LECTURE ONE

OBJECTIVE

 Define the term family under international law

 Define the term family under Zambian law (Sources of Law, common law,
customary law and statutory law, principles of equity)
 Outline with whom is family law concerned with in Zambia
DEFINING FAMILY UNDER
INTERNATIONAL LAW
 UDHR ART 16 see also ART 23 ICCPR also ART 10 of ICESCR
The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State

 See also regionally ACHPR art 18

The family shall be the natural unit and basis of society. It shall be protected by
the State which shall take care of its physical health and moral.
CONCLUSION DEFINING FAMILY

 There is no precise definition of family under International Law. A duty is

imposed on Member States to protect the family unit by:
1. Putting mechanisms in place to protect the family unit
2. Afford protection to all without discrimination and on the basis of equality.
 Member states however are given a margin of appreciation as far as defining
the scope of the term ‘family.’
 A simple definition is a family is a basic unit of society. Question is what
members is this unit comprised of, in short with whom is family law
concerned with in Zambia?
Adult relationships

 Let us look at the types of adult relationships in the world, then consider
which of these are afforded protection under the law in Zambia:
 Man and man, woman and man, transsexuals?
 Cohabitees
 Who can get married?
 Presumption of marriage? Mafemba v Sitali
Difference between provisions governing married that
those falling short of a marriage may not fall under:

1. Formalities (for marriage v cohabitees)

2. Duties and obligations (whilst married v cohabitees): maintenance,
ownership of property
3. Formalities for dissolution
4. Property and financial distribution after dissolution: Bernard v Josephs,
Mossop v Mossop
5. Property and financial distribution after death? Charity Oparaocha, s5 Cap
59, s20 CAP 60
PARENTS AND CHILDREN

 Does legal parentage begin with marriage?

 EDITH ZEWELANI NAWAKWI (FEMALE) v THE ATTORNEY-GENERAL (1990 - 1992) Z.R. 112 (H.C.)
“a single-parent family headed by a male or female is a recognized family unit in the Zambian society”
Natural Mother (surrogacy?)
Natural Father- Births Register, Affiliation and Maintenance, Death
Adopted Children: s14 of the Adoption act
Other relatives

 Customary Law: marriage formation, guardianship

 Near relatives: s6(1) d CAP 59 in the absence of spouse, children and
dependents
 See MWANANSHIKU AND OTHERS v KEMP AND MWANANSHIKU (1990 - 1992) Z.R.
42 (S.C.)
 See also prohibited degrees of affinity, incest laws etc
 HAFIZ AYYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.)
Courts administering family law

 Local courts: this court deals with customary marriage, how they terminate,
custody of children and sharing of property. See
 Subordinate court: deals with affiliation and maintenance for married
people. It also deals with maintenance upon divorce. Maintenance for
children of unmarried people and in some cases adoption (s20 Cap 28)
JENALA NAMBEYE v CHILESHE CHIRWA (1979) Z.R. 117 (H.C.)
 High Court: this court has jurisdiction and power in relation to matrimonial
causes instituted under the matrimonial causes act of 2007 see s4
 Supreme Court: this is an appeal court and will only have jurisdiction to hear
appeals. ROSEMARY CHIBWE v AUSTIN CHIBWE
cases

 ROSEMARY CHIBWE v AUSTIN CHIBWE

 JENALA NAMBEYE v CHILESHE CHIRWA (1979) Z.R. 117 (H.C.)
 Ann P. Nkhoma v Smart Nkhoma ZR 2003 p see also Munalo v Vengesai
(1974) Z.R. 91
Court Annexed Mediation

 See Amendment to the High Court Rules 2018 i.e. statutory instrument no 72:
custody and maintenance as well as property adjustments can be mediated.
See order 31
Sources of Family law

 See article 7 of the Constitution

1. The constitution
2. Statutes
3. Zambian Cases
4. English Statutes, common law and equity
5. Customary law
6. International Instruments
7. Texts