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Matrimonial Causes Act, 2007

A divorce petition cannot be filed until one year after the marriage, and the court must examine the facts before deciding whether to grant dissolution. In divorce proceedings based on unreasonabl…

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Zambia
Structure
53 provisions
Citation
Act 20 of 2007
Dates
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01

Purpose and legislative effect

“A divorce petition cannot be filed until one year after the marriage, and the court must examine the facts before deciding whether to grant dissolution.”

A divorce petition cannot be filed until one year after the marriage, and the court must examine the facts before deciding whether to grant dissolution. In divorce proceedings based on unreasonable behaviour, the court must ignore a period of up to six months of continued cohabitation after the final incident when deciding whether the petitioner can reasonably be expected to live with the respondent. A married person may be deemed to have wilfully deserted the other spouse if their conduct causes the other spouse to live separately or apart, even without intent. The court may also treat a desertion period as continuing in certain mental-illness incapacity cases, and refusal to resume cohabitation after a separation agreement can count as wilful desertion unless reasonably justified. Rules of court must ensure a respondent is told enough to understand the consequences of consenting to a decree and what steps to take to show consent. For section 9(1)(d) and (e), spouses may be treated as separated even if only one spouse ended the cohabitation.

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ln 's daughtr:t'i hu•b!llld

A woman’s marriage is prohibited where the man is, or has been, in the relationship described in the text.

Section 51

04

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Showing 53 of 53 provisions

Provision 36Commencement 12Interpretation 3Offence 2

Part

PART II

§ 6Restrictions on petitions· for divorce within one year ofProvision

A divorce petition cannot be filed until one year after the marriage, and the court must examine the facts before deciding whether to grant dissolution.

6. (I) No petition for divorce shall be presr;nllld lo the Court unless, at the dnte of the presentation of the petition, one year has passed since the date of the marriage. ' . . I ' SOE LOOlJO Ot 'OJIIJ JO uopu1u=s;1Jd :iq1 l\q\qo1d U8t!S (I} uo,1::i�qns u1 'auJqlON. 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(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 subsection (I), then, unless it is satisfied on all the evidence that the marriage ha.,; not broken down irretri evably, it shall grant a decree of dissolution of marriage. (4) A decree of dissolution of marriage shail not be.made if the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed, 1 0. (I) 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 wlth 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 ofsubsection (I), the Court may, on the application of that person, after the close of the c11se for the p11rty to the marriage who alleged the 11duhery, ifit is s111isficd th11t there is not sufficient evidence to establish that the person committed adultery with the other party 10 the m11rriage, remove that person from the proceedings. U. (I) 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 thafperson has committed adultery wilh the other party to the marriage and, subject to this section, the Court may award damages accordingly. (2) Damages shall nol 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 ofthe petition. ' ' Marrimon/al Causes [No. 20 of2007 307 (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, (I) For the purposes of paragraph (a) ofsubsection (1) of section nine, a petitioner shall not be entitled to rely on adultery committed hy the respondent if, after ii became known to the petitioner that the respondent had committed adullery, the parties have lived with each other for a period exceeding. or periods together exceeding. six months. (2) lflhc parties have lived with each other after the adu\lery for a period of six months or less, that time shall be disregarded in determining for the purposes of paragraph (a) of subsection (I) of section nine whether the petitioner finds it Intolerable to live with the respondent. Pr1.1visiont rcla1ing to aduhecy
Section 6Verify source
§ 13Unreasonable behaviourProvision

In divorce proceedings based on unreasonable behaviour, the court must ignore a period of up to six months of continued cohabitation after the final incident when deciding whether the petitioner can reasonably be expected to live with the respondent.

13. Where i n any proceedings for divorce the petitioner alleges Unr=onabtc that the respondent has behaved in such a way that the petitioner behaviour cannot be expected to live with the respondent, bu1 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 pelitioner and held by the Court to support the petitioner's allegation, lhal fact shall be disreg1nded in determining for the piirposes of paragraph (h) ofsuhsection (I) of section nine whether the petitioner cannot reasonably be expected to live with the respondent
Section 13Verify source
§ 14(1) A married person whose conduct constitutes just cause Conm1.1e1iveProvision

A married person may be deemed to have wilfully deserted the other spouse if their conduct causes the other spouse to live separately or apart, even without intent. The court may also treat a desertion period as continuing in certain mental-illness incapacity cases, and refusal to resume cohabitation after a separation agreement can count as wilful desertion unless reasonably justified.

14. (1) A married person whose conduct constitutes just cause Conm1.1e1ive or excuse for the other party to the marriage to live separately or deiertiC1n apart, and o ccasions that other party to live separately or apart, shall be deemed to have wilfully 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 parasraph (c) of subsection (I) of section nine, the Court may treat a period of desertion as having continued 111 the time when the deserting party was incapable of continuing the necessary intention. due to ment.111 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 responden1's desertion continued at that time. 308 [No. 20 of2007 Matrimonial Causes Rtfu.ql to rcsurn� cc,hahhution Consent in lW" )Cdr �cpllratlon 15, (I) Where a husband nnd v.ifearc parties to an ngreement for :-.eparation, whether oral, in writing or constitutc:d by conduct, 1he refusal by one of1hem, without reasonable justification. to comply with the other's ban a tide request to rc::sume cohabitation constitutes, as from the dntc of the refusal, wilful desertion without just cause or excuse on the part of the party so refusing. (2) For 1he purposes of subsection (n. ·•reasonable justification" means reasonable justification in a 11 the circumstances, including the conduc:1 of the other party to the marriage since the marriage, whether that conduc\ look place before or after the agreement lbr separation.
Section 14Verify source
§ 16Consent in two years' separalionProvision

Rules of court must ensure a respondent is told enough to understand the consequences of consenting to a decree and what steps to take to show consent.

