TYPES OF MARRIAGES AND THE CONTRACT OF MARRIAGE

Question 1

what are the two types of valid contracts of marriage?

Answer 1

statutory and customary marriages

Question 2

what is a statutory marriage?

Answer 2

the voluntary union for life of one man and one woman to the exclusion of all others.

Question 3

in which case was the definition of the statutory marriage made?

Answer 3

Hyde v Hyde and Wood Mansee

Question 4

The people v Chitambala

Answer 4

case on bigamy
In this case the accused had contracted a valid civil law marriage with one Annie Mumbi on 12th April, 1964 in accordance with the requirements of the then Marriage Ordinance Cap 132. The accused later contracted another marriage with Grace Lombe.
The accused put up a defense that he had an honest belief on reasonable ground that at the time of his second marriage his former marriage had been dissolved. It was now to be decided whether the defence put up by the accused satisfied the court that
he had a infect such honest belief and that it was based on reasonable ground. The accused was convicted of bigamy.

Question 5

BEFORE 1963

Answer 5

, Africans in Zambia, did not qualify to contract marriages
under the then Marriage Ordinance, as it did not apply to them. This meant that Africans in
Zambia, before 1963, could only marry under their customary laws of marriage. They could not
marry under the then Marriage Ordinance even if they wanted. This was not until the law was
amended in 1963 making it applicable to all who chose to be affected by it.

Question 6

WHAT ARE THE REQUIREMENTS OF A VALID STATUTORY MARRIAGE?

Answer 6

1. NOTICE
2. Residency
3. Age and consent of parents or guardian judge
4. sex of the parties
5. prohibited degree of kindred or affinity
6. Parties to marriage must be single parties
7. Solemnization of marriage

Question 7

Notice

Answer 7

There must be Notice of the intention to marry made to the Register of Marriages of the district
in which the marriage is intended to take place. The Notice must be given not less than 21 days
before the date of solemnization of the marriage. The Notice must be given by one of the parties
to the intended marriage, and this notice must be signed by that party.

Question 8

Residency

Answer 8

Section 10 of the Marriage Act requires that one of the parties to the intended marriage must
have been a resident of the district in which the marriage is intended to be solemnized for at least
15 (fifteen) days immediately preceding the granting of the marriage of the marriage certificate.

Question 9

Age and consent of parents or guardian judge

Answer 9

It is important to note therefore that, according to section 10 (1) (ii), a person who is at least 16 years old can validly get married under civil law. However, the section requires that were the
party is at least 16 years old, but less than 21 years old, such party world require the prior valid
consent of their parent or guardian for the marriage to be valid. However, it is important to note that such prior consent of the parent or guardian is only required when a party to the intended
marriage is at least 16years old but less than 21 years and that such a party is not a widow or
widower.
It follows from the above that where a party to an intended marriage is 16years but less than
21years old, the consent of the parent or guardian would not be needed if such a party is either a
widow or widower.
In addition, it is important to note that section 19 of the Act allows a judge of the High Court to
give consent to a marriage, where any parent or guardian whose consent to a marriage is
required, refuses to give his/her consent. Furthermore, the section allows a judge to give such
consent where there is no parent or guardian to give the consent.

Question 10

SEX OF THE PARTIES

Answer 10

It follows therefore that under the Zambian law, it is illegal for parties of the same sex to purport
to have married each other. It is for this reason that “gay marriages” are not practiced in Zambia
and this basically entails that such associations will not constitute a marriage. In addition, such
associations will constitute a criminal offence under The Penal Code Act Cap 87 of the laws of
Zambia

Question 11

prohibited degree of kindred or affinity

Answer 11

Statutory law prohibits marriage between certain persons who are blood relatives e.g. a sister
marrying her blood brother (kindred). On the other hand, certain persons who are related
through marriage are prohibited. For example, marriage between a man and his wife’s mother is
prohibited

Question 12

Parties to marriage must be single parties

Answer 12

This provision prohibits polygamy in a statutory marriage but allows a conversion of customary
marriage into a statutory marriage.

Question 13

Solemnization of marriage

Answer 13

Section 20 of the Act provides that:
A marriage must be solemnized by a licensed person (called Minister), in a licensed building or
place, and that the solemnization must take place with open doors and between the hours of six
o‟clock in the forenoon (morning) and six o‟clock in the afternoon, and it must be in the presence
of two or more witnesses besides the officiating Minister.

Question 14

What are the similarities between a customary marriage and a statutory marriage?

Answer 14

1. Both unions must be between parties of the opposite sex

Question 15

What are Differences between customary marriages and statutory marriages ?

Answer 15

1. Polygamy
2. Age
3. Lobola
4. Consent of the parties to the marriage- that of the families concerned
5. Divorce

Question 16

Sowa v sowa

Answer 16

Case under polygamy
- the parties were married under Ghana customary law and the marriage was potentially polygamous, although monogamous at that moment, it was held that the man was free to marry another wife, thereby turning the marriage into a polygamous one.

Question 17

R v Chinjamba

Answer 17

Case on age
- a villager married a girl under the age of sixteen years and lived with her as man and wife.
- the accused who was the village headman, knew of these facts and took no steps to prevent or report the matter.
- he was charged with being with an accessory after the fact to unlawful carnal knowledge of a girl under the age of sixteen years.
- the matter was called for review by the high courts
- on review, it was held that “ it is not unlawful for a man to have carnal knowledge of a girl to whom he is lawfully married, despite the fact that the girl is under sixteen years of age.