MATRIMONIAL CAUSES ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application

   4.   High Court to have jurisdiction in matrimonial causes

   5.   Certain children to be deemed to be children of the family

PART II
DISSOLUTION OF MARRIAGE

   6.   Restrictions on petitions for divorce within one year of marriage

   7.   Divorce not precluded by previous judicial separation

   8.   Ground for divorce

   9.   Proof of breakdown of marriage

   10.   Joinder of adulterer, etc

   11.   Claim for damages

   12.   Provisions relating to adultery

   13.   Unreasonable behaviour

   14.   Constructive desertion

   15.   Refusal to resume cohabitation

   16.   Consent in two years’ separation

   17.   Meaning of separation

   18.   Refusal of decree in five year cases on ground of grave hardship to respondent

   19.   Effect of resumption of cohabitation

   20.   Collusion to be a bar

   21.   Discretionary bars

   22.   Restriction on dissolution of marriage where petition for decree of nullity of the marriage is before the High Court

   23.   Relief for respondent in divorce proceedings

PART III
PRESUMPTION OF DEATH AND DISSOLUTION OF MARRIAGE

   24.   Proceedings for decree of presumption of death and of dissolution of marriage

PART IV
RECONCILIATION

   25.   Reconciliation

   26.   Statements, etc, made in attempt to effect reconciliation

PART V
NULLITY OF MARRIAGE

   27.   Grounds for decree of nullity of marriage

   28.   Prohibited degrees of consanguinity and affinity

   29.   Grounds on which marriage is voidable

   30.   Bars to relief where marriage is voidable

   31.   Incapacity to consummate marriage

   32.   Application of sections 41 and 43 to nullity proceedings

   33.   Effect of decree of nullity in case of voidable marriage

PART VI
JUDICIAL SEPARATION

   34.   Ground for judicial separation

   35.   Effect of judicial separation

   36.   Effect of judicial separation on devolution of property

   37.   Exercise of joint powers not affected

   38.   Decree of judicial separation not to be bar to subsequent proceedings for dissolution of marriage

   39.   Discharge of decree on resumption of cohabitation

   40.   Application of this Part to decrees made before commencement of Act

PART VII
DECREE NISI AND DEGREE ABSOLUTE

   41.   Decree nisi in first instance

   42.   Decree absolute where children under twenty one years, etc

   43.   When decree becomes absolute

   44.   Certificate as to decree absolute

   45.   Proceedings after decree nisi

   46.   Rescission of decree nisi where parties reconciled, etc

   47.   Rescission of decree nisi on ground of fraud, etc

   48.   Rescission of decree nisi on ground of miscarriage of justice

   49.   Rescission of decree where consent in relation to two years’ separation obtained by misrepresentation

   50.   Re-marriage

PART VIII
FINANCIAL RELIEF FOR PARTIES TO MARRIAGE AND CHILDREN OF FAMILY

   51.   Definition of marriage

   52.   Maintenance pending suit

   53.   Consideration by court of certain agreements or arrangements

   54.   General powers of court

   55.   Property adjustment orders in connection with divorce proceedings, etc

   56.   Powers of court in maintenance proceedings

   57.   Commencement of proceedings for ancillary relief, etc

   58.   Neglect by party to marriage to maintain other party or child of family

   59.   Duration of orders for periodic payments for party to marriage

   60.   Duration of orders for periodic payments in relation to children of family

   61.   Preparation of instrument for securing payments by order of court

   62.   Variation, etc of orders for financial relief

   63.   Payment of certain arrears to be unenforceable without leave of court

   64.   Orders for repayment in certain cases of sums paid under certain orders

   65.   Maintenance agreements

   66.   Alteration of agreements by court during life of parties

   67.   Alteration of agreements by court after death of one party

   68.   Avoidance of transactions intended to prevent or reduce financial relief

   69.   Orders for repayment in certain cases of sums paid after cessation of order on re-marriage of party

   70.   Payment, etc, under order made in favour of person suffering from mental disorder

PART IX
PROTECTION AND CUSTODY OF CHILDREN

   71.   Restrictions on decrees of dissolution, annulment or separation affecting children

   72.   Orders for custody and education of children in cases of divorce, etc, and for custody in cases of neglect

   73.   Power to provide for supervision of children

   74.   Additional jurisdiction in proceedings by a wife

   75.   Powers of court in custody, etc, proceedings

   76.   Power of court to make orders on dismissal of petition

PART X
INTERVENTION

   77.   Intervention by Attorney-General on request from court

   78.   Intervention of Attorney-General in other cases

   79.   Delegation by Attorney-General

   80.   Intervention by other persons

   81.   Rescission of decree nisi in consequence of intervention