16. Provision shall be made by rules of court for the purpose of ensuring thal where pursuant to paragraph (d) of subsection (1) of scclion nine the petitioner alleges Iha! lhc respondent consents to a decree being granted, the respondent has been given sufficient information lo enable the respondcnl to understand the consequences to the respondent oflhc respondent's consenting to a decree being granted and the s1eps which the respondent must take to indica10 that the respondent consents to the grnnt of a decree. Mcunln� \>f �paratlnn
Section 16Verify source
§ 17Meaning ofseparationProvision

For section 9(1)(d) and (e), spouses may be treated as separated even if only one spouse ended the cohabitation.

17. (I) For purposes of paragraphs (d) and (e) of:,ubsoction (I) of section nfne. the parties to a marriage may be held to have �eparated notwithstanding 1hat 1he cohabitation was brousht 10 an end by the ac1ion or conduc1 of only one of the p.,rties. (2) i\ dccreeofdissolutionofmarriage may be made upon the fa<.'t specified in paragraph (e) of subsection (I) of,.;cction nine notwithstanding that there wns in existence nt nny relevant timc- (aJ a decree or order of a court suspending the obligation of the parties to the marriage to cohabit; or (h) an agreement bt::tween those parties for separa1ion. '" I ' Matrimonial Causes [No. 20 ol 2007 309
Section 17Verify source
§ 18(I) The respondent to a petition for divorce in whichProvision

A divorce respondent may oppose the decree if five years’ separation is alleged and hardship would make dissolution wrong; the court must consider the circumstances and dismiss the petition if those conditions are met.

18. (I) The respondent to a petition for divorce in which the petitioner alleges five years separation may oppose the srant of a decree on the ground that the dissolulion of the marriage will result in grave financial or other hardship 10 the respondent and that it would in all 1he circumstances be wrong to dissolve the marriage. (2) Where the grant ofa decree is npposed under this sectinn, Refusal of decree !n live year cal>C, on ground of om·, bl!l'dship lO re�poml�nL 1hcn- (a) if the Court tinds that the petitil'lncr is entitled to rely in support of1he n:spondeni's petition on the fact of live years' separation and does not rely on any other fact mentioned in subsection (l) of section nine: and (b) ifopnn from this section the Coun would grant a decree on the pctilion;the Court shall consider all the circumslanccs, including the conduct of the parties tu the marriage and 1he interests of those parties and ,,f any children or other persons concerned, and if1he Court is of the opinion 1hat the dissolution of1hc mnrriagc will result in grave financial or other hardshi11 to the respondent and that it would in all the circumstances be wrong to dissolve the marriage, it shall dismiss the pelition. (J) Fur 1ho purpoeog of this 11eotion hnrdshir �hnll !nolulle th1< loss of the cham:c or acquiring any benefit which lhti respondent might acquire if the marrias:e were not dissolved.
Section 18Verify source
§ 19Effect of resumption of cohabil.ationProvision

In dissolution-of-marriage proceedings, short reconciliation cohabitation periods (up to six months) are not counted against separation continuity, and the court may disregard non-substantial interruptions. The court may also refuse a dissolution decree if the petitioner was guilty of collusion.

19. (l) F'or the purposes of proceedings for a decree of llff��t nr naump1lon ,r tohublwion dissolution of marriage, in calculating any period for which the parties have been living separalely and apart, and in considering whethersuch period has been continuous, no account shall be tnken of any one period, not exceeding six month�, during \\'hich the parties resumetl cohabitation with a view to reconciliatiun. (2) For the purpose ofs11bsec1ion (I). a periodofcohabitation shall be deemed to have continued during any interruption of the cohabitation thut, in the opinion oflhe Court, was not substantial. 310 [No, 20 of2007 Matrimonial Causes Collusion to be A bar DiscreCionary bm :ZO, 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.
Section 19Verify source
§ 21Dlscre1ionary barsProvision

The Court may refuse to grant a decree dissolving a marriage if certain conduct by the petitioner happened after the marriage.

21. The Court may, in its discretion, refuse to.make a decree of dissolution of marriage upon the ground specified in section eight, 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 ha� been guilty of cruelty to the respondent; (c) the petitioner has wilfully deserted the respondent before the happening of the matters constituting the ground rel led upon by the petitioner or, where that ground involves matters occurring during, or ex.tending 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 hy the petitioner,
Section 21Verify source
§ 22Restriction on di.�solution of marriage whero petition for decreeProvision

If a nullity petition is before the Court, the Court cannot grant dissolution of the marriage unless that nullity petition has been dismissed.

