed or declared unconstitutional. This is so because under the
Constitution Parliament is the only authority that has the power to make the
law and no one else.

Except those customary rules that have already been accepted as part of the
law in this country, all other rules of custom have to be proved as a matter of
fact.

Religious Law

Some marriages are arranged in accordance with religious law only. This is
particularly the case with marriages among the Asian community in Malawi.
These marriages are sometimes arranged in accordance with Muhammadan
law of the Sunni sect; or the Muhammadan law of the Shia sect.

It follows that the rights and obligations that arise from these marriages,
including their dissolution and legal custody of children, are governed by the
relevant religious law except where the religious law is contrary to the
provisions of the Constitution. Courts of law in this country have upheld the
validity of these religious marriages. They have also upheld the summary
nature in which these marriages may be terminated by the parties
concerned. See Lambat v Omar 1964-66 ALR Mal 511.

However, in as far as custody of children and distribution of matrimonial

property are concerned, they remain subject to the provisions of the
Constitution and the MDFRA and the Child Care, Justice and Protection Act
(CCPJA).

The Common Law

The MDFRA has mostly codified common law family law rules although there
may be some rules that are not codified and can only be traceable to common
law. Therefore, since the common law is a source of law in this country, these
rules of family law can be applied by the courts of law independently of (or in
addition to) the other rules of law that are contained in national legislation.

RESIDENCE AND DOMICILE

Introduction

Residence and domicile are relevant in family law for a number of reasons. In
the first place, it may be necessary to refer to residence and/or domicile of
the intending spouses just before the celebration of the marriage. This may
be so in order to comply with certain formalities of the marriage or to ascertain
the capacity of one or both of the intending spouses. Likewise, residence
and/or domicile may be necessary at the time when the marriage is about to
be dissolved by a court of law. It may also happen that certain rights or
obligations of the issue of the marriage have to be assessed taking into
account their residence or domicile. This might in turn require an
examination and proof of the residence or domicile of one or more of the
parents. It is therefore necessary to outline the main elements of residence
and domicile in family law. In particular, the discussion should focus on the
circumstances in which the law of marriage or that of divorce requires one or
both of the parties to be resident or domiciled within the jurisdiction.

Residence

Residence is relevant in family law especially in the preliminary stages of the

marriage. A good example is when it comes to the publication of notice of
marriage. Persons that are in the process of getting married must normally
give notice of intention to marry to the registrar of the district in which they
reside and/or intend to have their marriage celebrated - Section 24 of the
MDFRA.

The meaning and scope of residence was discussed by the court of appeal in
Fox v Stirk [1970] 3 All ER 7. It was generally agreed that to reside means to
dwell permanently or for a considerable time; to have ones settled usual
abode, to live in or at a particular place.” In his judgment Widgery LJ stressed
the need for a degree of permanence. He defined residence as ‘the place where
a man is based or where he continues to live, the place where he sleeps and
shelters and has his home.’ This means that residence in the context of
family law implies (a) physical presence in a particular place and (b)an
intention to remain in that place for more than a short period of time. There
need not be an intention to remain in the place permanently or indefinitely.
The real test is whether a particular person is based at the place in question
rather somewhere else. It is equally true that a person can be regarded as
having two or more places of residence. He can reside in both or all of them,
or alternatively in each of them at different times.

In Fox v Stirk [1970] 3 All ER 7, it was held that students at the University
of Bristol who lived in Hall of residence during term time were resident there
for the purposes of voting in local elections. It can be said that they were also
resident at their parent’s homes if that is where they spent their
vacations. See also Lavene v IRC [1928] AC 217; Morgan v Murch [1970] 2
All ER 100.

The importance and relevance of residence in a particular marriage district is

further reflected in s.24 of the Act. It is here provided as follows: - The
Registrar who receives the notice under section 19 shall at any time after the
expiry of twenty-one days and before the expiry of three months from the date
of the notice, issue a permit in the Form D in the first schedule if he is
satisfied that- (b) one or both of the parties has or have been resident within
his district at least fifteen days preceding the granting of the permit…” A
marriage cannot be celebrated without the Registrar’s permit- s 41.

Domicile

The concept of domicile implies a person’s permanent home; a legal system

in which he lives permanently. Domicile is not the same thing as nationality.
A person can only be domiciled in a place that has a separate legal system.
Therefore, a person cannot be domiciled in the UK; he must be domiciled in
England or Scotland; areas that have different legal systems. It is equally true
that a person may be domiciled in England even if he is not a citizen of the
United Kingdom.

