Due
to the nature of a marriage whether customary or statutory, it is believed that
both parties to marriage intend to take care of each other and their children.
As such marriage establishes legal rights and duties on both parties that
either party may choose to enforce. One
such right and duty is that of maintenance. By definition, it refers to what
the court may decide is appropriate in hopes of helping the party who is
financially weaker and dependent on the purported partner for their financial
survival. Maintenance may be necessary during the marriage or after its
dissolution.
MAINTEINACE OF SPOUSES
AND CHILDREN DURING THE SUBSISTENCE OF MARRIAGE
In
the Zambian context there are only two types of marriages that are recognized
namely; statutory and customary marriage. Under a statutory law marriage as general
rule maintenance is given by any party who is financially stable to a party
that is financially weak, i.e. if a woman is in a better financial position
than a man, she is the one to maintain her husband. Under this type of marriage,
the law does not place any direct obligation on a party to be financially
responsible for maintaining the other spouse and the children of the family.
According
to Section 58 of the Matrimonial Causes
Act (Act No.20 of 2007), a party
to a marriage that has been neglected to maintenance can make an application
before the court on one of the
following grounds; in the case of a husband where he has failed to provide
reasonable maintenance for the applicant or proper contribution towards the
reasonable maintenance for any child of the family. The same is true where the
wife is the one that has willfully neglected to provide, or to make a proper
contribution towards, reasonable maintenance.
Further,
section 58(3) of the Matrimonial Causes Act, applies to a child of the
family for whose maintenance it is reasonable in all the circumstances to
expect the respondent to make a proper contribution. Where a party to a
marriage who happens to be more financially stable neglect to provide financial
support to a child of the family, an application may be made before the court
and a maintenance order may be given. The court’s consideration of making such an
order will look at the available resources and the principle of the best
interest of the child
In
African customary law marriages, the issue of maintenance differs from
statutory law marriages. In customary marriages, the husband is responsible for
maintaining his wife and the children, unlike in statutory marriages where both
spouses can be responsible for maintenance. In many cases, the wife and
children are financially dependent on the husbands, and more often than not it
is viewed as a sign of weakness for a man if his wife provides financial
support to him and the children. The biblical notion of the man being the head
of a house is strictly followed, and under customary law it entails that the
man shall provide adequately for both that children and the wife.
MAINTENANCE OF SPOUSES
AND CHILDREN AFTER DESOLUTION OF A CUSTOMARY MARRIAGE
Customary law's approach to maintenance varies depending on tribal customs. Historically, it did not provide for the support of a divorced or separated wife. Consequently, in the case of Mwiya v Mwiya (1977] Z.R 113.2), the law on marriage and divorce among the Malozi of Western Zambia stated that among the Lozi, a divorced wife is not entitled to any property or maintenance on divorce. She simply reverts to her relatives who have to look after her and her children.
In terms of children, maintenance after their parents'
divorce was determined by the custodial parent (Lillian
Mushota, Family Law in Zambia: Cases
and Materials (Lusaka: UNZA Press for the School of Law, the University
of Zambia, 2005). In matrilineal societies, children typically stay
with the mother after the father's death or divorce, and her family takes
responsibility for their care, while the father's role diminishes. Conversely,
in patrilineal cultures, the father usually retains custody, and his family
assumes the welfare duties, often excluding the mother. In bilateral systems,
where lineage isn't specified, children are supported by the custodial parent,
and the non-custodial parent may also contribute.
Social and economic shifts have led to a modification
in the maintenance of spouses and children under customary law, with local
courts now empowered to issue maintenance orders. When determining maintenance
for a divorced spouse, the court considers factors such as the length of the
marriage, the woman's contributions to acquiring or maintaining property, and
her overall contribution to the family's welfare, including domestic duties (Lillian
Mushota, Family Law in Zambia: Cases
and Materials (Lusaka: UNZA Press for the School of Law, the University
of Zambia, 2005). With regards to children
born out of a customary marriage, the primary consideration that the court
considers in determining a maintenance order is the principle of “best interest
of child” rather than the custodial parent. This modification in customary law
applied the principles of equity to ensure that fairness and justice is
promoted.