22. Where a petition for a decree ofnullity of any marriage is before the Court, the Coun shall not make a decree of dissolution of that marriage unless the Court has·dismissed.the petition for a decree of nullity of that marriage. Restriction on dissnlutlon or -­l)Cl!tlon for :h�i o�5 decree of the beforctigh Court Relief for respondent in divorce pro()Ced!ngs
Section 22Verify source
§ 23Relief for respondenl in divorce proceedingsProvision

In divorce proceedings, the court may grant the respondent the relief they would have received had they filed the petition, if they allege and prove the listed facts from section 9.

23. If in any proceedings for divorce the respondent alleges and proves any ofthe facts referred to in paragraphs (a} to (e) of subsection (i) of section nine, treating the respondent as the petitioner and the petitioner as the respondent for the purposes of that subscctiOn, the Court may give to the respondent the relief to which the respondent would have been entitled if the respondent had presented a petition seeking that relief. , , Matrimonial Causes [No. 20 012007 311 PART III PRESUMPTION OF DEATH ANO D1ssomnoN Of M1,RR1AOF. 24, ( I) Any married person who alleges that reasonable ,grounds exist for supposing that the other party to tho maniagc is dead may present a petition to the Court to have it presumed that the other party is dead and lo have the marriage dissolved, and the Court, if satisfied that such reasonable grounds ex.isl, may make a decree of presumption of death and dissolution of the marriage. P1occodi11s, for decree or presumption of death and dlswlulionor maninsc (2) 1n such proceedings the fact thal for a period of seven years or upwards the other party lo the marriage has been continually absent from the petitioner, and the petitioner has no reason to believe that the party has been living within that time, shall be evidence that he or she Is dead until the contrary ls proved, (3) Part VII shall aµply to a decree under this section as it applies to a decree of dissolution of marriage. PART IV RfCONCU.IATION
Section 23Verify source

Part

PART IV

§ 25(I) Where proceedings for divorce have been lns1ituted ReronciliationProvision

In divorce proceedings, the court must require the petitioner’s advocate to certify whether reconciliation was discussed and the parties’ contact details for help were given. If reconciliation seems reasonably possible, the court may adjourn or interview the parties, and must resume the hearing after at least 14 days if either party asks.

25. (I) Where proceedings for divorce have been lns1ituted Reronciliation by a party to a marriage the Court shall require the advocate for the petitioner to certify whether the advocate has discussed with the petitioner !he possibility or reconciliation and given the petitioner the names and addresses or persons qualified to help effect a reconcilialion between panics to a marriage who ha'Je become estranged, (2) If, in such proceedings, it appears al any time to the Court from lhe evidence or the a!litude of the panics, or of either of 1hem, that there is a reasonable possibility of a reconcilia1ion between the parties to the marriage, the Court may- (a) adjourn the proceedings for such period as it thinks fit to afford the parties an opportunity to consider a reconcilia1ion and to enable attempts to be made to effect such a reconciliation; or (bJ interview the parties in chambers with or without counsel, as the Court thinks proper, with a view to effecting a reconciliation. (3) Jfnot less than fourteen days af\er an adjournment under paragraph (a) of subsection (2) has taken place, eitherofthe parties to the marriage requests that the hearing be procei:ded wilh, the Court shall n=sume the hearing, 312 [No. 20 of2007 Matrimonial Causes (4) The power conferred on the Court by subscc1ion (2) is additional to any other power ofthe Court to adjourn proceedings. 26, Evidence or anything said or of any admission made in the course ofan endeavour 10 effect 11 reconciliation under this Part is nm admissible in any court. Statcmc11ts, cte .. mndc in attempt to ettcct n:conci!iation Grounib for ,�� ofnulUty of marriage Cap. 50 Prohibi1cd dc&rcciof ronsanguinil)' and nffini1y Ground$ on which mnrringcis voidable Cnp. 305 PART Y NULLITY or- MA.RRII\GE
Section 25Verify source

Part

PART Y

§ 27Grounds fordecrccofnullityofmarriageCommencement

A marriage celebrated after the Act starts is void if one of the listed grounds applies.

27. (I) A marriage cclebmtcd after the commencement of this Act shall be void on the following grounds: (a) that the marriage is not a valid marriage under the provisions of the Marriage Act due to the fact that­ (i) the par1ies arc within the prohibited degrees of consanguinity or affinity; (Ji) subject to the proviso to subsection (I) ofsection thMy•three of that Act, either of the parties was under the age of sixteen; (iii) the parties have not complied with the requirements of the Act with respect to the solemnisation of the marriage as specified in subsection (2) of section lhirty•two of that Act; (b) that either party to the marriage was lawfully married to some other person at the time of the marriage; or (c) the parties to the marriage are ofthe same sex. (2) Nothing, in this section shall be eon:;trued as validating any marriage which is by law void but with respect to which a decree of nullity has not been b'f'anted.
Section 27Verify source
§ 18The prohibited degrees of consanguinity and pffinityProvision

This section says the prohibited degrees of consanguinity and affinity are the ones listed in the Schedule.

18. The prohibited degrees of consanguinity and pffinity referred to in subparagraph (i) of paragraph (a) of subsl!ction ( I) of section twenly•,feven arc those set out in the Schedule.
Section 18Verify source
§ 29Grounds on which marriage is voidableCommencement

A marriage celebrated after the Act starts, and that is not void, is voidable if certain grounds exist.