The reason is that in family law, many rights and capacities are governed by
the lex domicilii (Law of domicile). Therefore, it is essential that domicile itself
should be defined by reference to a legal system. It is important to note that
Malawi constitutes one legal system. Hence, the concept of domicile attaches
to the whole country. A person acquires a Malawi domicile. His rights and
capacities are assessed by reference to the Malawi legal system. A person’s
domicile is relevant in family law for at least two reasons.
(a)The first one is that capacity to marry may depend on one’s own law of
domicile. See, Sottomayor v De Barros (1877) 3 PD 1 Bastable v
Bastable Pugh v Pugh [1951] 2 All ER 608 R v Brentwood Superintendent
Registrar of Marriages ex parte Arias [1968] 3 All ER 279.
(b) The second one is that the jurisdiction of the courts over a particular
matter may depend on the domicile of the parties. For instance, under s.60
of the MDFRA, a court cannot make a decree of dissolution or nullity of
marriage unless either the petitioner is domiciled in Malawi at the time the
petition is presented or the marriage was celebrated in Malawi. There are
three kinds of domicile that are normally discussed in family law. These
are

(a) domicile of origin

(b) domicile of choice and

(c) dependent domicile.

(a) Domicile of Origin

This is normally, though not always, a legal system in which a person is born
and has his permanent place of abode. The acquisition of domicile of origin
does not depend on the intention of the person on whom it is conferred. It
attaches to every person upon birth. Likewise, if a person has no other
domicile at any given time, his domicile of origin automatically revives. No
person can have more than one domicile at any one time. The domicile of
origin of a legitimate child is that of his father at the time of his birth.
Likewise, the domicile of origin of an illegitimate child is that of his mother at
the time of his birth. See, Henderson v Henderson [1965] 1 All ER 179; Udny
v Udny (1869) LRT Sc of D 441; Alcock v Alcock ; Whitelock v Whitelock

(b) Domicile of Choice

Any person over the age of 18years other than a married woman may acquire
a domicile of choice. This can only happen animo et facto; that is, the relevant
individual must have an intention to remain in his new domicile permanently
and that he must take up residence there. See Re Flynn [1968] 1All ER;
Qureshi v Qureshi [1971] 1 All ER 325

A person can lose his domicile of choice. This can happen if he leaves the
relevant jurisdiction and has an intention never to return to it. When a person
loses his domicile of choice, his domicile of origin revives. This will remain his
domicile until acquires a new domicile of choice.

(c) Dependent Domicile

At common law, a married woman cannot acquire a domicile of choice.
Likewise, a minor cannot acquire his own domicile of choice. In either of these
cases, the relevant domicile depends, at all times, upon that of another
person.

(i) Married Women

At common law when a woman gets married, she acquires the domicile of
her husband. She keeps this domicile throughout her coverture. See Harvey
v Farnie (1882) 8 App. Cas. 43. This will not happen if the marriage is void.
However, if it is only voidable she will retain her husband’s domicile until the
marriage is annulled. See De Reneville v De Reneville [1948] 1 All ER 56, 100.
She is incapable of acquiring a domicile of choice even though the spouses
separate by agreement or under a decree of judicial separation. In cases where
the husband deserts his wife and acquires a fresh domicile abroad, her
domicile will automatically follow that of the husband. See H v H [1928] p.
206 Attorney General for Alberta v Cook[1926] AC 444

However, once the marriage has been terminated, a woman is free to acquire
her own domicile of choice. Nevertheless, until she does so, she is presumed
to retain her former husband’s domicile. See, Re Wallack [1950] 1 All ER
199 Cf. Re Scullard [1956] 3 All ER 898; See further, Graveson, ‘Domicile
on the Ending of Dependence’ 6 ICLQ1

(ii) Minors

It is generally accepted that a minor is incapable of acquiring a domicile of

his own. It follows from this that the domicile of a legitimate child is that of
his father, while that of an illegitimate child is that of the mother. See
Henderson v Henderson [1965] 1 All ER 179 [1967]p.77.

At common law, the only exception to this rule is that a girl who gets married
while a minor ipso facto acquires the domicile of her husband. At common
law, a minor male child, even if married, could not acquire a domicile of choice
separate from that of his father. There is some authority to the effect that
after the death of a legitimate child’s father, his domicile will change with that
of his mother. This will be lawful if the change of domicile is in the best
interest of the child and that the mother opts to exercise the change. See,
Potinger v Wightman (1817) 3 Mer. 67 Cf Re Beaumont [1893] 3 Ch 490

It would also appear that a divorced woman who is given custody of a

legitimate child can change his domicile. This may happen, for instance, if
she herself acquires a new dependent domicile on remarriage.

Conclusion
In family law, a number of rights and obligations attach to an individual by
virtue of his residence or domicile in a particular legal system. Under
Malawian law, capacity to contract a monogamous married is governed by the
domicile of the parties concerned.

Likewise, the jurisdiction of the court to dissolve a monogamous marriage

depends on the domicile of the petitioner. However, rules relating to
domicile are bound to be different from one legal system to the other. By way
of example, in England, the law has now changed. A married woman does not
automatically acquire the domicile of her husband. She may opt to acquire it
or to retain her own domicile of origin. These new changes do not apply to
Malawi.

MARRIAGE
Introduction

Marriage is a universal institution and a fundamental unit of every society. It

is recognized and respected in all civilized societies. Marriage is the basis of
social order in the world as well as the basis of a family.

It creates a high status as between the parties: the status of being married. A
person is either a husband or a wife because of marriage. At any rate, children
can either be legitimate or illegitimate depending on whether or not there has
been a valid marriage between their parents. It is therefore important to study
the rules that govern the contract of marriage.

