customary law marriage in zambia pdf

Redeeming Zambian Customary Laws: what we can do about ... This is best covered in the book "Shona Customary Law: With Reference to Kinship, Marriage, the Family and the Estate" by J. Holleman (). PDF Culture, Tradition, Custom, Law and Gender Equality 2.1 ZAMBIAN LAW The Constitution: At the time of TGCC program design, Zambia's 1991 Constitution was the PDF An exploratory study on the interplay between African ... 6 . In fact, the idea that civil marriages are superior to the customary ones has long been discarded. 2.3. Customary law is a recognized source of law within jurisdictions of the civil law tradition, where it may be subordinate to both statutes and regulations. customary law; and (b) the marriage must be negotiated and entered into or celebrated in accordance with customary law. Records and evidence of such marriages 37. In some cases, customary laws − such as Ushi and Chibwe customary law − entitle women to a reasonable share of the marital property, as in Chibwe vs. Chibwe, Appeal No.38/2000 SCZ. Bennett, The Compatibility of African Customary Law and Human. Customary Marriage and Urban Courts in Zambia [1990] J.A.L. September 16, 2017. Recognition of customary law marriages in Zambia Status of religious marriages in Zambia . Customary law marriages are potentially polygamous. Centre, Customary Laws on Inheritance in Namibia: Issues and questions for consideration in developing new legislation (June 2005). A comparison between civil and customary marriage and divorce approaches does not mean that civil marriage is superior. appointed behaviour born brother ceremony child circumstances claim common conduct consent consider continue counsel custody customary law death deceased decision decree dependant divorce duty effect England . Since the decision in Lewis v Bankole … 'customary law has been stated to be unwritten customary law, recognized as law by the members of an ethnic group and it is a mirror of accepted usage' … on the other hand, it is a notorious fact that Moslem law is written in the Holy Koran, in the numerous books of the Hadith … the explanation . Previously, a woman married under customary law would not be entitled to a share of . Customary Law 51 2.3.2. 3. Marriage by Shona customary law custom Marriage can only be between Shona customary law man and woman. A decree of dissolution of marriage shall not be made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed. Zambia Customary law. In Zambia, land has since time immemorial been held under customary tenure, until the 1960s when freehold and leasehold tenure systems were introduced. Contracting marriage under this Act when married in African customary law or contracting marriage in African customary law when married under this Act 39. The Legal Framework of the Laws of Marriage Divorce and Domestic Relations . Zambian Law recognizes two kinds of marriage; Statutory marriages under the Marriage Act and customary marriage under different customs that may vary from tribe to tribe. 4 June Sinclair, The Law of Marriage, Vol. Accomplices 40. Applicability of the Laws 58 2.5. some aspects of law in Zambia. Customary Law 51 2.3.2. While frequently more common in rural areas, the practice can also be found in more urban settings. AS WE all know, customary law governs the majority of people . The changing nature of customary marriage by Muna Ndulo 143 7. 2.0 HOW CUSTOMARY MARRIAGES ARE CONTRACTED IN ZAMBIA A GLIMPSE OF THE BEMBA TRADITION To a large extent, the main stages leading to the finality of a customary marriage in Zambia tend to be the same across all tribes, save for the differences in nomenclature.7 1 Lord Penzance in Hyde V Hyde and Woodmansee (1866) LR1 P & D 130 2 The definition . 1. 1. The Courts and Conflict of Laws in Practice 65 2.5.1. 9: . 2. 2. For a detailed discussion of this customary practice see Koyana and Bekker 2007 De Jure 139-144. The facts of the 2012 case of one Ms. Kay Figo and her lover Mr. Van are very well defined. the legal profession to critically focus on the laws regulating marriage in Zambia so as to address the exiting challenges. However, the cultural practices and norms without being written as law create both negative and positive impact on the rights and duties of parties involved under customary marriage which gives rise to a number of . Landmark judgment for women in customary marriages. In this case a man sends a middle man (shibukombe) to ask for permission to marry from a chosen family. BOOK EXCERPT: The dynamics of customary marriage set up in a country which has more than 73 Ethnic groupings is not only fascinating but, is also challenging to regulate. 