29. A marriage which is celebrated after the commencement of th is Act, not being a marriage that is void, shall bi: voidable on the grounds thal- (u) the marriage has not bi:en consummated due to the incapacity of either party to consummntc it; (b) the marriage has not been consummated due to the wilful refusnl of the respondent to consummate it; Matrimonial Causes [No, 20 of2007 313 (c)' either party to the marriage did not validly consent to it, whether in consequence of duress, mislake, unsoundness of mind or otherwise; (d) at the time of the marriage either party, though capable of giving a valid consent, was suffering, whether continuously or imermittently, from a mental disorder within themeaningofthoMental Disorders Act of such cap. Jo, a kind or tosuoh a n extent as to be unfitted for marriage; (e) al the time ofthe marriage the respondent was suffering from a sexually lrnnsmitted disease in a communicable fonn; or (/)at the time of the marrias;e lhe respondent was pregnant by someone other than 1he petitioner.
Section 29Verify source
§ 30(I) The Court shall not, in proceedings instituted afterCommencement

The Court must not grant certain decrees of nullity in specified voidable-marriage cases, and a petitioner for judicial separation is relieved from the duty to cohabit while the decree remains in force.

30. (I) The Court shall not, in proceedings instituted after the commencement of this Act, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the Court- Bnrs to �lief where mWTJageis \'O!clab!e (a) that the petitioner, with knowledge 1hat it was open to the petitioner to have 1he marriage avoided, so conducted oneself in relation to the rcspondcnl as lo lead the respondent reasnnably to believe that rhe petitioner would not seek lo do so; and (h) that ii would be unjust for the respondent to grant the decree. (2) Notwithstanding subsection (l), the Court shall not grant a decree of nullity under section twenty-nine on the grounds specified in paragraphs (c). (d),(e) or(/) of that section unless it is satisfied that proceedings were instituted within three years from !he date of the marriage. (3) Notwithstanding subsection (I) and (2), the Court shall not grant a decree of nullity under section twenty-nfne on the grounds specified in paragraph (f:J or (j) ofthaL s�tion unless it is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged. 3 1 , A decree of nullity of marriage shall not be made on lhe ground that the marriage is voidable under paragraph (o) of section twenty-nfne unless the Court is satisfied that the incapacity to consummate lhc marriage also existed at the time when the heo.ring of the petition commenced and !hat- (a) the i ncapacity is no! curable; lnca�achy to consummate m,miage 314 [No. 20 of2007 Malrlmonial Causes n 1 :,: :;�� ◄1 and4310 nullily proceedings Effccl of decree of nu1H1y in ca.,;e or V(lidable marriage Ground for judicial �cpsrnlion (b) the respondent refuses to submit to such medical examination as the court considers necessary for the purpose of determining whether the incapacity is curable; or (c) the respondent refuses to submil to proper treatment for the purpose of curing the incapacity. 32, Seedons/orry-one 11ndfon�1hree shall apply in relation to proceedings for nullity of marriage as if for any reference in those provisions to divorce there were substituted a reference to nullity of marriage. 33, (I) A decree of nullity granted after the commencement ofthis Act in respect of a voidable marriage shall operate to annul the marriage only as respects anytime all.er the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time, (2) Without prejudice to the operation of subsection (1) in other respects, a decree of nullity under this Act of Q voidable marriage docs not render il\ogitimnte a child of the parties born since, or legitimated during, the marriage, PART VI Juo1cw. SEPARATION 34, ( \) A petition for judicial separation may be presented to the Court by a party to a marriage on the ground that one or more of the facts specified in paragraphs (a) to (e) of subsection (1) of section nine exists and the provisions of section ten shall apply for the purposes ofa petition for judicial separation alleging any such fact, as they apply in relation to a petition for divorce alleging that fact. (2) The Court hearing a petition for judicial separation shall inquire, so far as it reasonably can, into the facts alleged by the petitioner and inlo any facts alleged by tho respondent, but shall no! b1i concerned to consider whether the marriage has broken down irretrievably, (3) Subject to section thirty-nine, if the Court is satisfied on the evidence adduced by the petitioner in support of any fact referred to in paragraphs (o) to (e) of subsection (\) of sec lion nine, the Court shall grant a decree of judicial separation. Matrimonial Causes [No. 20 of2007 315 (4) · Sections twenty-five and twenty-six shall apply for 1he purpose of encouraiing the reconciliation of parties to proceedings for Judicial separation and of enabling the parties 10 a marriage 10 refer to the Coun for its opinion an agreement or amlllgemcnt relevant to aclual or contemplated proceedings for judicial separation, as they apply to proceedings for divorce. 35, A decree of judicial separation relieves the petitioner from the obligation to coho.bit with the other party to the marriage while the decree remains in operation, but, except os provided by this Pan, does not otherwise affect the marriage or lhe status, rights and obligations ofthe parties to the marriage, Effcci of judic:ial scpllJ'lltion
Section 30Verify source

Part

PART VI

§ 36Effect ofjudlclal separation on dc11olu1ion of propertyProvision

During a judicial separation, an intestate spouse’s property devolves as if that spouse had survived the other spouse; unpaid maintenance can make the husband liable for necessaries for the wife; and the wife may still join in exercising joint powers.