These are the rules that govern the establishment of a valid marriage; the
rights and obligations that emanate from the marriage relationship; the rules
relating to the dissolution of a marriage and the rules that govern the
annulment of invalid marriages.

Definition of Marriage
There is no statutory definition of marriage in Malawi. In fact, even the
common law definition is based on the understanding of marriage by the
western societies of old – Hyde v Hyde & Woodmansee. Thus the definition fit
well with that understanding and could not be validly applied to Malawi (or
Nyasaland as we were called during colonial rule). Even the western
understanding of marriage has now drastically changed- in England and
Canada they recognize marriages between same couples by statute.

The common law definition of marriage is found in Hyde v Hyde and

Woodmansee (1866) LR 1 P & D 130. In this case, Lord Penzance said: - “I
conceive that marriage as understood in Christendom, may…be defined as
the voluntary union for life of one man and one woman to the exclusion of all
others.”

However, in more general terms, as understood in this country, marriage can

be said to be a legally recognized union of a man and a woman for life – see
section 14 of the Marriage, Divorce and Family Relations Act.

This definition has in it two distinct meanings of marriage. The first one is the
ceremony by which a man and a woman become a husband and wife
respectively. The other one is the act of marrying and the relationship that
exist between a husband and his wife. This distinction largely corresponds
with the dual aspect of the marriage institution: that of a contract and that
of status.

Marriage as a Contract

Marriage is an agreement by which the parties enter into a certain legal

relationship with each other. This relationship creates and imposes certain
mutual rights and duties. In this sense, marriage resembles a commercial
contract in many ways. It presents similar problems as those that are
encountered in a commercial contract; such as those relating to form and
capacity. Likewise, a contract of marriage may be void or voidable.

However, a marriage contract is unlike a commercial contract in many

respects. It is a contract sui generis. In particular, the following dissimilarities
between the two contracts may be noted:-

a) Persons may enter into valid commercial contracts even if they are closely
related by blood. They can also do so even if they are of the same sex. These
people cannot enter into a valid contract of marriage.
b) A marriage contract is usually preceded by certain formalities such as the
publication of banns. These formalities are normally not necessary for the
validity of a commercial contract. Even where certain formalities may be
required to enter a commercial contract, they do not normally affect the
validity if they are skipped.
c) It is not always necessary for marriage payments (consideration) to be made
in order to validate a marriage. A commercial contract requires some kind
of consideration (or payment) in order for it to be valid in law.
d) The grounds on which a marriage contract may be void or voidable are for
the most part are different from those on which other contracts may be void
or voidable. For instance, a marriage contract will be voidable if there is
willful refusal by one party to consummate it. A commercial contract does
not require consummation in order for it to remain valid.
e) Unlike other voidable contracts, a voidable marriage cannot be declared
void ab initio by repudiation by one of the parties. It may be set aside only
by a decree of nullity pronounced by a court of competent jurisdiction.
f) A contract of marriage cannot be discharged by agreement, frustration or
breach. A part from death, it can only be terminated by a decree of divorce
pronounced by a court of competent jurisdiction. On the other hand, a
commercial contract can be discharged by the agreement of the parties. It
can also be set aside as a result of frustration or breach.
g) A commercial contract can be made on any terms provided that they do not
offend against rules of public policy or statutory prohibitions. In addition,
whatever agreement they may arrive at cannot as such confer rights or
impose duties on any other person. On the other hand, the fact that
marriage creates a status limits the parties’ powers to make their own
terms. The contract also affects their legal rights and duties with respect to
other persons, such as the inability to contract further valid marriages
during the subsistence of the current contract.
h) The rights of the spouses are very much fixed by law than by mutual
agreement. Some of the rights under a marriage contract cannot be
contracted out; such as the right for a wife to sue for maintenance in certain
cases of divorce. Likewise, a contract of marriage may affect several other
rights of the parties; such as domicile, nationality, residence or succession
to property. See, Mordant v Mordant [1870] LR 2 PD 109 Moss v Moss
[1897] p.263

Marriage as Creating Status

The contract of marriage creates a status: the status of belonging to a

particular class of people called ‘married persons’ to whom the law assigns
certain legal capacities or incapacities. The spouse’s rights and duties are
pre-determined by law. For instance, there is the right to consortium and the
corresponding duty to cohabit. Although some of these rights may be varied
by consent many of them cannot be changed at will. A husband has an action
against any third person who by committing a tort against his wife deprives
him of her consortium.

Classification of Marriages
Section 12 of the Marriage Divorce and Family Relations Act, Cap 25:01 of the
Laws of Malawi recognizes four types of marriages.

a. Civil Marriage
b. Customary Marriage
c. Religious Marriage
d. Marriage by repute or permanent cohabitation
Each of these types of marriage have their own requirements for them to be
recognized as valid.

A. Civil marriage

The main feature of this type of marriage is that it is strictly monogamous in

nature, that is a person can only have one spouse at a time, see Section 18 of
the Act. This feature is an influence from the common law – Hyde v Hyde.