   82.   Proceedings not to be taken to be finally disposed of before decree absolute

   83.   Procedure on intervention

PART XI
APPEALS

   84.   No appeal after decree absolute

   85.   Appeals

PART XII
RECOGNITION OF FOREIGN DECREES

   86.   Recognition of decrees made outside Zambia

PART XIII
EVIDENCE

   87.   Standard of proof

   88.   Evidence of husbands and wives

   89.   Evidence as to adultery

   90.   Proof of marriage, etc

   91.   Convictions for crimes to be evidence

PART XIV
ENFORCEMENT OF DECREES

   92.   Attachment

   93.   Recovery of moneys as judgment debt

   94.   Summary enforcement of orders for maintenance

   95.   Enforcement by other means

   96.   Enforcement of existing decrees

PART XV
GENERAL PROVISIONS

   97.   Institution of proceedings

   98.   Duty of court

   99.   Hearings to be in open court

   100.   Restrictions on publication of evidence

   101.   Injunctions

   102.   Costs

   103.   Frivolous or vexatious proceedings

   104.   Rules

   105.   Divorce and matrimonial proceedings commenced before commencement of this Act

      SCHEDULE

AN ACT

to make provision for divorce and other matrimonial causes; to provide for the maintenance of a party to a marriage and for children of the family; to provide for the settlement of property between parties to a marriage on the dissolution or annulment of the marriage; to provide for the custody or guardianship of children of the marriage to which the matrimonial proceedings relate; and to provide for matters connected with or incidental to the foregoing.

Act 20 of 2007.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Matrimonial Causes Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

“adopted”, in relation to a child, means adopted under the Adoption Act or under the law of any place outside Zambia relating to the adoption of children;

“appeal” includes an application for rehearing;

“cross-petition” includes an answer in which the respondent to a petition seeks a decree or declaration of a kind referred to in paragraph (a) or (b) of the definition of “matrimonial cause” in this sub-section;

“decree” means decree, judgment or order, and includes a decree nisi and an order dismissing a petition or application or refusing to make a decree or order;

“High Court” means the High Court for Zambia established by Article 94 of the Constitution;

“matrimonial cause” means—

      (a)   proceedings for a decree of—

      (i)   dissolution of marriage;

      (ii)   nullity of marriage; or

      (iii)   judicial separation;

      (b)   proceedings for a declaration of the validity of the dissolution or annulment of a marriage by a decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation;

      (c)   proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of children of the marriage or the maintenance, welfare, advancement or education of children of the family, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in paragraphs (a) or (b), including proceedings of such a kind pending at, or completed before, the commencement of this Act;

      (d)   any other proceedings, including proceedings with respect to the enforcement of a decree, the service of process or costs, in relation to concurrent, pending or completed proceedings of a kind referred to in paragraphs (a), (b) or (c), including proceedings of such a kind pending at, or completed before, the commencement of this Act; or

      (e)   proceedings seeking leave to institute proceedings for a decree of dissolution of marriage or of judicial separation, or proceedings in relation to proceedings seeking such leave;

“petition” includes a cross-petition;

“petitioner” includes a cross-petitioner;

“proceedings” includes cross-proceedings;

“respondent” includes a petitioner against whom there is a cross-petition;

“rules” means the rules made under section 104;

“Supreme Court” means the Supreme Court of Zambia established by Article 92 of the Constitution; and

“welfare officer” means any Social Welfare Officer employed in the public service.

   (2) For the purposes of this Act, the date of a petition shall be taken to be the date on which the petition was filed in the registry of the High Court.

3.   Application

The provisions of this Act shall apply to marriages solemnised in accordance with the Marriage Act or the law of a foreign state and shall not apply to marriages contracted in accordance with customary law.

4.   High Court to have jurisdiction in matrimonial causes

   (1) The High Court, hereinafter referred to as “the court” shall have and exercise, subject to the provisions of this Act, jurisdiction and power in relation to matrimonial causes instituted or continued under this Act.

   (2) Notwithstanding sub-section (1) of section 11 of the High Court Act or any other written law, the jurisdiction of the court in divorce and matrimonial causes and related matters shall, after the commencement of this Act, be exercised only in accordance with the provisions of this Act.

