THE

CONSEQUENCES OF
MARRIAGE
THE MARRIAGE CONTRACT
As outlined earlier, marriage is a contract
that confers on the parties a status of
husband and wife, from this status arises a
bundle of rights and obligations which by
large are imposed by the law.
The Ampthill peerage Lord Simon of Glaisdale
stated ‘Marriage is a status meaning ‘the
condition of belonging to a class in society to
which the law ascribes peculiar rights and
duties, capacities and incapacities.’
CONSEQUENCES OF MARRIAGE
 Doctrine of unity: once two people married
they are considered to be one
 Right to consortium
DOCTRINE OF UNITY
 This doctrine has biblical origins. Married people were considered to be
one. The doctrine was by large discriminatory and entailed that a wife
submitted her being to her husband without whom she had no personality.
 Right to consortium origins
 ‘By marriage the husband and wife are one person in law; that is the very
being or legal existence of the woman is suspended during the marriage,
or at least is incorporated and consolidated into that of the husband ;
under whose wing, protection and cover she performs everything; and is
therefore called in our law-French a feme-covert....Upon this principle of
a union of person in husband and wife, depend almost all the legal rights,
duties, and disabilities that either of them acquire by the marriage.’ Per
Blackstone commentaries i, 442

 This doctrine justified a number of laws that were discriminatory against

women, thus the doctrine has been done away with by large now with the
development of women’s rights under international law, in particular
CEDAW

To what extent is the doctrine of unity reiterated under Zambian law?

WHAT DOCTRINE OF UNITY
ENTAILS
 The doctrine of unity entails that the wife:
1.Loses her legal identity at law thus:
(a) Cannot sue in her own right
(b) Cannot own property
See now the Law reform (miscellaneous
provisions) act of Zambia Cap 74
See also the Married women’s property act of
England 1881 and 1882
See also Phiri v Zulu (endorses Midland Bank v
Greene, the two can conspire)
THE RIGHT TO CONSORTIUM
 The right to consortium derives from the
status of husband and wife. It is also
premised on the view that upon marriage
two individuals become one
 It is a bundle of rights imposed by the status
of husband and wife.
DEFINING CONSORTIUM
 The term consortium is not subject to precise
definition. It is an abstract notion which has been
defined by Low and Douglas to meaning living
together as husband and wife with all the incidences
that flow from that status. Lowe and Douglas
Bromley’s Family law
 See also Kungl v. Schiefer (1960) 25 D.L.R. (2d)
344 per Schroeder J.A.
 “The term 'consortium' is not susceptible of precise
or complete definition but, broadly speaking,
companionship, love, affection, comfort, mutual
services, sexual intercourse – all belonging to the
marriage state – taken together make up what we
refer to as consortium.”
INCIDENTS FLOWING FROM THE
STATUS OF HUSBAND
What the right to consortium entails:
1. Companionship?
2. Affection? Somange v Somange
3. Cohabitation?
4. Occupy Matrimonial home
5. Sexual intercourse?
6. Maintenance?
7. Use of Surname
8. Children of parties to the marriage
9. Mutual protection
WHAT IS THE EFFECT OF BREACHING
THE RIGHT TO CONSORTIUM
 If there is a duty to cohabit can this be
enforced?
 What about companionship and affection can
any of these rights be enforced?
LOSS OF THE RIGHT TO
CONSORTIUM
 The right to consortium may be lost in the
following ways:
1. If the spouses agree to live apart;
2. Where a decree of judicial separation has
been made
3. When a decree nisi (divorce or nullity) has
been made and
4. Matrimonial conduct will deprive the spouse
of the right to the others consortium
CAN ONE SUE A THIRD PARTY FOR LOSS OF
CONSORTIUM?

 Where a third party interferes with the right of a party to the marriage to
consortium, the said party may sue the former for loss of consortium.
 A husband or wife can bring an action for breach of contract or tort against a
third party for damages for loss of consortium. For example if as a result of a
breach of contractual duty loses his right to consortium he may recover
damages for such loss where he shows that the loss was as a result of the
defendant’s breach. In Jason Watson and Son the husband successfully sued
for loss of his wife’s services where the wife died from food poisoning caused
by the salmon which the defendant sold to the plaintiff.

 Where a tort has been committed against a wife, the husband will also have
a separate cause of action against the tortfeasor for loss of consortium.

 See Howard and Company (Africa) Ltd v Behrens (1972) ZR 171 (HC)