Therefore, a person who contracts a civil marriage cannot lawfully contract

another marriage while the first one is still subsisting. Thus under section 17
of the Act a person entering this type of marriage has to make a declaration
before a registrar of marriages the s/he is single – see also ss 18 and 24. No
payments are required by one intended spouse to the other spouse or his or
her family to make this marriage valid.

Therefore, in as far a civil marriage is concerned four conditions must be

satisfied.

1. Entry into marriage must be voluntary as between the intending spouses.

Where it is proved that one or both of the parties did not consent to the
marriage, the court may annul it. S. 77 of the MDFRA. See also Buckland
v Buckland [1967] 2 All ER 300

2. The marriage must be for life. This means that marriage can only be
determined by death or by a court of competent jurisdiction. See
Nachimson v Nachimson [1930] P. 217

3. It must be heterosexual in nature. Therefore, same sex marriages are

excluded. S. 14

4. It must be monogamous. Neither the husband nor wife can contract

another valid marriage during the subsistence of the original union - ss 24
and77 See Baindail v Baindail [1946] 1 All ER 342

B. Customary Marriage

Section 12 (b) recognizes customary marriages. This is a marriage celebrated

in accordance with rites under customary law of one or both of the parties to
the marriage. A vast majority of marriages in this country are contracted in
this manner.

Due to the fact that traditions are different in different parts of the country, it
means that, there are many customs which govern the contract of marriage.
However, there are two broad categories of customary marriages:

a. Matrilineal marriages
In this type of marriage, the man leaves his home village and follows
the woman to her home village. The residence in this marriage therefore
is matrilocal i.e. the presumed matrimonial home is located in the wife’s
home village.

Most ethnic groups who practice this type of marriage do not require
payments by one intended spouse to the other spouse’s family see
Mkandawire v Mkandawire, Civil Appeal Case No. 35 of 1985 NTAC
(unrep). Small gifts are however given especially from the male family
to the female family.

Children born out of this type of marriage are said to belong to the
maternal side of the family. Consequently, they cannot strictly speaking
inherit anything from their father’s side of the family. Traditionally
these children were the responsibility of their uncle and they could only
inherit from the uncle.

It must be mentioned that this is a matter of familial affiliation and

under the current law it does not influence the decision of the Court as
to who to award custody of the children in the event of a divorce.
However, it can arguably be stated that regardless of who gets physical
custody, legal custody remains with the mother or uncle of the children.

Changes in the social set up has necessitated statutory reform in the

law of inheritance such that now children inherit their father’s property
as a matter of right. However, statutory law has not changed titular
inheritance rules – i.e. inheritance of chieftaincy and inheritance of
customary land that is deemed to belong to the father’s family. It may
be argued however, that where the family, or clan gifts what would
ordinarily be customary land to a male person belonging to the clan,
that person’s children would be entitled to inherit such land.

The practice is prevalent from the southern part of Dwangwa River to

the northern part of Chikwawa district.

b. Patrilineal marriage systems

In this type of marriage, the woman leaves her home village and follows the
man to his home village. The residence in this marriage therefore is patrilocal
i.e. the presumed matrimonial home is located in the husband’s home village.
Payment of dowry or lobola or malobolo is essential in this type of marriage.
See, See Tembo v Chirwa Civil Appeal Case No. 96 of 1977, NTAC, Unrep.
Mwangobola v Mwangobola Civil Appeal Case No. 4of 1980, NTAC
(unrep). Traditionally payment would be in form of cattle. However due to
changes in the economy of the country many people now accept cash.

Children born out of this type of marriage are said to belong to the paternal
side of the family. These children are the responsibility of their father. Again
this is a matter of familial affiliation and under the law it does not influence
the decision of the Court as to who to award custody of the children in the
event of a divorce.

Traditionally, only male children would inherit their fathers land and titular
positions. Changes in the social set up has necessitated statutory reform in
the law of inheritance such that now all children regardless of their gender
can inherit their father’s property as a matter of right. However, statutory law
has not changed titular inheritance rules – i.e. inheritance of chieftaincy and
inheritance of customary land. For these only male children are entitled to
inherit. However, a father or mother can gift a parcel of customary land over
which they have rights to a daughter, and such daughter will be entitled to
continue to use such land even after the death of the parent and she can pass
good title to her heirs.

This type of marriage is prevalent in the whole of northern Malawi up to

Dwangwa River in the Central Region and in the Lower Shire among the Sena-
Mang’anja ethnic groups. In the Central Region Districts of Mchinji, Ntcheu
and Dedza it is practiced among the ruling Ngoni families.

Common features among customary marriages

i. All customary marriages are said to be potentially polygamous - see
Kandoje v Mtengerenji 1964-66 ALR Mal 558 per Cram J at p 559. That
is to say, a husband is entitled to marry more than one wife. The only
restriction on a man’s right to marry more than one wife is the consent
of the older wife or wives. It must be pointed out that the MDFRA still
recognizes this position as it leaves the decision to decide which law to
follow to the parties themselves. Further, unlike the requirement to
declare that a person is single in a civil marriage, the same requirement
does not apply when one is contracting any other form marriage.