9 Our research did not investigate the extent to which the judges themselves carried state norms back into their communities. Forms of Marriage 75 2.6.1. Around 2007 a 55 year-old Mr. Van met a 21-year Ms. Kay Figo at… One such similarity is the degrees of consanguinity. The two cannot be related, cannot be of the same clan and must be of marriageable age or older. Customary Law and Resource Struggle in Kenya: Implications on Woman to Woman Marriages, 1890-1990 By Dr. Elias Munshya on January 28, 2014 • ( 9) By E. Munshya, LLB (Hons), M.Div. The validity of a customary marriage under the Recognition of Customary Marriages Act 120 of 1998 with reference to sections 3(1)(b) and 7(6) part 2 August 2016 Authors: See 'Consent to a customary marriage'. Zambia is signatory to these but is challenged by the parallel legal system —Customary and Statutory law—. Crime and punishment in Zambia by John Hat chard 163 8. International law standards and the Zambian laws . 2 Table of contents Acknowledgements 6 Acronyms and abbreviations 7 Executive summary 8 1. South Korea's Constitutional Court on Thursday struck down a 62-year-old law that made adultery an offense punishable by up to two years in prison, citing the country's changing sexual mores and a growing emphasis on individual rights. still when? A precedent setting ruling earlier this month by a local court in Zambia has given women married under customary law the right to a share of marital property in the event of a divorce or death of the husband. In relation to marriage, any person below 21 years requires written consent of a parent or guardian before a marriage is contracted. PART VII OFFENCES AND PENALTIESPART VII OFFENCES AND PENALTIES 38. Religious Marriage and. While many African cultures in South Africa require the exchange of lobola or magadi, the wedding celebrations differ from community to community and could include song and dance, the slaughter of cattle . Much of the material used in this article was gathered on a two-month research trip to Zambia in 1984. Costs of transmission of records, etc. Zambia practices a dual legal system—customary law and statutory law (Panos 2014; Nsemukila 2015). It is a little more complex than I explain in this article. TTydskrif 2016.pdf.pdf 60ydskrif 2016.pdf.p 6d2f.pdf 60 22016/04/29 10:31:37 AM2016/04/29 101:2178:404 AM SECTIONS 3(1)(B) AND 7(6) OF THE CUSTOMARY MARRIAGES ACT 120 OF 1998 233 are merely increasing the divide between living customary law and official cus- It is reflected in the processes of the civil law jurisdictions, where there is more reliance on case and textual preceden that n is often recognized by commo lanw lawyers.2 It is perhaps also the most significant ingredient of most of the customary law systems This Report represents the culmination of a year-long project undertaken by the Crowley Program in International Human Rights at the Fordham Law School to study issues surrounding women and customary law marriages in South Africa in light of its Perhaps, one of the most popular definitions out of the definition pool is the Marriages already solemnised in Zambia 36. A Multi-Scalar Approach to Gender Equality and Customary Law Reform: The Potential of Regional and Sub-Regional Human Rights Frameworks Johanna Bond Associate Professor of Law, Washington & Lee University School of Law, Lexington, VA, United States . According to a 2003 survey, 16% of marriages in Zambia are polygamous. 2.3. MARRIAGE UNDER AFRICAN CUSTOMARY LAW IN MALAWI 81 ahrlj-2010-1-text.indd 81 6/14/10 12:32:55 PM. 8 For a detailed discussion of the way in which this limitation on customary law has been applied in the field of customary marriages and family law generally see C Himonga Family and Succession Law in Zambia (2016) para 64. get you say yes that you require to acquire those every Contracting marriage under this Act when married in African customary law or contracting marriage in African customary law when married under this Act . legislation contains no definition of customary law and no guidance on how to resolve conflicts of laws.7 * Department of Law, School of Oriental and African Studies, University of London. The second element is the definition of marriage. Most of the customary marriages do not prescribe any age for the solemnization of the marriage .This lacuna in the rule of customary law has to some large extent encouraged a high incidence of child marriages with all its attendant evils .There is no doubt that there are many child marriages in Zambia due to the silence of the law and none . Customary law marriage: Each ethnic group has its Applicability of the Laws 58 2.5. 5 Co-habiting and the common marriage Presumption of Marriage Requirements for a valid marriage Readings: N Lowe & G Douglas, Bromley's Family Law, Oxford University Press, 35. Chapter One: Family Law 1 I. customary law inferior to common law, and requires that the validity of customary law is determined against English norms of legality, justice, and morality (Muna Ndulo, African Customary Law, Customs and Women's Rights 2011). The right of a customary law wife or husband to inherit from each other's estates even if their customary law marriage is not solemnised (See section 68(3) of the Administration of Estates Act [Chapter 6:01]. The Official authorities in charge of registering a marriage are: The Department of Births, Marriages and Deaths; The local councils and the church solemnize marriages; the local courts register customary . The Courts and Conflict of Laws in Practice 65 2.5.1. 