36. (1) Where a party to a marriage dies intestate as to any property while a decree ofjudicial separation is in operation that property shall devolve as if that party had survived !he other party to the marriage. r:ir�or judicial separat!on on devolution ol p,opcnr (2) Where upon, or in consequence of, the making ofa decree ofjudiciul separation a husband is ordered 10 pay maintenance to his wife, and the maintenance is not duly paid, the husband is liable for necessaries supplied for the wife's use. 3 7, Nothing in this Part prevents a wife, during separation under a decree of judicial separation fromjoinlng in the exercise of any power given 10 herself and her husband jointly, F.xerchc of Joint powcfl not llffected
Section 36Verify source
§ 38Decree of judicial separation not to be bar lo subsequentProvision

A judicial separation decree does not stop either spouse from seeking dissolution of the marriage, and the court may use the separation decree as proof of the same facts in a dissolution case, but it must still consider the petitioner’s evidence.

38. (I) A decree of judicial separation does not prevent !he institution by eilherparty to the marriage of proccc,dings for a decree of dissolution of marriage, (2) The Court may, in any proceedings for a decree of dissolution of marriage on the same, or substantially !he same, facts as those on which a decree of judicial separation hns been made, treat the decree of judicial separation as sufficient proof of the facts constituting the ground on which that decree was made, (3) Notwithstanding subsection (2), the Court shall not grant a decree of dis solution of11U1JTiage without considering evidence given by the petitioner in suppon of the petition. 39, Where, after a decree of judicial separation has been made, the parties have voluntarily resumed cohabitation, either party may apply for an order discharging the decree.
Section 38Verify source
§ 40Application oflhis Part lo decrees made before c;;ommem:emenlCommencement

This Act applies to decrees of judicial separation made before commencement as if they had been made after commencement.

40. The provisions of this Act apply to and in relation to a decree of judicial separation made before lhe commencement of this Act as if such a decree was made after the commencemcmt of this Act. DCCJ'CC ol judicial �panuion 011110 b:u­ subi,;,qucn1 prneccd!ng• fo, dinnlulioQ of maniai!C Disch�e of dcCJNon rcsumpdon of aiha.bitatioQ App1lca1lon ofthls Pan to decice, made befurc """""""' ofAcl 316 (No. 20 012007 Matrimonial Cau.ves PART VII DEC REI::: NISI AND Dt:CRli.E AasoLUrn 01:("recnlslin fint Instance Decree !.bsolutc where children under 1wenty-onc )'Cars, CIC, 4 1 , A deem: or dissolution of marriage or nullity of marriage of a voidable marriage under th is Act shall, in the first instance, be a decree nis/,
Section 40Verify source

Part

PART VII

§ 42Decree ab.�olutc where children under twenty one years, etcProvision

A decree nisi for dissolution of marriage or nullity of a voidable marriage does not become absolute unless the Court is satisfied about the children’s welfare arrangements or special circumstances apply.

42. (\) A decree11!.siofdissolutionofamnniageorofnullity ofa voidable marriage shall not become absolute unless the Court, by order, has declared 1hat it is satisficd- (aJ that there are no children orthe family in relation to whom this section applies; or {b) thal tl1e only childn:n of 1he family in relation lo whom this secth,m applies arc lhc children specified in the order and 1hat- {i) proper arrangements in all the circumstll.llces have been made for the welfare and, where appropriate, education or advancement of those chlldren;or (ii) there are special circumstances by reason of which lhe decree nisi should become absolute notwithstanding that the Cour1 is not sati.died that such arrangements have been made, (2) In this section, "children of the family in relation to whom this seclion applies" means- (aJ the children of the family who are ui:,der the age of twenl)-•­ one years at the date of the decree nisi; and {b) any children of the family in relation to whom the Court has, in pursuance of subsection (3), ordered thal !his section shall apply. (3) The Court may, in a pnrticulnr case, ! f it is of opinion that there are special circumstances which justify its so doing, order that this section shall apply in relation to a child oflhe marriage who has attained lhc age of twenty-one years 111 the date of the decree nisi.
Section 42Verify source
§ 43When decree becomes absoluteCommencement

A decree nisi becomes absolute after six weeks, or later if there is an appeal. Either spouse may apply. The Registrar of the High Court must file a memorandum and issue a certificate after the decree becomes absolute, unless a party has died.

