SCHOOL OF LAW

L170- FAMILY LAW

FIRST SEMESTER MID SEMESTER EXAMINATIONS, APRIL 2015

INSTRUCTIONS

1. QUESTION ONE (1) IS COMPULSORY AND IS WORTH 40 MARKS.

2. ANSWER ANY TWO OTHER QUESTIONS
3. TIME ALLOWED: 3 HOURS PLUS 5 MINUTES FOR READING THE
EXAMINATION PAPER
4. CANDIDATES ARE PERMITTED TO BRING INTO THE EXAMINATION
RELEVANT STATUTES
5. CANDIDATES MUST NOT TURN THIS PAGE UNTIL TOLD SO BY THE
INVIGILATOR
Question 1

On the 20th of March 1999 Thandizo and Moses Daka had a ceremony symbolising
their union in accordance with the Ngoni custom. Subsequently the two solemnised
their marriage in the Cathedral of the Holy Cross. The marriage was duly solemnised
by the priest.

Moses who had been waiting for Thandizo and had not been intimate with any
woman his whole life, dreamed of his wedding night. He was elated when the two of
them were pronounced as husband and wife in church.

The celebrations were almost immediately put on hold when on the night of their
wedding Thandizo refused to have intercourse with Moses. She was in tears as she
revealed the reasons why she could not spend the night with him. She told him that
she had just taken a pregnancy test which confirmed that she was pregnant. She
said that she had intercourse with an old boyfriend prior to the wedding when Moses
stormed off on her in anger intimating that he was ending the engagement.

Moses disappointed with his wife chose to sleep in the living area, he told her he
needed space to decide on his next actions.

Moses and Thandizo lived in a one bedroomed flat in Kalingalinga. Moses slept in
the living room until Thandizo gave birth to her child whom she named Sam.

After the birth of Sam Moses grew fond of him, he brought back all the joy that he
had lost. After months of disappointment the love he had for his wife was restored.

Although the two never slept in the same room, they had dinner together.

After giving it much thought Moses decided to inform Thandizo that he wanted to
rebuild what they had lost, he stated that he was ready to move back to the
bedroom. To his surprise Thandizo told Moses that she merely needed him to be a
father to her son nothing more.

A week later when Moses got back home he found Sam in the living room alone, he
went to the bedroom where he found Thandizo with another man. Furious he
demanded that the man leaves the house, Thandizo however protested.

Thandizo introduced the man as Sam, she said Sam was the father of her child, she
told Moses that she had fallen in love with Sam and was going away with him. She
informed Moses that she has already seen her lawyers and is making plans to get
out of the marriage.

Moses who is still in love with his wife and loves his son comes to you for advice.

Prepare a detailed legal brief advising him

(25 marks)
In the event that Moses wanted nothing to do with his wife, what would your advice
be?

(15 marks)

QUESTION 2

Talking of an unmarried couple the court in the case of Gammans v Ekins [1950] 2
KB 328 at p331 stated “to say of two people masquerading as these two were as
husband and wife that they were members of the same family seems to be an abuse
of the English Language”.

(a)Discuss citing relevant authority the accuracy of the above quotation under
Zambian law today

(b)Citing relevant authority define family under Zambian law

(20 MARKS)

QUESTION 3

In the case of FitzPatrick v Sterling Housing Association Ltd [2000] 1 FCR 21 the
House of Lords defined family (for the purposes of the rent act 1977) stated that the
term family ‘is not restricted to people linked by marriage or blood.’ Lord Slyn
suggested that the hallmarks of family life were ‘that there should be a degree of
mutual interdependence of the sharing of lives of caring and love or commitment and
support.’ Further he stated that the relationship must not be a ‘transient superficial
relationship’

Discuss the extent to which the above propositions reflects the position under
Zambian law

(20 marks)
QUESTION 4

Dr Francis Shigunta has been sued for divorce in the Lusaka High Court by his wife
Victoria, who alleges that he is an adulterous man who denies her conjugal rights.

According to a petition for dissolution of marriage filed in the principal registry,

Victoria, a housewife of Twin Palm Extension, stated that Dr Shigunta had violent
behaviour such that many times, he would threaten her with death if she did not
move out of the matrimonial house.

She prayed that the court grants the divorce because the marriage had broken down
irretrievably, adding that her husband had been denying her conjugal rights for three
years.

She stated that she was lawfully married to Dr Shigunta on November 3, 2008 and
they had two children together.

Victoria, however, stated that there were two children born out of wedlock.

She stated that there had been no proceedings in any court within Zambia and
outside with reference to her marriage which could affect the validity of her petition.

Victoria further stated that the couple last lived together at House No 2006 off
Pemba Road in Lusaka’s Chilenje South.

“The respondent has an adulterous behaviour such that he had conceived a child
outside wedlock with another woman and as such the petitioner finds it intolerable to
live with the respondent,” she added.

Victoria also stated that Dr Shigunta was not honest and did not disclose to her that
before they married, he was married to another woman who had since died.

She added that Dr Shigunta had behaved in such a way that she could not
reasonably be expected to live with him as he entrusts his sister with the matrimonial
finances instead of her as his wife.
Victoria asked the court to dissolve the marriage and that there be property
settlement.
She also wants the court to grant her custody of her children and maintenance.

Discuss the merits of the petition and the likely outcome of the decision
(20 marks)

QUESTION 5

Discuss the different modes of acquiring parental responsibility

(20 marks)