4 Min Read. Is adultery a crime in Zambia? 35. under customary law, marriages are contracted according to customs of the contracting parties. However, customary law allows the contracting of marriage once the child has attained puberty. Analysis: JUSTICE SHARPE-PHIRI. Customary Marriage/Statutory Marriage Muna Ndulo, The Changing Nature of Customary Marriage in Zambia 3 McCabe v. McCabe (U.K. 1994) 19 Notes on Customary Marriage 23 B. Islamic Marriage Amie Gaye and Mähen Njie, Family Law in The Gambia 25 Notes on Islamic Marriage 29 C. Age of Marriage Sixty thousand marriages were dissolved in Zambia's local courts, while 1,000 marriages were dissolved in the High Court of Zambia. Customary Marriage 75 2.6.2 . 2.1 ZAMBIAN LAW The Constitution: At the time of TGCC program design, Zambia's 1991 Constitution was the A violation of this is referred to as "Simongama" a serious crime against native . 6 , the Council of Commissioners decided in March , 1976 , to submit to the Minister for approval on the Commission Programme the project on Zambian Customary Law with particular reference to succession and marriage.. Outside of Zambia: +260 211 357-000 or +260 966 050-123. . In addressing custom as a source of law within the civil law tradition, John Henry Merryman notes that, though the attention it is given in scholarly works is great, its importance is "slight . The local courts'justices are appointed by theJudicial Service Commission from a list of names put forward by the local chief, and in making an Widows under Zambian customary law 91 Principles of customary law of succession The pre-colonial law in Zambia was essentially customary in charac ter, having its source in the practices and customs of the people.5 The colonial regime recognised customary law at the outset.6 This is particu larly true in areas of personal law. Defining and characterising "customary law" would itself be the subject of an extended study. The Received Law 55 2.4. Of the total land mass of the country amounting to 752,614, customary land is estimated to be 94 percent and state land is estimated at 6 percent. 7 The Penal Code sets the minimum age for the criminal responsibility to 8 years 8. Parties should be allowed, in th e case of a 'dual marriage', namely, a marriage celebrated by both customary and civil rit es, to make an express declaration as to which law should regulate their marriage. 3. Previously, a woman married under customary law would not be entitled to a share of . 4. For those unfamiliar with our system - local courts primarily preside over marriages contracted under customary law; whereas the High Court has jurisdiction over marriages contracted under the statute - that . Also, the written customary law doesn't always give a complete picture of the rules of customary law. 2 LAW IN ZAMBIA law. Existing customary law marriages can be registered at any time. 3 Section 68G (1) (a) customary law applied to a person who, at the date of his death, was married in accordance with customary law; and (b) the general law of Zimbabwe applied to a person who, at the date of his death, was married in accordance with the Marriage Act [Chapter 5:11] or the law of a foreign country, even if he was also A REFLECTION ON THE VALIDITY OF THE COMMON LAW MARRIAGE IN ZAMBIA by Chuma N. Himonga INTRODUCTION There are three types of marriage that are recognized under Zambia's dualistic legal system.1 The first two forms of marriage under the Marriage Act2 and customary law3 respectively can be contracted in Zambia. Rights, 1991 AcTA JURIDICA 18, 18-35 (discussing the role of customary law in South African legal reform). A customary marriage, The pressure created on customary marriage in the light of continuous social changes and inter-marriages can no longer be ignored. The difference here, is that in the existing Customary Marriages Act, customary marriage officers may include chiefs or other people designated as such by the Minister, whilst in the Bill, it is only magistrates and chiefs who can be customary marriage officers. Even where the customary law court has awarded property settlements to women, the High and Supreme Courts have overturned such judgments. The customary law in Zambia is recognized by our Constitution provided its application is not repugnant to any written law. . If the marriage occurred under customary law, the granting of divorce is at the discretion of the Magistrate, who will take into account the appropriate tribal custom (as well as U.S. customs when one party is a U.S. citizen). Securing child protection through an interrogation of custom 8 2. The Ministry CUSTOMARY MARRIAGE If the marriage occurred under customary law, the granting of divorce is at the discretion of the Magistrate, who will take into account the appropriate CUSTOMARY MARRIAGE. PART VII OFFENCES AND PENALTIES 