The Kandoje Case recognizes that parties can enter a binding agreement
that the husband will not marry another woman while his marriage
subsists with the first wife.
 ii. There is no unity of personality between man and woman at
customary law e.g.
• the woman is not legally required to change her name to the
husband’s name. they keep their maiden name.
• unlike at common law where a spouse is incapable of stealing
from the other as they are presumed to have common ownership
of property, a spouse is capable of stealing from the other at
customary law – see Mphumeya v R, 1923 ALR Mal 344.

ii. Collectivity. Marriage at custom is not only between two people, i.e.
a man and a woman. It is a union of families. Marriage advocates
must consent to the union. There is no valid marriage at custom
without the involvement of advocates (ankhoswe or mathenga). A
strong family relationship is created as a result of the marriage at
custom.

One more thing to note is that there is a lot of interethnic marriages

happening in modern day Malawi. It is in the discretion of the intending
spouses to decide which ethnic law they are to use. Once rites of one ethnic
group are followed at the time of marriage, the parties will be bound by
customary law as practiced by that ethnic group. See Mphumeya v R.,
Mkandawire v Mkandawire.

Forms of marriages at customary law.

There are four forms in which marriages at customary law would take. These
may be outlined as follows: -

a) The ordinary (or initial) marriage between a man and a woman.

b) Sororate Marriage: This is a marriage between a husband and his sister-in-
law. At customary law, unlike at common law, a sororate marriage can be
entered into even when the original wife is still alive. Further the law has
proscribed marriage between a husband and his divorced or deceased wife’s
sister. See Section 15 as read with the third Schedule of the
MDFRA. However, it seems there is nothing to stop a man from marrying
his wife’s sister while his marriage subsists to the first wife.
c) Levirate Marriage: This is a marriage between a widow and her deceased
husband’s brother or some other close blood relation. It is entered into only
after the death of the husband this type of marriage has been outlawed.
See Section 15 as read with the third Schedule of the MDFRA.
d) Ghost Marriage: This is a union between a woman and a deceased man.
The woman is ‘married’ to a ghost. This is the only case in which a woman
may get married to more than one man. This may happen if for instance,
 she is already married to a man that is living. However, ‘ghost marriages’
are of doubtful utility due to their supernatural nature.

The arrangement in the Mbona Religion where the spirit of Mbona is said
to have a living wife is an example of a ghost marriage.

C. Religious Marriages

Section 12 (c) recognizes Religious Marriages. This is a marriage celebrated

by a cleric in accordance with recognized rites of a religion, religious body,
denomination or sect to which one or both parties to the marriage belong.

Just like marriages at customary law, the law leaves the discretion to the
parties themselves. Indeed, the law to govern these types of marriage is the
religion, religious body, denomination or sect under which the parties
contracted their marriage. It can be argued therefore, that where the religion
etc., of the parties allow for polygamy the marriage would be potentially
polygamous but where the religion does not allow such it will be monogamous.

It used to be said that religious rites did not change the status of marriage –
see the Kandoje Case- but now it is clear that a person who has contracted a
religious marriage will be bound by that religion e.g. Lambat v Omar 1964-66
ALR Mal 511. However, sanctions for failure to abide by the religious law will
be meted out by the religion/ denomination itself.

D. Marriage by Repute or permanent cohabitation

This type of marriage is described in section 13 of the Act. No formal processes

are required to enter into this marriage. In fact, such type of marriages are
simply an acknowledgement or recognition that there are some people who
enter into long term relationships which they accept as a marriage but, for
one reason or the other the parties did not follow formal processes.

The law thus tries to put into effect the “intention” of the parties by recognizing
their union. By so doing the law aims at protecting vulnerable members of
such a relationship such as the “wife” and the children in the event that such
a union comes to an end either by reason of separation or death.

Section 13 of the Act prescribes conditions which must be satisfied for a court
to recognize the existence of a marriage by repute or permanent cohabitation.
These are:

(a) The length of the relationship – minimum of 5 years;

(b) The fact of cohabitation;
(c) Existence of conjugal relationship;
(d) The degree of financial dependence or interdependence and any agreement
for financial support between the parties;
(e) Ownership, use and acquisition of property;
(f) The degree of mutual commitment to a shared life;
(g) Whether parties mutually have, care for, or support children;
(h) Reputation of the parties in the community as being married;
(i) Public display of aspects of their shared relationship.

The provision has left the factors to be considered open to the discretion of
the court. It seems the provision puts primary emphasis on the length of the
relationship. The other factors only serve to support that single most
important consideration. The weight to be given to the other considerations
will depend from case to case.

E. Foreign Marriages

Marriages conducted in accordance with the laws of another country, where

one or both of the parties is subject to the laws of that country, are recognized
as valid under section 12(2) of the Act.

There can be no problem if such laws of another country are in tandem with
the laws of Malawi. The question is: what if such laws differ in substance to
the laws of Malawi. The following types of marriages are recognized in some
jurisdictions. What would be their status in this country?

a. Same sex marriages or marriages between transgender people.

