PUPILS forum

Daily Nation, Educating Zambia!

On today’s pupil’s forum in Civic Education, will look at a topic: Family Law. At the end of this lesson, learners should be to:

· Describe family and marriage

· Explain the elements of family law · Identify types of marriage in Zambia

FAMILY LAW Family and marriage

a) A Family is the smallest unit in a society which comprises of persons related by blood or marriage.

There are four (4) types of families in Zambia.

i. A nuclear family: A group of persons consisting of a man, his wife or wives in case of polygamous marriage and their children.

ii. An extended family: that consists of not only a man, his wife or wives and their children but also grandparents, uncles, aunties, nieces, nephews, cousins, in-laws and grandchildren. iii.

A single headed family: that consists of a single parent and children. This can be as a result of divorce or being widowed.

iv. Child headed family: is a new type of a family that has emerged in Zambia mainly as a result of the HIV/AIDS pandemic that has claimed lives of many adults leaving children to bring themselves up (as double orphans).

b) Marriage is a legal union of a man and woman as husband and wife.

This contract is based on the following:i. Rights: Entitlements a wife or husband enjoys in the union.

ii. Obligations: These are duties that a wife or husband performs in the union. For example each of the spouses has a duty to take care of and protect the other spouse. iii. Capacities: These are abilities or capabilities that each spouse brings to the union. For example, a wife has the ability to conceive and bear children for the union.

iv. Incapacities: These are inabilities or incapacities that each spouse brings to the union. For example a wife who is not educated and not skilled in anything may bring to the union the inability to provide for the union.

The elements of family law

i. Marriage: a legal union of a man and

woman as husband and wife.

ii. Divorce: Is the dissolution of marriage which is done when the court handling the case satisfies itself that a marriage had actually existed.

iii. Property settlement (Sharing):

*After a divorce in a customary marriage the woman usually gets some form of compensation to allow her start life afresh.

*In a civil marriage the property is shared by the Deputy Registrar’s court in the situation where one contributed in the earning of the union, he or she will be entitled to a third (1/3) of the total wealth of the couple.

*If both spouses contributed to the earnings of the couple the property will be shared at 50-50 basis.

iv. Maintenance of spouse and children

within and after marriage: ï Both within and after divorce a spouse has a duty to maintain his or her life partner. ï Under customary after divorce a spouse is duty bound to maintain is or her partner for a maximum of three (3) years or until he or she remarries which even happens earlier. v. Custody of children after dissolution of marriage: ï When awarding custody the ages and needs of children are taken into consideration. ï Usually the court gives custody to the mother if the children are very young. However, the father will provide maintenance. vi. Adoption of children.

ï Under the Adoption of Children Act, Chapter 136 of the 1948 Edition of the laws of Zambia, the courts have been given power to grant an order to adults requesting to adopt a child.

ï The Act has listed the categories of persons eligible to adopt children. ï A couple jointly wanting to adopt an infant (an infant is a child less than 7 years old)

ï A mother or father of the child either along or jointly with his or her present spouse. This means that if a person has a child or children then remarries and the new partner wants to formally adopt the children from the former marriage, him or her or together can apply to adopt the children

ï A person who has reached the age of 21 years old and is a relative of the infant.

ï Both the infant or child and the person applying for adoption should live in Zambia.

ï The infant has been looked after by the applicant continuously for at least three (3) months before the date of the application.

ï The person intending to adopt notifies the Commissioner of the intention to adopt three (3) months before the application.

ï In case of a couple, both or one of them should have attained the age of 25 years old and is at least 21 years older than the infant.

vii. Legitimacy of children

ï Based on the United Nations Convention on the Rights of the Child 1989 (UNCRC) new laws have equalized the position of children born outside marriage to those born in wedlock. viii. Succession. ï Succession when death occurs in a family is usually defined by traditional names and customs of the ethnic group that family belongs to. ï For example the Bemba‟s trace their lineage through the mother (Matrilineal), therefore, when a Bemba person, chief or headman dies, his sons are not eligible to succeed him but one of his nephews would succeed him. A complete opposite in the case of the Ngoni.

ix. Inheritance of property.