38. Forms of Marriage 75 2.6.1. The Legal framework for marriage registration is in accordance to the Marriage Act, Chapter 50 of the Laws of Zambia (Available online). (See par 3.3.5) 3. However, even in the face of this abandonment, Zambian law continues to treat civil marriages as superior to customary ones. Sources of Family Law and Succession Law 51 2.3.1. Some customary laws are actually enforceable by law (nationally),usually in local courts;for example traditional marriages are . To this end, it covers a variety of topics ranging from the history of the common law in Zambia, to the question o lawf th.e Hithert rule ofo . (a)Customary Law There has been an avalanche of definitions of the term customary law by a host of legal writers, scholars and Jurists. The pressure created on customary marriage in the light of continuous social changes and inter-marriages can no longer be ignored . In the case of Zambia, an AFRONET study concluded that "[o]f the five rungs of the (2) Save as provided in section 10 (1), no spouse in a customary marriage shall be competent to enter into a marriage under the Marriage Act, 1961 ( Act 25 of 1961 ), A civil marriage is contracted pursuant to the Marriage Act1 and is monogamous. Conversion from a custom ary marriage to a civil marriage, but not vice versa, should be allowed. Interpretation of Choice of Law Rules 67 2.5.2. The pressure created on customary marriage in the light of continuous social changes and inter-marriages can no longer be ignored. Sources of Family Law and Succession Law 51 2.3.1. Cotton and Diala Polygynous Customary Marriages 21 Zambia Marriage Act of Zambia 10 of 1918 amended by Act 13 of 1994 Matrimonial Act 20 of 2007 Zimbabwe Marriage Act Chapter Acts 81 1964 amended by 23/2004 2 2 Discourse Analysis, Constitutional Values, and Legal Interpretation Discourse analysis probes social reality through the language of texts. Conflicts between Customary Laws 72 2.6. Conflicts between Customary Laws 72 2.6. Marriages already solemnised in Zambia 36. Custom ( law) - wikipedia, the free encyclopedia Customary law is a recognized source of law within It is known in case law as Customary Rights has a specific meaning in English Law; References Www.jstor.org Book Reviews Other James B. Christensen 1 10 1953 599 600 599-600 Shona Customary Law: with Reference to Kinship, Marriage, the Family and . The Received Law 55 2.4. A claim by a customary law wife or husband for maintenance against the other (See section 6(3) (a) of the Maintenance Act [Chapter 5:09]. customary law and their marriage was dissolved by the local court at the Boma Courts on 8th January, 2002. 82 (2010) 10 AFRICAN HUMAN RIGHTS LAW JOURNAL Of particular importance in this article, however, is whether the protection of cultural rights at the international level constitutes a jus- tifiable reason for violating human rights. After that, there will be a fee for registering customary marriages which took place BEFORE the law came into force. The African customary law applicable to any matter before it in so far as such law is not repugnant to natural justice or morality or incompatible with the provision of written law. I (Juta, 1996) at 373, note 36. family-law-in-zambia-pdf 1/8 Downloaded from makeover.ixiacom.com on December 1, 2021 by guest [MOBI] Family Law In Zambia Pdf Eventually, you will unquestionably discover a extra experience and skill by spending more cash. Statutory Recognition of Customary Marriages In Zambia: Reforming colonial marriage laws By Dr. Elias Munshya on March 18, 2017 • ( 7) By Elias Munshya, BA, MA, MA, LLM, MBA, M.DIV. Marriage 3 A. Methodology and limita In Zambia, there is no one single definition of marriage. . The pressure created on customary marriage in the light of continuous social changes and inter-marriages can no longer be ignored. Home › Law › Statutory Recognition of Customary Marriages In Zambia: Reforming colonial marriage laws. The provisions of all by-laws and regulations made under the provisions of the Local Government Act and in force in the area of jurisdiction of such Local Courts, and See 'Consent to a customary marriage' 16 The practice of Ukuthwala will be briefly discussed in par 4.4 below. Answer: Customary Laws are effective mainly in a rural setting, they are used as a means to settle disputes amicably usually presided over by a chief or a village elder. Statutory Marriage. marriage officers, but they cannot solemnize a customary law marriage. Zambia has dual legal systems of customary law and statutory law that operate side by side and govern matters relating to land, property, contracts and personal relations such as marriage, divorce, and succession (Zambia Law Journal 1988, n1)."Customary law" refers to the customary laws of the various ethnic groups in Zambia and has not been codified (ibid., n3). Zambia. Landmark judgment for women in customary marriages. However, the cultural practices and norms without being written as law create both negative and positive impact on the rights and duties of parties involved under customary marriage which gives rise to a number of . 