This is where people of the same sex or transgender people enter into
wedlock. This entails a situation whereby a man enters into marriage with
a fellow man; or a woman enters into marriage with a fellow woman.

Under section 14 of the MDFRA only persons of opposite sex may enter into
a marriage with each other. This obviously excludes same sex marriages.
Moreover, under s.153 of the Penal Code, cap.7.01 of the Laws of Malawi,
it is a criminal offence for any person to engage in sexual intercourse
against the order of nature; under section 154 any attempt at such acts is
a criminal offence and under section 156 indecent practices between males,
whether in public or in private are prohibited.

Yet same sex marriages are recognized in at least 34 countries in the World
including common law countries such as Canada, New Zealand, United
Kingdom and United States of America. See www.hrc.org/Global - visited
11th August, 2023. They are also recognized closer home in the Republic of
South Africa. Should we say that same sex people married in those
countries will be recognized as married if they come to reside in this
country? It may be argued that it is possible if the provision is literally
 interpreted. However, in the English case of Wilkinson v Kitzinger [2006]
EWHC 2022 (Fam), [2006] HRLR 36, the judge interpreting a similar
provision ruled that by longstanding definition and acceptance, marriage
was a relationship between man and woman.

b. Polyandrous Marriage
This is where a woman has two or more husbands at the same time. The
common law does not recognize the concept of polyandrous marriages. In
Malawi, although polyandry is not expressly forbidden, it is not recognized
even at customary law. See Makina v Chiwele, Civil Appeal case no. 51
of 1973, NTAC (unrep).

Yet, just as is the case with same sex marriages, there are certain countries
or societies where polyandry is legally recognized as a form marriage- e.g.
in the Tibet Plateau shared by India, Nepal and China. See
www.britanica.com – visited 11th August, 2023.

It can therefore arguably be said that such types of marriage are also
recognized in Malawi by virtue of s 12(2) of the MDFRA.

Finally, section 12(3) provides that all marriages recognized under the Act
have the same legal status. Therefore, there is no superior or inferior
marriage under the Act - (in Kandoje v Mbirintengerenji the wife thought
there was a distinction between a “legal marriage” and other forms of
marriage. The court held that there was no such distinction.

CONVERSION OF MARRIAGES

Conversion refers to a process where a parties change the marriage from one
type to another. This could happen where a couple intends to convert a
potentially polygamous marriage into a monogamous marriage. This could be
necessitated by the fact that a person has changed their domicile and the law
in the new domicile forbids polygamy. See, Ali v Ali [1966] 2 WLR 620; Mehta
v Mehta 1945 2 All ER 690.

The MDFRA does not provide for conversion of marriages. However, it does
not seem to forbid the same either. Therefore, it is possible to convert
marriages from a potentially polygamous (customary or religious marriage) to
a monogamous (civil) one. It is important to ensure that where a person
intends to convert a customary marriage to a monogamous statutory
marriage, to a monogamous statutory marriage, the original marriage must
not be actually polygamous. This is so because to contract a civil marriage, a
person has to declare that he is not validly married to another person. In
cases of actual polygamy, the husband must dissolve the other marriages first
before converting the remaining marriage into a civil one. It is also important
to note that conversion is only possible from a customary marriage
(potentially polygamous marriage) to a monogamous civil marriage, and not
vice versa. This is so because it is an offence for a person who contracts a
valid civil marriage to marry another during the subsistence of the marriage
– s 51 of the MDFRA.

It may be advantageous to the wife to convert a customary marriage into a

statutory one as it gives her an assurance of being the only valid wife to the
husband.

Validity of the Converted Marriage

The process of conversion of a potentially polygamous marriage to a

monogamous marriage involves going through a second ceremony by the
parties. Therefore, will be determined by the lexiloci domicilii of each of the
parties. If, by the law of domicile of one or both of the parties, the marriage
would be invalid due to lack of capacity, the conversion cannot take place. If
it takes place, the statutory marriage will be invalid.

This is particularly true as regards issues relating to age, prohibited degrees

of consanguinity or affinity or the presence of a subsisting marriage with a
third party. Likewise, the validity of the second ceremony will depend on the
lex loci celebrations. In this country, the real test will be whether or not the
marriage has been celebrated in a licenced place of worship before a
recognized minister or it has taken place in the office of the Registrar of
marriages before the Registrar. If these formalities are not complied with, the
second ceremony is irregular and conversion is invalid. The effect of going
through a proper and successful process of conversion is to obliterate the
customary nature of the marriage, and to confer all the rights and obligations
of a monogamous marriage upon the parties. See, Hampson v Hampson 1908
p.355; Thynee v Thynee [1955]2 All ER 377. See also, Sinha Pearage Claim
[1946] 1 All ER 348; Mehta v Mehta [1945] 2 All ER 690, Cheni v Cheni [1963]
2 WLR 17

A Civil or monogamous marriage and a marriage at customary law or a

polygamous marriage cannot co-exist. After conversion, the husband cannot
claim to exercise rights that are associated with a potentially polygamous
marriage as he cannot marry more than one wife. Therefore, as a general rule,
any person whose marriage has been converted to a statutory one should only
assert his matrimonial rights under a monogamous marriage. See Hyman v
Hyman 1904 p.403; See also Akwapin v Budu (1935) D Court, (Gold Coast)

The effect of Conversion

It is not entirely clear whether conversion of a customary marriage to a
statutory one would take effect retrospectively. This would mean that the
couple would be regarded as having been married under statute as from the
date when they contracted their customary marriage. However, the better
view would appear to be that the effect of conversion is not retrospective. It
takes effect as from the day when the second ceremony is
completed.

