Introduction

This essay is intended to cite and explain any three factors the court considers when making a
property settlement or adjustment order in Divorce proceedings. To support this discourse,
recourse will be had to case law.

Definitions

Marriage, as defined in Hyde v. Hyde,1 is the voluntary union for life of one man and one woman
to the exclusion of others. Where this marriage breaks down, the parties to it may file for
dissolution, otherwise known as Divorce.

Divorce, according to Black’s Law, is defined as “The legal separation of man and wife, effected,
for cause, by the judgment, of a court, and either totally dissolving the marriage relation, or
suspending its effects so far as concerns the cohabitation of the parties.”2

The court, during Divorce proceedings, may make a property settlement or adjustment order,
which is “a judgment in a divorce case determining the distribution of the marital property
between the divorcing parties.”3

In Ponde v. Bwalya,4 the Supreme Court of Zambia stated that “Property adjustment is
universally understood to mean allocation of one or more properties among the family assets to
provide for a divorced person.”

The court’s authority in property settlement

Section 55(1) of the Matrimonial Causes Act, 5 gives power to the court to grant an order for
property settlement. And in determining the settlement, the court considers the following
factors:
1
(1866) LR1 P & D 130.
2
Black, H. C., M.A. (1968). Black’s Law Dictionary. (4th Ed.). West Publishing Co. St. Paul Minn. Pg.55.
3
Garner, B.A. (2004). Black’s Law Dictionary. (8th Ed). West Publishing Co. St. Paul. Pg.3847.
4
Appeal No. 51 of 2011.
5
No. 20 of 2007.
1. Financial and Non-Financial contributions: The court considers the value contribution
made by the parties to the marriage during the subsistence of the marriage, whether said
value is financial or non-financial such as homemaking, childcare and support to the other
spouse. In the celebrated case of Chibwe v. Chibwe,6 the court held that the energy the wife
devoted to the family was sufficient contribution, having deemed the same an “in kind”
contribution to the acquisition of the property listed.

In Mambwe v. Mambwe,7 the court reiterated this position in their holding, that in this and
other commonwealth jurisdictions, a spouse who contributes financial or in kind, has an
interest in the property acquired during the subsistence of the marriage. This consideration is
enshrined further, in the MCA.8

2. The Needs of the parties: The court considers the needs of the parties in light of what is
required for maintaining the livelihood of the parties. The objective test in this factor is that
the court considers such things as availability, standard of living to which parties are
accustomed, and such other considerations as age and duration of marriage. In the case of
Dart v. Dart,9 the court granted the appellant what she reasonably required owing to the
needs assessment to a marriage wherein she has no direct contribution to the wealth.

To this factor, the court looks at income which includes both earned and unearned income
and benefits received by a spouse in their employment service. A spouse cannot alter his or
her liability by either reducing it or increasing his needs. This was demonstrated in Schuller
v. Schuller.10 Furthermore, the earning capacity falls within this consideration in determining
the party needing support as well as property and other resources.

6
SCZ. Judgement No. 38 of 2000.
7
Appeal No. 222 of 2015.
8
Section (56)(1)(f)
9
(1996) FLR 286, CA.
10
(1990) 2 FLR 193, CA.

2
 Among the sources of income considered, is also inheritance. Where a party to a marriage
has received, not yet received or even likely to be received, the court considers that as a
source.
3. Reasonableness of any existing agreement: The court reviews and gives direction on the
reasonableness of any existing agreement that patterns to any arrangement on property or
wealth management where divorce happens. Section 53(2) of the MCA11 provides:

“(2) Where an agreement is referred to the Court under subsection (1), the Court may express
an opinion, if it thinks it absolute, make any one or more of the following orders desirable to do
so, on the reasonableness of the agreement or arrangement and give such directions, if any, in
the matter as it thinks fit.”

And where there is found unreasonableness, the court may make an order to vary such terms of
the agreement as provided in Section 55(1)(c) which provides:

“(c) an order varying for the benefit of the parties to the marriage and of the children of the
family or either or any of them any ante-nuptial settlement, including a settlement made by will
or codicil, made by the parties to the marriage;”

In the case of G v. G (Financial Provision: Separation agreement),12 the parties were married
and had signed a prenuptial agreement. the holding, “Thorpe LJ set out the duties of a judge in
ancillary relief applications: ‘A judge has to do fairness between the parties, having regard to
all the circumstances.”

Conclusion
The court makes several considerations in determining property settlement including the best
interest of the child where the parties have children, considering the welfare of such a child who
is below 18 to which periodic payments must be made to maintain said child as demonstrated in
M V. B (Ancillary proceedings: Lump sum).13

11
No. 20 of 2007.
12
(2000) CA 28.
13
(1997) CA.

3
Bibliography
Book
Black, H. C., M.A. (1968). Black’s Law Dictionary. (4th Ed.). West Publishing Co. St. Paul Minn.

4
Garner, B.A. (2004). Black’s Law Dictionary. (8th Ed). West Publishing Co. St. Paul.

Cases

Chibwe v. Chibwe SCZ. Judgement No. 38 of 2000.

Dart v. Dart (1996) FLR 286, CA.

G v. G (Financial Provision: Separation agreement (2000) CA 28.

Hyde v. Hyde (1866) LR1 P & D 130.

M V. B (Ancillary proceedings: Lump sum (1997) CA

Mambwe v. Mambwe Appeal No. 222 of 2015.

Ponde v. Bwalya Appeal No. 51 of 2011.

Schuller v. Schuller. (1990) 2 FLR 193, CA.

Statutes
Matrimonial Causes Act No. 20 of 2007.