   (3) The court shall have jurisdiction in proceedings for divorce or for a decree of nullity of marriage if either party to the marriage—

      (a)   is domiciled in Zambia at the date of the commencement of the proceedings; or

      (b)   is resident in Zambia at the date of the commencement of the proceedings, and has been ordinarily so resident for a period of not less than twelve months immediately preceding that date.

5.   Certain children deemed to be children of the family

   (1) For the purposes of the application of this Act in relation to a marriage—

      (a)   a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;

      (b)   a child of the husband and wife born before the marriage, whether legitimated by the marriage or not; and

      (c)   a child of either the husband or wife, including a child born outside wedlock to either one of them and a child adopted by either of them, if at the relevant time the child was ordinarily a member of the household of the husband and wife and accepted by both as a member of the family;

shall be deemed to be a child of the family, and a child of the husband and wife:

Provided that a child born before the marriage, whether legitimated by the marriage or not, who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.

   (2) For the purposes of paragraph (c) of sub-section (1), in relation to any proceedings the relevant time is—

      (a)   the time immediately preceding the time when the husband and wife ceased to live together or, if they have ceased on more than one occasion to live together, the time immediately preceding the time when they last ceased to live together before the institution of the proceedings; or

      (b)   if the husband and wife were living together at the time when the proceedings were instituted, the time immediately preceding the institution of the proceedings.

   (3) The provisions of sub-sections (1) and (2) shall apply in relation to a purported marriage that is void as if the purported marriage were a marriage.

PART II
DISSOLUTION OF MARRIAGE

6.   Restriction on petitions for divorce within one year of marriage

   (1) No petition for divorce shall be presented to the court unless, at the date of the presentation of the petition, one year has passed since the date of the marriage.

   (2) Nothing in sub-section (1) shall prohibit the presentation of a petition based on matters which have occurred before the expiration of one year from the date of the marriage.

7.   Divorce not precluded by previous judicial separation

   (1) A person shall not be prevented from presenting a petition for divorce, or the court from granting a decree of divorce, by reason only that the petitioner or respondent has at any time, on the same facts or substantially the same facts as those proved in support of the petition, been granted a decree of judicial separation.

   (2) On a petition for divorce pursuant to sub-section (1), the court may treat the decree as sufficient proof of any adultery, desertion or other fact by reference to which it was granted, but shall not grant a decree nisi of divorce without receiving evidence from the petitioner.

8.   Ground for divorce

A petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

9.   Proof of breakdown of marriage

   (1) For purposes of section 8, the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts—

      (a)   that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

      (b)   that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

      (c)   that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

      (d)   that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; or

      (e)   that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

   (2) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

   (3) If the court is satisfied on the evidence of any fact mentioned in sub-section (1), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall grant a decree of dissolution of marriage.

   (4) 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.

10.   Joinder of adulterer, etc.

   (1) Where in a petition for divorce or in an answer to such a petition, a party to the marriage is alleged to have committed adultery with a specified person, whether or not a decree of dissolution of marriage is sought on the grounds of the adultery, that person shall, except as provided by the rules, be made a party to the proceedings.

   (2) Where a person has been made a party to proceedings for a decree of dissolution of marriage in pursuance of sub-section (1), the court may, on the application of that person, after the close of the case for the party to the marriage who alleged the adultery, if it is satisfied that there is not sufficient evidence to establish that the person committed adultery with the other party to the marriage, remove that person from the proceedings.

11.   Claim for damages

   (1) A party to a marriage, whether husband or wife, may, in a petition for divorce on the ground that the other party to the marriage has committed adultery with a person, or on grounds including that ground, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage and, subject to this section, the court may award damages accordingly.

   (2) Damages shall not be awarded against a person where the adultery of the respondent with that person has been condoned, whether subsequently revived or not, or if a decree of dissolution of the marriage on the ground of the adultery of the respondent with that person, or on grounds including that ground, is not made.

   (3) Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition.

   (4) The court may direct in what manner the damages awarded shall be paid or applied and may, if it thinks fit, direct that they shall be settled for the benefit of the respondent or the children of the family.

12.   Provisions relating to adultery

   (1) For the purposes of paragraph (a) of sub-section (1) of section 9, a petitioner shall not be entitled to rely on adultery committed by the respondent if, after it became known to the petitioner that the respondent had committed adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months.