This would help determine the date of commencement of marriage in the event
of matrimonial proceedings such as divorce. It would mean, for example, that
any alleged matrimonial offence, such as cruelty, which occurred before the
conversion, cannot be a ground for divorce. In Ali v Ali [1966] 2 WLR 620, it
was held that the parties could only rely on offences that were committed
after the conversion of their marriage, and not before they entered England
and converted their marriage.

On the other hand, where children are concerned, those that were born before
the second ceremony are still legitimate. This is because they were born in
lawful wedlock. The celebration of the second marriage does not affect the
legitimate transactions of the original marriage.

Capacity to Marry

It is the law of a person’s domicile that governs capacity to contract a valid

marriage. In Malawi, a valid marriage can be celebrated if the following
conditions are satisfied:

a) One party to the intended marriage must be male and the other female.
This means that the marriage must be heterosexual in nature. Section 22
of the Constitution; section 14 of the MDFRA. it must be noted that under
the common law sex is determined at birth – Corbett v Corbett [1970] 2 All
ER 33.
b) In the case of a civil marriage and, to some extent, a marriage by permanent
cohabitation and some religious marriages, neither male nor female must
be already married to a third person - Section 17 and 18 of the MDFRA.

If either party was under this age when the marriage was contracted, it
could be avoided by either of them when that party reached 18 years of age.
It may be argued that such a marriage cannot be ratified upon the parties
reaching the acceptable age of marriage other than by undergoing a new
marriage ceremony altogether. Pugh v Pugh [1951] 2 All ER 680; See also
Mohammed v Knott.

In Pugh v Pugh [1951] 2 All ER 680, Pearce, J gave the rationale for a higher
age requirement for marriage. He said: “According to modern thought it is
 considered socially and morally wrong that persons of an age at which we
now believe then to be immature and provide for their education, should
have the stress, responsibilities and sexual freedom of marriage and the
physical strain of child birth. Child marriages by common consent are
believed to be bad for the participants and bad for the institution of
marriage.”

c) The parties must not be related within the prohibited degrees of kindred or
affinity – s 15 of the MDFRA. Persons that related to each other by blood or
marriage lack capacity to contract a valid marriage between each other. The
third schedule has a table of related people who cannot enter into marriage.
In those cases, any marriage entered into will be considered null and void.

The Registrar of Marriage will not issue a marriage permit to the intending
spouses if they are within the prohibited degrees of kindred or affinity.

Further incest is a criminal offence under the laws of Malawi. See s.157 of
the Penal Code of 1928.
d) The parties must be of sound mind at the time of marriage – s 14 of the
MDFRA.

FORMALITIES OF MARRIAGE

Betrothal and Consent

The formation of a marriage begins with the process of betrothal/proposal or

engagement between the intending spouses. It is normally the male that
initiates the process; although in certain cases, the female may take the first
steps. This is ordinarily a private event. The other party must give express
consent to the proposed marriage. The consent of the parties must be genuine
and voluntary if the subsequent marriage is to remain valid. A marriage will
be declared null and void if the consent of either party to the marriage was
obtained by force, duress, deceit or fraud. See Section 77 (1) (e). See also,
Mndolo v Mndolo 1978-80 ALR M 101; Buckland v Buckland [1968]
P.296; Valier v Valier (1925) 133 LT 830

Parental consent

The age of capacity to marry under the Malawi Constitution and the MDFRA
is 18 years. further, section 22 grants the right to marry to all men and
women. Therefore, a person cannot be stopped from marrying those who they
wish to marry unless if there are valid legal reasons for such objections.
Therefore, parental consent is not necessary for people who wish to marry.
See also Ogden v Ogden [1904-07] All ER 86

Preliminaries to a civil marriage

NOTICE

Once parties have agreed to get married they are required to give notice to the
Registrar that they intend to get married in that registrar’s district. If they
intend to marry in another district the y will notify the registrar in the District
where they are registering of that intention. That registrar will notify the
registrar in the district where they intend to marry.

Publication of marriage notice

The purpose of publishing the marriage notice is to give publicity to the

proposed marriage. The requirement of the law is that such publication shall
be none by affixing a copy of the notice on to the outer door of the registrar’s
office - s 23. The notice has to be exposed until the registrar issues a marriage
permit or until the lapse of three months whichever comes first.

The reason the notice is published is to ensure that people in the district in
which marriage shall take place have notice that one or two of their fellow
residents intends to get married and that if there is any lawful objection to
such marriage they may enter a caveat (an objection) to such marriage. A
caveat is entered under section 30 of the Act. Therefore, to ensure that the
object of publicity is not defeated by the inclusion of false or little known
names parties must be referred to by the names that they are ordinarily
recognize with in the district.