43. (I) Subject to this si::etion, a decree ni.si made on or after the commencement or this Act becomes absolute by force or this section al the expiration ora period of six weeks from the making of the decree, Whcndccra: becom,:1, absolute ' ' I ' Matrimonial Causes jNo, 20 012007 317 (2) An application for a decree nisi tn be made abso]ule may be made by either party to the marriage. (3) Where an appeal is instituted before a decree nisi has become absolute the decree m's/, unless reversed or rescinded, becomes absolute by force of this seclion4 (a) at the expiration of a period of twenty-eight days from the day on which the appeal is determined or disconti11ucd; or {b) on the day on which the decree would have become absolute under subsection (I) if no appeal had been instituted, whichever is the later. (4) A decree nisi shall not become absolute by force of this section where either of the parties to 1he marriage has died. In this section "appeal", in relation to a decree nisi. (5) means- (a) an appeal, application for leave to appeal against or an intervention or an application for leave to intervene re In ting to- (i) the decree nili; or (ii) an order under sectionforly-lwo in relation to the proceedings in which the decree nlsi was made; or (b) an application undersectionsforty-.flx.jorry-seven, forty­ eight or forty-nine for rescission of the decree or an appeal or application for leave 10 appeal arising out of such an application. (6) For the purposes of this section, where an application for leave to appeal or to intervene, or for a rehearing, is granted, the application 5hall be deemed not to have been determined or discontinued so long as- {a) the \eave granted remains capable of being exercised; or {b) an appeal, intervention or rehearing iMtitutcd in pursuance of the leave is pending. 44, (I) Where a decree nisi becomes absolute, a memorandum ofthe fact and oflhe date on which the decree became absolute shall be prepared and tiled by the Registrar of the High Court. (2) Where n decree nisi has become absolute, lhCI Registrar oft he High Co\1rt ,hall, on payment of tho appropriate fee, issue to Certificate as " "'� nbsnlute 318 (No, 20 of2007 Matrimonial Causes any person applying for the same a certificate that the decree hns become absolute. (3) A certificate given under subsection (2) is in all courts and for nil purposes, evidence of the matters specified in the cenificnte.
Section 43Verify source
§ 45Proceedings after decree nl/1IProvision

The Court can rescind a divorce/dissolution decree, require more inquiry, or otherwise deal with the case in specified post-decree situations.

45. (I) Subject 10 section eighty where a decree of dissolution of marriage has been made but has not become absolute, any person who is not a party to lhe proceedings may show cause why the decree should not be made absolute on account of material facts not having been brought before the Court, and in such a case lhe Courtmay- (a) rescind the decree; {b) r!!quirc further inquiry; or (c) otherwise deal with the case as it 1hinks fit. (2) Where a decree of divorce has been granted and no applica1ion for it to be made absolute has been made by the party to whom ii was granted, the party against whom it wa� granted may apply to the Court, at any time after the expiration of three monlhs frOm the earliest date on which that party could have made such an application, for the decree nisi to be made absolute. (3) On an application under subsection (2), the Court may exercise any of the powers mentioned in paragraphs (a) to (c) of subsection (I). 46, Notwithslanding anything contained in this Part, where a decree nisf has been m11de in proceedings for a decree of dissolution of marriage, the Court may, at any time before the decree becomes absolute, upon the application o f either of the parties to the marriage, rescind 1he decree if the Court is satisfied that the parties h:ive become reconciled. 47, Where a decree nlsl has been made but not become absolute the Court may, on the application of any person who is not a parry to the proceedings, if it is satisfied that there has been a miscarriage of justice by reason offi-aud, perjury, suppression nf evidence or any other circumstances, rescind the· decree and, if ii thinks fit, order that the proceedings be reheard.
Section 45Verify source
§ 48Rescission of decn:e nlsi un ground of miscarriage of justiceInterpretation

The Court may rescind certain decrees and make related orders in matrimonial proceedings, including maintenance pending suit and directions on referred agreements; after a decree of dissolution becomes absolute, a party may marry again.

48. Where a decree nisi has been made, but ha� not became absolute, the Court may, on the application of a pall)' to 1he proceedings or on the iniervention oft he Attorney•General, ifil is Proceeding� after decree nisi Reschsion of decree nisl where panics ru.oncilcd, '"· Rcsc!uion of decree nlsi on ground or fr�ud, etc. Rc,cls,lonof dccr=nbi on ground of mi�mri�c of justice Matrimonial Causes [No. 20 of 2007 319 satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or of any other circumstances, rescind the decree and, if it thinks fit, order the rehearing of the proceedings. 49, Where a decree has been made but not become absolute in any case where the petitioner in support of the petitioner's petition relied only on the fact of two years'separation coupled with the respondent's consent to a decree being granted and no other fact, the Court may, on an application made by the respondent at anytime before the decree is made absolute, rescind the decree if ii is satisfied that the petitioner misled the respondent, whether inlentionally or unintentionally, about any matter which the respondent took into account in deciding to consent. R.esciss!on ol"dccrce v,·hcrc consent in relation to two yeW"s' separatlcin obtained by --­ tlon SO. Where a decree of dissolution of marriage under this Act has become absolute, a party 10 lhe marriage may marry again as if the marriage had been dissolved by death. �mnninge PART Vlfl FINANCIAL RELIEF FOR PARTIES TO MARRIAGE AND Cun.DREN OF FAMlLY 51, I n this Part "marriage" includes a purported marriage that Definition of is void o r has been declared to be such. marriage 52, (I) On a petition for divorce, nullity or marriage or judicial Mainten3nce separation, the Court may make an order for maintenance pending pending �uit suit. (2) An order made under subsection (I) may require either party to the marriage t o make 10 the other such periodical payments for that party's maintenance and for such periods, beginning not earlier than the date of the presentation oflhc petition Md ending on the date of the determination of 1he suit, as the Court thinks reasonable. SJ. (I) The parties to a marriage, or either of them, may, in accordance with rules or court, on application made before or after the presentation of a petition for divorce, refer lo the Court any agreement or arrangement made or proposed to be made between them, which relateS to, alises out of, or is connected with, the proctiedings for divorce· which are contemplated or, as the case may be, have begun. (2) Where an agreement is referred to 1he Court under subsection (1 ), the Court may express an opinion, if it thinks it O:msidc:mtion hy C(lurt of certain agreements ammgemenls 320 [No. 20 of2007 Matrimonial Causes General powe:s o( Court desirable to do so, on the reasonablt:ness of the agreement or arrangement and give such directions, if any, in the mii.tter as it thinks fit.
Section 48Verify source

Part

PART Vlfl

§ 54(I) The Court, in exercising its powers under this P11rt,Provision

The Court may make maintenance and child-related payment orders when granting or after granting divorce, nullity, or judicial separation orders.