ï In Zambia today the inheritance of property is provided for in the Testate and Intestate succession Act of 1989.

a) Testate Succession deals with inheritance of property of a dead (deceased) who left a will.

ï A will is a declaration normally in writing stating how a person wants his or her property shared or distributed in the event of his or her death.

ï Testator is the person who makes the will in case of a male and the Testatrix is case of a female.

b) Intestate Succession: This is the Act used to distribute the property of the deceased who did not leave a will or someone who has left but that will is nullified by the courts of law. The distribution is done as follows;

*20% of the estate goes to the surviving

spouse.

*50% of the estate will be distributed to the

children both in and outside wedlock. *20% will go to the parents or guardians. *10% will go to dependants in equal proportions.

The types of marriage in Zambia

In Zambia there are only two types of marriages that are recognized by law. These are;

Statutory and Customary marriages * Statutory Marriage which is also referred to as a civil marriage is a voluntary union of one wife and one husband for life and excluding all others.

*What is considered when entering into a statutory marriage?

a) Take out a notice of marriage: The notice of intention is marry made on a prescribed to the Registrar of marriages at the local council offices.

b) Marriage Payment: The Marriage Act does not stipulate any payment of any kind. Unless the individual concerned just wants to observe the customary ritual of paying marriage payment.

c) Age: Under the Marriage Act parties intending to marry should be 21 years of age. If any of the parties is below 21 and above 16 years he or she needs a letter of consent from his or her parents or guardians.

d) Relationship: The two should not be related to each other either by blood or marriage. Their relationships which are prohibited by law to enter into marriage are known as prohibited degrees.

e) Solemnisation of Marriage: This is when the actual wedding is performed following the laid down ritual such as each of the parties publicly declaring that he or she has agreed to wed the person that they are standing next to by saying this aloud and mentioning all the names of the person.

f) The Marriage Certificate: This is the evidence of marriage and a copy of which is kept by the Registrar and the other by the couple.

ï Customary Marriage: This is the marriage contracted under customary practices. This marriage may not be a union of one man one woman in the case of polygamy.

ï Some requirements in a customary marriage.

a) Consent: This is when the parents or guardians of the woman getting married give permission for her to marry and also when the person getting married agrees to marry.

b) Marriage Payment: There is always payment as recognition of the marriage. The payment is made by the bridegroom- to-be to the family of the bride-to-be.

c) Spouses: The parties to the marriage should be male and female. The female should be single, divorced or widowed but the male may already have one or more wives.

d) Relationship: The persons intending to get married should not be closely related by blood or through marriage.

Other ‘marriages’ though not recognized under Zambian Law.

a. Religious Marriage: This is the

marriage solemnized or performed in church by the clergy.

Note: The marriage solemnized in church should be followed up by a registration at either the Civic Centre or Council Offices under the Marriage Act or at a Local Court under the Local Court Act. b.

Cohabitation: This is a marriage where the parties concerned decide to live together on their own without consent by their parents or guardians and without following any rituals performed either in a customary or civil marriage and later the society recognizes the couple as husband and wife. c.

A Void Marriage: This is the kind of marriage without legal standing right from the beginning. It is null and void.

Some reasons for a void marriage.

- Lack of parental consent.

- Non publication of vows in church.

- If the man is under 21 years old.

- If the female is under 21 years and above 16 years without the consent of the parents or guardians.

- Prohibited degrees of marriage.

d. Avoidable Marriage: is one that is initially valid which means had a legal standing until it is invalidated by the court of law.

Note: Some reasons for invalidation of a marriage by the court of law.

- If the child born is not the husband’s child.

- If the spouse has contracted sexually transmitted disease from elsewhere not from the souse.

- If the marriage is not consummated due to impotence (consummation in marriage means making complete by having sexual intercourse) - Wilful refusal to consummate the marriage by any party.

- Mental disorder of any of the parties.

Exercise

1. Define cohabitation

2. What is a void marriage?

3. Name two types of marriage

4. State and explain three elements of the family law

5. Define;

(i) Family

(ii) Marriage

6. Distinguish between extended and nuclear family