The notice may be published in some assumed name (as opposed to a person’s
original or Christian name) as long as the assumed name is well known in
the area. See Dancer v Dancer [1948]2 All ER 731; [1949] P 147. On the other
hand, where there is a fraudulent intention to conceal the party’s true
identity, a court of law can rule that the banns have not been properly
published. The reason for the concealment is not relevant.

Moreover, it is an offence for a person to marry under a false name or

description with the intention to deceive the other party to the marriage – s
57.

In Tooth v Barrow (1854)1ECC&Ad.371, it was held that there was undue

publication of banns where the parties intention was to conceal the marriage
from the man’s relatives. Likewise, in Small v Small (1923)67Sol. Jo. 277
there was undue publication of banns where a man was a deserter from the
Army; and had assumed a false name in order to avoid detection and
prosecution. See also, Chipcase v Chipcase [1942] P.37

Caveat

The registrar keeps a Marriage Notice book in which all marriage notices are
registered. The Marriage Notice Book may be inspected by any person without
payment of any fee during office hours.

Any person, who may know of a just cause why the marriage should not take
place, may enter a caveat against the issue of the Registrar’s permit. He must
write the words ‘Forbidden’ opposite the entry of the notice in the Marriage
Notice Book. He has also to append thereto his name and address and the
reasons why he claims that the marriage should not take place. The registrar
is required to refer the matter to the High Court. The court will summon the
parties to the intended marriage and the person that entered the caveat. It
shall hear and determine the case summarily. The court may rule that there
is sufficient reason why the marriage should not proceed; in which case the
Registrar shall not issue the parties the permit for the celebration of marriage
- See Mpoka v Mpoka, Civil Case No. 128/1976, HC (unrep).

On the other hand, if the court rules that the allegations against the proposed
marriage are not proved, he the Judge shall remove the caveat from the
Marriage Notice Book by cancelling the word ‘Forbidden’ in the book and
writing the words ‘cancelled by order of the High Court,’ and appending his
name thereto. The Registrar shall then issue his certificate and the marriage
shall proceed as if the caveat had not been entered.

Marriage permit

If there is no just cause why the parties should not marry, the registrar may
issue the permit after the expiry of 21 days and before the expiry of three
months from the date of notice – see s 24.

The Minister may issue a special licence upon proof by affidavit that there is
no impediment. In such case he may dispense with the giving of a notice and
with the issue of the permit by the registrar.

CELEBRATION OF CIVIL MARRIAGE

Marriage may be celebrated only after the granting of a permit under s.24 or
the granting by the minister of a special licence under s. 25 of the same. After
production of the marriage permit to the registrar he may administer the oath
of marriage. The ceremony may take place at the office of the Registrar or any
other place, by special licence. If taking at any other place than the registrar’s
office it must still follow the procedures and requirement as if it was
celebrated by the registrar at the registrar’s office.

A marriage must be celebrated with open doors between 8 o’clock in the

morning and 6 o’clock in the afternoon. There must be atleast two witnesses
to the ceremony besides the officiating minister. This is in keeping with the
requirement that processes leading to the celebration of marriage, and the
marriage itself must be open to the public.

Preliminaries to a Customary and Religious marriages

Section 26 of the act provides that procedures preceding the celebration of a

religious or customary marriage shall be governed by the customs or rites
which are usual among the ethnic group religion or sect under which the
marriage is celebrated.

This means that most preliminaries in these categories of marriage are left in
the hands of customary or religious authorities as the case may be.

Be that as it may, any person who wants to marry under these procedure is
also required give notice of intention to marry and also to get the registrar’s
permit. After that the parties may follow their customs to celebrate the
marriages.

Celebration of Customary marriages

It must be noted that a customary marriage is celebrated by the meeting of

the advocates in the presence of the parties and family members. It is at that
meeting that a customary marriage is authorized and celebrated. The parties
are considered married after that ceremony. This would mean that such a
function must not be allowed to take place without a permit of the registrar
because it is technically a celebration of marriage.

In addition, every tradition authority is required to record particulars of all

customary marriages in his area in a Marriage Register Book delivered to him
by the minister.

Celebration of a religious marriage

The minister issues licences to places of worship where marriages may be

celebrated. The marriage must be officiated by a registrar (ordinarily it will be
a cleric as recognised under s 4). It must also follow or observe he rites or
usages of marriage observed in such church, denomination or religious body.
At any rate, it must be celebrated with open doors between 8 o’clock in the
morning and 6 o’clock in the afternoon. There must be atleast two witnesses
to the ceremony besides the officiating registrar who shall include a marriage
advocates of the parties to the marriage recognized as such at custom.
A witness to a marriage is someone above 18 years of age and of sound
mind.

A registrar shall not celebrate any marriage if he knows of any just

impediment to such marriage, nor until the parties deliver a marriage permit
to him or her or the Special Licence. See, Wing v Taylor (1861) 2 Sw & Tr
278; Mahadervan v Mahadervan [1962] 3 All ER 1108 .