54. (I) The Court, in exercising its powers under this P11rt, upon granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter, whether, in the case of a decree of divorce or of nullity of marriage, before or after the decn:e is made absolute, may do any or all of the following : (a) order that either party to the marriage shall make to the other such periodical payments, for such period, as may be specified in the order; (b) order that either party to the marriage shall secure to the other to the satisfaction of the Court such period ical payments, for such period as may be specified in the order; {c) order that either party lo fhe marriage shall pay to the other, such lump sum or sums ns may be specified in the order; (d) order that a party to the marriage shall make to such person as the Court may specify in the• order for the benefit ofa child of the family, orto such a child, such periodical payments, for such period, as may be specified in the order; (e) order that a party to the mardage shall secure to such person as the Court may specify in the order for the benefit ofa child of the family, or to such a child, such periodical payments, for such period, as may be specified in the order; (/) order that a party to the marriage shall pay to such person as the Court may specify in the order for the benefit of a child ofthe family, orto such a child, such lump sum as may be specified in the order, (2) The power of the Court 10 make orders under paragraphs {d), (c) and (/) of subsection (1) shall not be exercised for the benefit of a child who has attained the age of twenty-one yearS unless the Court is of opinion that there are special circumstances that justify the making of such an order for the benefit oflhat child. ! ' , Matrimonial Causes [No. 20 of2007 321 (3) The Court may, subject to the restriction referred in subsection (2), make any one or more of the orders referred to in paragraphs (d), (e) and (/) of subsection (I}-- (a) in any proceedings for divorce, nullity of marriage orjudicial separation, before granting a decree; and {b) where any such proceedings are dismissed after the beginning of the trial, either immediately or within such rea.�onable pct!od after the dismissal. (4) Without prejudice to the genernlity of paragraph ( c) or (t) ofsubsection (I}- (aj an order under this section that a parry to a.marriage shall pay a lump sum to the other party may be made for the purpose of enabling that other party to meet MY liabilities or expenses reasonably incurred by the party in maintaining themselfor any child of the family before making an application for an order under this section in the applicant's favour; (b) an order under this section for the payment of a lump sum 10 or for the benefitofa child orthe family may be made for the purpose of enabling any liabilities OJ expenses reasonably incum:d by or for the benefit of that child before the making of an application for an order under this section in the applicant's favour to be met; and {c:) an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as the Court may specify in the order and may require the payment of the instalments to be secured to the satisfaction of the Court. (5) The power of the Court under suhsectirm (I} or paragraph (a) of subsection (4) to make an order in favour ofa child ofthe family shall be exercised from time to time and where the Court makes an order in a favour of a child under this section it may, from time to time, subject to the restrictions mentioned in subsection (2), make a further order in the child's favour of any of the kinds referred to in raragraphs (d), {e) and (f) of subsettion (1). · (6) Where an order is made under paragraph (a).(b) or (c) of subsection (I) on or after the granting of a decree of divorce or nullity of marriage, neither the order nor any settlement made in 322 [No. 20 of2007 Matrimonial Causes Propeny udjus1men1 order11 in ronncctlon wilhdivo�c pmcccdlngs, "'· pursuance or the order shall take effect unless the decree has been made absolute. S5. (I) The Court may, upon granting a decree of divorce, a decree of nullity of marriage or a decree ofjudicial separation or at any time thereafter, whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute, make any one or more of the following orders: (a) an order that a party to the marriage shall transfer to !he other party, to any child of the family or to such person as the Court may specify in the order for the benefit of such a child, such property as may be specified in the oi-der, being propeny to which the first.mentioned party is entitled, either in possession or reversion; {b) an order that settlement of such property as may be specified, being property lo which a party to a marriage is eniitled, be made to the salisfaction of the Coutt for the benefit ofthe other party to the marriage and ofthe children ofthc family or either or any of them; (c) an order varying for the benefil of tho patties to the marriage and of the children of the family or eilherorany of them any ante-nuptial seulement, including a settlement mnde by will orcodicil,made by the parties to the marriage; (d) an order extinguishing or reducing the interest of either of the parties 10 lhe marriage under the settlement; subject, in the case of an order made under paragraph (a) to the restrictions imposed by this Act on the making of orders for the I rans fer of property in favour of children who have attained the age of twenty-one, (2) The Court may make an order under paragraph (c) of subsection (I) notwithstanding that there are no children of the family. (3) Where an order is made under section sixty-one on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order sholl take effect unless the decree has been made absolute. Powers of coun in maintenance procccding:s
Section 54Verify source
§ 56(I) Subject to the provisions ofthis section, the Court may,Provision

The Court may make a maintenance order for a spouse or child in a marriage-related case, and must consider listed financial and family factors.

