The law of marriage and divorce among the Malozi of Western Zambia
Date
2011-10-27
Authors
Kakula, Liyoka
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Abstract
This thesis looks at the family law of one of the ethnic groups in Zambia, namely, the Lozl people. The discussion is centred on marriage and divorce.
The marriage contract is one of the most complicated aspects of any customary law: the distinction between custom and law is so slim that it is tempting to substitute one for the other. Furthermore, there is always the temptation to discuss the custom at the expense of the law. Certain customary essentials could in one way or another give rise to legal implications. The test, therefore, is to ask whether the apparent custom gives rise to legal consequences.
Part One of the thesis examines the ways in which a marriage contract may be concluded. Necessarily, Part One looks at the essentials of a valid marriage contract under Lozl law. In discussing the marriage contract, some distinctions are made between the marriage contract under Lozi law and the marriage contract under statute. This distinction is important because of the problems which arise in a "dual marriage," that is to say, in a marriage which satisfies both the customary and statutory requirements.
Attention is focused on the effect of the marriage contract in relation to the spouses. The effect is contrasted with marital property under statutory law.
Part Two discusses the matrimonial rights and obligations created by the marriage contract. Unlike in statutory marriage,
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failure to observe contractual marital obligations gives rise to various grounds for divorce. In statutory marriage, however, the allowable grounds for divorce are neatly set out in the Act. Although some obligations are customary and do not have any legal consequences, the cumulative effect of customary requirements could result In legal obligations. For example, it 1s customary that a husband must provide his family with relish. Although the wife may not petition for divorce because of her husband's failure to provide relish, she can use it as ground for negligence if he persists in his failure to provide it. A valid contract confers sexual rights on the partners. The husband enjoys exclusive sexual rights, and any Infringement of this right entitles him to compensation. On the other hand, the wife cannot sue her husband for adultery, although adulterous behaviour may be evidence of negligence. A distinction is also made here between the concept of marriage under Lozi law and marriage under the statute.
Part Three discusses the termination of the marriage contract. The discussion here is contrasted with termination of marriage under the statute. Comparisons are made between the grounds for divorce and the facts that must be proven. It will be seen that the grounds for divorce under Lozi law are almost endless compared to those available to a statutory marriage. This part of the thesis proves, as 1t 1s asserted in Chapter One, that law must be dynamic and responsive to the needs of the society in which it operates. The endless grounds for divorce are 1n keeping with this notion. New grounds must always be made available to adjust to changes taking place 1n the society. As an example, twenty years back, going to town for two years leaving the wife at home in the village would not give rise to termination of marriage. The circumstances then were such that a wife could not accompany her husband to town because Africans were migrant workers whose rightful place was in the village. Today, the wife who has been left in the village for two years can petition for divorce on the ground of negligence. Since Independence, the movements of people to and from town have been relaxed and therefore there is no reason why a man who intends to stay away from home for two years should not have his wife accompany him.
Part Three also examines the courts invested with jurisdiction to dissolve a customary marriage. The discussion here includes the various ways In which a Lozi marriage may be terminated. For example, divorce can be obtained by mutual consent, abduction, or elopement.
This part analyzes the effect of termination of the marriage contract on the children, especially in custody matters. The involuntary termination of the marriage contract is also discussed (termination by death).Since this is an area surrounded by superstitution and custom. Caution has been exercised to confine the discussion to the legal issues.
Part IV discusses the current issues of Lozi law of marriage and divorce. It is devoted to discussing the intertribal marriages, their impact on Lozi laws of marriage and divorce, and the effect of statutory marriages on customary law.
This 1s yet another area where law reacts to changes in the society. It Is an area where we see law in the making. The changes
taking place since independence are being reflected in the changes in Lozi customary law. Uhat was viewed as an anathema to Lozi law ten years ago is being tolerated today and may become part of Lozi customary lav/ in the future. That was thought to be the proper law ten years back is resented today and may be anathema tomorrow. For example, arranged marriages were very common ten years ago but today are very rare. In a few years, arranged marriages will simply be part of history. Similarly, it was unusual ten years ago to hear of couples arranging their own marriage without prior consent of their parents. Today, it is a common occurrence. These changes are dictated by changed circumstances. They are evidence that law is but a set of rules made by a society in response to circumstances prevailing in a particular community.
Finally, customary marriage is contrasted to statutory marriage. This area may provide a starting point for fusing customary family law with statutory family law.
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Keywords
Marriage law -- Zambia -- Western province , Divorce suits -- Zambia -- Western province , Lozi (Zambian people)