Family law slides UNIT 1

Defining Family What is ‘’family”? ’The word ‘family’ is both easy and hard to define. Easy because family is a subjective word, in other words each individual will define this differently. It is for this reason that family is difficult to define, as the law cannot reconcile a widely accepted definition of family.’

Defining family In the western world the typical definition of family being the basic unit of husband, wife and biological children has changed over time to accommodate adopted children, same sex couples, cohabiting couples etc. In Zambia however society has not developed to embrace those changes, as such for the purposes of this course we will define family as a basic social unit comprising husband, wife and children if any. In Zambia this goes beyond the husband and wife. It covers the external family on both sides.

Coverage Law will often develop to reflect the needs and changes in society. Initially family law dealt with the status of marriage, as well as the rights, duties it comes with and more emphasis placed on the dissolution and consequences of marriage. Now the focus of family law as changed to considerations of parenthood, the rights and duties arising from it. The law will normally also consider the regulation of families as well as the protection of the family unit. In the western world the law has developed to accommodate the union of partners of the same sex. In England for instance same sex people are allowed to get a civil partnership giving them rights equivalent to married couples. In addition to this partners cohabiting in some western countries are given limited rights. The laws of Zambia have not however been developed to that extent. Activity Any examples of states within Africa that permit same sex marriages or an equivalent to them? Should civil partnerships or same sex marriages be enacted in Zambia.

NATURE AND SCOPE OF FAMILY LAW We will look at: Marriage: types of marriages, formalities Its consequences Nullity: void and voidable marriages Dissolution of marriage Parenthood, Who is a parent at law: adoption and legitimacy Financial provisions upon: Divorce, nullity or Judicial separation (b) Death 7. Law’s regulation or protection of the right to family life

Engagement and cohabitation What is an engagement? Is it a contract Does it have any legal consequences? In Zambia an engagement is simply an agreement between two people to marry at a future date. In England prior to the Law Reform (miscellaneous provisions) Act 1970 an engagement was a binding contract for which a party could sue for breach of contract upon failure to marry. How is an engagement terminated? For property rights of cohabitates read: See Bernard v Joseph (1982) 3 ALL ER 162 CA and Mossop v Mossop [1988] 2 ALL ER 202, CA: held that the provisions under the MCA 1973 dealing with property settlement will only provoke the courts jurisdiction upon a petition for divorce, nullity or judicial separation being presented, as such parties to an engagement may not apply under this section. Compare and contrast the two cases Consider the Matrimonial Causes Act 2007: is there any provision that would permit a party to an engagement that has been terminated to claim for any financial provision? Can a party to an engagement apply under s54 of the MCA 2007

Cohabitation Some people may chose to cohabit as opposed to marry in this day and age. Zambian law does not recognise cohabitation. Do you think that there is a growing number of people cohabiting today? Do you think these people should have legal recourse?

Defining Cohabitation Two people living as man and wife without actually being married. Characteristics of cohabitation: Living under one roof Having an ongoing sexual relationship The financial support of one party to the other The stability and permanence of the parties Whether the reasonable person, taking into account of the couples life together would deem them as an unmarried cohabiting couple.

Differences between marriage and cohabitation Cohabitation can end abruptly and no formalities exist for ending it Marriage however has formalities such as a decree of nullity or divorce A cohabiting couple cannot make a joint application to adopt a child but married people can (gay people cannot adopt children) The law relating to financial provision does not apply for cohabiting couples

Presumption of cohabitation in Zambia? There is no presumption of cohabitation in Zambia. Cohabitation over a period of time will not be recognised as marriage in Zambia Mafembe v Sitali (2007) ZR 215 SC Living together for 14 years was stated to not amount to marriage.

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

Sources of family law in zambia COMMON LAW STATUTES: marriage act EQUITY