1.1 Definition of Terms. Every human being below the age of 18 years." Type of Law Statutory Law Customary Law Legal Age for Marriages Above the age of 21 (permitted between 16-20 by parental consent) After reaching puberty Parallel legal system- Customary vs. Sharpe-Phiri. Customary Marriage 75 2.6.2 . By definition, a customary marriage is a union that is negotiated, celebrated and concluded in terms of indigenous African customary law. Author: Zambia.Law Development Commission Patterns, formation of customary marriages in Zambia. There is no minimum age of consent to marry under Zambian customary law as current customary practice allows any girl who attains puberty to get married. eBook Download. According to the Ushi customary law which ought to have been invoked at the High Court level, the appellant was entitled to a reasonable share in property acquired during the subsistence of the marriage. These are Customary Law, Marriage, Dissolution,Custody and Maintenance. Interpretation of Choice of Law Rules 67 2.5.2. 17. Family Law in Zambia: Cases and Materials. After dissolution of the marriage, the applicant by originating summons sought for . SOURCEBOOK OF AFRICAN CUSTOMARY LAW FOR SOUTHERN AFRICA (1991)); see also T.W. But the customary law is used by magistrates and judges, who rely on written customary law and cannot find unwritten customary law unless they know it well. Customary Marriage In Zambia. But registration will be free for two years after the law comes into force. Hence there are two types of marriage—customary law marriage and statutory law marriage. There are three types of marriages recognized by law in Zambia, these are. CUSTOMARY LAW IN PATRILINEAL MARRIAGES IN ZAMBIA BY Eunice Mwisa NTHANI Supervisor: Ms Rosalie Katsande A Dissertation submitted in partial fulfilment of the requirements for a Masters Degree in Women's Law, Southern and Eastern African Regional Centre for Women's Law, University of Zimbabwe 2014 Such African customary law shall, save where the circumstances, nature or 17 Section 9 of the Constitution explicitly acknowledges the intersectionality of different grounds of Customary Mariage. customary law inferior to common law, and requires that the validity of customary law is determined against English norms of legality, justice, and morality (Muna Ndulo, African Customary Law, Customs and Women's Rights 2011). The registration process will be carried out by customary marriage officers. Costs of transmission of records, etc. 5 Law Reform & Development Commission, Report on Uniform Default Matrimonial Consequences Customary Marriage In Zambia Book Description : The dynamics of customary marriage set up in a country which has more than 73 Ethnic groupings is not only fascinating but, is also challenging to regulate. Customary law and intellectual property system: the issues What is customary law? Marriages, by customary law though polygamous, as under Islamic law, has a number of similarities with the other forms of marriage. For a consideration of the case-law that the Ordinance has engendered in Zambia, see Himonga, C. N., " Some aspects of the Zambian Marriage Act ", [1979 " Zambia Law Journal 23 Google Scholar and Hussain, S. J., " Breakdown of marriage in Zambia: judicial response to challenge ", [1979 " Zambia Law Journal 95 Google Scholar. a) Overarching legal framework for marriage Zambia practices a dual legal system; marriage, child custody, property rights and inheritance are governed by respective statutory and customary laws (CEDAW, 2010). Therefore, the law recognises marriages concluded under civil law and African customary law. Background Marriage in Zambia can validly be contracted either under customary law or civil law. View Silence in Marriage law in Southern Africa.pdf from LAW MISC at University of Namibia. Cotton and Diala Polygynous Customary Marriages Silences in Marriage Laws in Southern Africa: A precedent setting ruling earlier this month by a local court in Zambia has given women married under customary law the right to a share of marital property in the event of a divorce or death of the husband. . Widows under Zambiatl customary law 91 Principles of customary law of succession The pre-colonial law in Zambia was essentially customary in charac­ ter, having its source in the practices and customs of the people.5 The colonial regime recognised customary law at the outset.1> This is particu­ larly true in areas of personal law. Beyond "House, Money, Car": Why Ms. Kay Figo Deserved Compensation. The present study does not attempt to define "customary law", but some general comments on its character may be helpful. The Law: Sections 17 and 34 of Zambia's Marriage Act exempt all marriages under any African customary law from the minimum age of marriage requirements (normally 21 years) under the law. Records and evidence of such marriages 37. This means that customary law is often not understood or used