Section
35(1)(d) of the Local Courts Act (Chapter 29 of the Laws of Zambia) allows the court to order monthly
payments for the support of a divorced spouse, considering the financial
situation of both parties.
‘This
support is limited to three years from the date of divorce or until the
recipient remarries, whichever happens first.
MAINTENANCE
OF A SPOUSE AND CHILDREN AFTER DISSOLUTION OF A STATUTORY MARRIAGE
The
primary law governing the maintenance of a spouse and children upon dissolution
of marriage in Zambia is the Matrimonial Causes Act, and the Children’s
Code Act which repealed the Affiliation and Maintenance of Children Act,
1995
The
Matrimonial Causes Act provides that the financially weaker party must be
maintained by the former spouse in a better financial position. Thus, the order
may be made in favour of a former husband or wife. This is to ensure that the
former spouse continues the standard of living that they enjoyed while the
marriage was subsisting. Also, the law provides for maintenance orders made in
favour of children after the divorce of their parents.
Accordingly,
Section 54(1) of the Matrimonial Causes Act outlines the different types of
maintenance orders that the court can issue in support of a former spouse and
children after a divorce. This maintenance can be in the form of periodical
payments, secured periodical payments, or a lump sum payment.
With
regards to the duration, Section 60 of the Matrimonial Causes Act specifies
that they should not extend beyond the child's twenty-first birthday. However,
Subsection (3) of the same section allows for an extension beyond the child's
twenty-first birthday, up to their twenty-fifth birthday, if the child is
already twenty-one or if special circumstances justify such an extension.
FACTORS
THE COURT CONSIDERS WHEN MAKING A MAINTENANCE ORDER
The
Matrimonial Causes Act, which governs maintenance in Zambia, offers a
comprehensive framework encompassing both the available payment methods for a former
spouse and children following a divorce, as well as the factors guiding the
court in issuing such orders.
Section
56(1) and (2) of the Matrimonial Causes Act neatly provides for the factors the
court takes into consideration when making maintenance orders. These include;
the income and financial resources of each party, their financial needs and
responsibilities, the standard of living before the marriage breakdown, the
duration of the marriage, any physical or mental disabilities, contributions to
the family's welfare, and any benefits lost due to the dissolution of the
marriage. The court aims to place the parties in a financial position similar
to what they would have had if the marriage had not ended, taking into account
their conduct and obligations toward each other. This principle enshrined in
the aforementioned section was affirmed in the Supreme Court judgment of Xirocostas v Poma (2014
ZMSC 15) where it was held that
the Court, in making a maintenance order, is expected to have regard to the
income, earning capacity and other financial resources which each of the
parties has.
Also, in Dart
v Dart (1996
2 F.L.R. 286),
the court held that when considering the "needs" factor in a
maintenance case, the court must objectively assess what the applicant
genuinely requires to ensure it's reasonable. This assessment should consider
what resources are available, the standard of living the parties are used to,
their age and health, as well as less obvious factors like the length of the
marriage and how it has affected the contributions and pension rights of both
parties, both now and in the future.
In summary, the law governing maintenance under customary and statutory law has been crafted in a way that it achieves fair support for spouses and children during the subsistence of the marriage and after divorce. As such, the law takes into account the principles of equity and welfare of the parties involved.
BIBLIOGRAPHY
STATUTE
The
Children’s Code Act No. 12 of 2022
The
Local Courts Act, Chapter 29 of the Laws of Zambia
The
Matrimonial Causes Act No.20 of 2007
CASE
LAW
Chibwe
v Chibwe [2000] ZMSC 59
Dart
v Dart (1996) 2 F.L.R.
286
Mwiya
v Mwiya [1977] Z.R 113.2
Xirocostas
v Poma [2014] ZMSC 15
AUTHORITATIVE BOOKS
LEGAL AID INITIATIVE
(Bringing the Law to Your Comfort)
About the Authors:
Kunda Mulenga is a third year Law student at the University of Zambia. She is also the Secretary General of Legal Aid Initiative.