   (2) If the parties have lived with each other after the adultery for a period of six months or less, that time shall be disregarded in determining for the purposes of paragraph (a) of sub-section (1) of section 9 whether the petitioner finds it intolerable to live with the respondent.

13.   Unreasonable behavior

Where in any proceedings for divorce the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot be expected to live with the respondent, but the parties to the marriage have lived with each other for a period or periods not exceeding six months after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support the petitioner’s allegation, that fact shall be disregarded in determining for the purposes of paragraph (b) of sub-section (1) of section 9 whether the petitioner cannot reasonably be expected to live with the respondent

14.   Constructive desertion

   (1) A married person whose conduct constitutes just cause or excuse for the other party to the marriage to live separately or apart, and occasions that other party to live separately or apart, shall be deemed to have willfully deserted that other party without just cause or excuse, notwithstanding that the person may not in fact have intended the conduct to occasion that other party to live separately or apart.

   (2) For the purposes of paragraph (c) of sub-section (1) of section 9, the court may treat a period of desertion as having continued at the time when the deserting party was incapable of continuing the necessary intention, due to mental illness or otherwise, if the evidence before the court is such that, had that party riot been so incapable, the court would have inferred that the respondent’s desertion continued at that time.

15.   Refusal to resume cohabitation

   (1) Where a husband and wife are parties to an agreement for separation, whether oral, in writing or constituted by conduct, the refusal by one of them, without reasonable justification, to comply with the other’s bona fide request to resume cohabitation constitutes, as from the date of the refusal, wilful desertion without just cause or excuse on the part of the party so refusing.

   (2) For the purposes of sub-section, “reasonable justification” means reasonable justification in all the circumstances, including the conduct of the other party to the marriage since the marriage, whether that conduct took place before or after the agreement for separation.

16.   Consent in two years’ separation

Provision shall be made by rules of court for the purpose of ensuring that where pursuant to paragraph (d) of sub-section (1) of section 9 the petitioner alleges that the respondent consents to a decree being granted, the respondent has been given sufficient information to enable the respondent to understand the consequences to the respondent of the respondent’s consenting to a decree being granted and the steps which the respondent must take to indicate that the respondent consents to the grant of a decree.

17.   Meaning of separation

   (1) For purposes of paragraphs (d) and (e) of sub-section (1) of section 9, the parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties.

   (2) A decree of dissolution of marriage may be made upon the fact specified in paragraph (e) of sub-section (1) of section 9 notwithstanding that there was in existence at any relevant time—

      (a)   a decree or order of a court suspending the obligation of the parties to the marriage to cohabit; or

      (b)   an agreement between those parties for separation.

18.   Refusal of decree in five year cases on ground of grave hardship to respondent

   (1) The respondent to a petition for divorce in which the petitioner alleges five years separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage.

   (2) Where the grant of a decree is opposed under this section, then—

      (a)   if the court finds that the petitioner is entitled to rely in support of the respondent’s petition on the fact of five years’ separation and does not rely on any other fact mentioned in sub-section (1) of section 9; and

      (b)   if apart from this section the court would grant a decree on the petition; the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if the court is of the opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage, it shall dismiss the petition.

   (3) For the purpose of this section hardship shall include the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved.

19.   Effect of resumption of cohabitation

   (1) For the purposes of proceedings for a decree of dissolution of marriage, in calculating any period for which the parties have been living separately and apart, and in considering whether such period has been continuous, no account shall be taken of any one period, not exceeding six months, during which the parties resumed cohabitation with a view to reconciliation.

   (2) For the purpose of sub-section (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.

20.   Collusion to be a bar

The court may, in its discretion, refuse to make a decree of dissolution of marriage if the petitioner, in bringing or prosecuting the proceedings, has been guilty of collusion.

21.   Discretionary bars

The court may, in its discretion, refuse to make a decree of dissolution of marriage upon the ground specified in section 8, if, since the marriage—

      (a)   the petitioner has committed adultery that has not been condoned by the respondent or, having been so condoned, has been revived;

      (b)   the petitioner has been guilty of cruelty to the respondent;

      (c)   the petitioner has willfully deserted the respondent before the happening of the matters constituting the ground relied upon by the petitioner or, where that ground involves matters occurring during, or extending over a period, before the expiration of that period; or

      (d)   the habits of the petitioner have, or the conduct of the petitioner has, conduced or contributed to the existence of the ground relied upon by the petitioner.

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