56. (I) Subject to the provisions ofthis section, the Court may, in any matter or cause in which applicacion is made for the maintenance ofa party tn a marriage, or of children of the family, other than proceedings for an order for maintena,1ce pending the Matrimonial Causes !No. 20 of2007 323 disposal of proceedings, make such an order on such application as it thinks proper having regard to- (a) 1he income, earning capacity and other financial resources which each oflhe parties 10 the millTiage has or is likely to have in the foreseeabh1 future; (b) the financial needs, obligations and responsibilities which each of the parties to 1he marriage has or is likely to have in the foreseeable future; (c) the standlltd of living enjoyed by the family before the breakdown oflhe marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (/) the contributions made by each of the parties 10 the welfare of the family, including any contribution made by looking after the home or caring for the family; (g) in the ca.�e o(procccdine,s for divorce or nullity ofm11ttiage, the value to eitherofthe parties to the mnniage of any benefit, such as a pension, which as a result of the dissolution or aMulment of the marriage, that party will lose the chance of acquiring. (2) In making an order under subsection (I), the Court shall seek 10 place 1he parties, so for as it is practicable and just to do so, having regard to their conduct, in the financial position in which they would have beon if the marriage had not broken down and each had properly discharged their financial obligations and respcinsibilities towards the other, (3) Subject to subsection (S), the Court shall in deciding whether to exercise its powers under paragraphs (d), (e) or (/) of subsection (1) ofsection/!fo/{our, subsections (2) or(4) ofsec1ion fifty-four or sectionfifty-five in relation lo a child of the family and ifso in what manner, have regard 10 all the circumstances of the case ineluding- (a) the financial needs of the child; (b) the income, earning capacity, if any, propeny Md other financial resources of the child; 324 [No. 20 of2007 Matrimonial Causes (c) any physical or mental disability of the child; (d) the standard of living enjoyed by the family before the breakdown of the marriage; and (e) the manner in which the chlld was heing and in which the parties to the marriage expected the child to he educated and trained, (4) In exercising its powers under this section the Cour1 shall seek to place the child, so for as it is practicable 11ndjuJ>I to dn so, having regard 10 Che considerations mentioned in relation 10 the panics to !he marriage in subsection (2), in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged their financial obligations and responsibilities towards the child. (5) The Court shall in deciding whether to e:-.crcise its powers under paragraphs (d), (c) or (/J ofsubs1:c\ion (1) of scctiun/ifty­ /our and subsections (2) or (4) of section fifty-four against a party to a marriage in favour of a child ofthe family who is no\ the child of1hat party and, ifso, in what manner, have regard, among the circumstances of lhe case- (aJ to whclhcr 1hat party had assumed any responsibility for lhe child's maintenance and, iho, 10 1he extent to which, and the basis upon which, that party assumed such. responsibility and to the length of time for which that party discharged such responsibility; (b) to whether in assuming and discharging such respons ibility that party did so knowing that the child was not his or her own; and (c) tn the ability of any other person 10 maintain the child.
Section 56Verify source
§ 57Commencement of proceedings for ancillary relief, etcCommencement

After a divorce, nullity, or judicial-separation petition is filed, certain related proceedings may start, and rules of court may require how applications are filed and when leave of court is needed.

57. ( I ) Subject to subsection (2) and to the rules ofcour1, where a petition for divorce, nullity of marriage or judicial sepnr11tion hns been presented, proceedings for maintenance pending suit under section/!,fry-two, for a financial provision order under section/ifl)'­ /our or for a proper1y adjustment order under section fifty-five may be begun, at any time after the presentation oft he petition. (2) Rules or cour1 may provide that- (a) the applications for any relief under subseclion (I) shall be made in the petition or answi:r; and Commence­ m�m or proeccdi�l\5 fm nn�lllru-y reuer. �e. Matrimonial Ca11.�es INo. 20 of2007 325 (b) that applications for any relief which are not made by petition or nnswer, or which nre not mo.de unlil nfter the expiration of such period following !he presentation of the petition or filing of the answer as may be prescribed, shall be made only with the leave of the Court. 58, (I) Either pllrty to n marriage may apply to the Court for an order under this section on the ground that the respondenl­ (a) beinc lhe husband, has wilfully neglected- (i) to provide reasonable maintenance for the applicant; or (ii) to provide or to make a proper contribution towards, reasonable maintenance for any child of the family to whom this section applies; ur {b) being the wife, has wilfully neglected lo provide, or to make a proper contribution towards, reasonable maintenancc- Neglcciby pany 10 mnrrioge to maintain other party archild of family (i) for the applicant in a case where, by reason of the impairment of the applicant's earning capacity through age, illness or disability of ,nind or body, having regard to any resources of the applicant and the respondent respectively which ore, or should properly be made, avnilahle for the purpose, it is rcasonahlo in all the circumstances to cxj,ecl the respondent so lo provide or contribute; " (ii) for any child of1hc family to whom this section nppli�.,, (2) The Court shall not entertain an application underthis section unless it would have jurisdiction to entertain proceeding, by the applicant for judicial separation. (3) This section applies to any child ufthe family for whose maintenance ii is reasunabh: in all the circumstances to expect 1he respondent to make a proper contribution. (4) Where the child of the family to whom 1he application under this section relates is nol the child of the respondent, •.he Court, in deciding- (o) whether 1he respondent has been guilty of wilful ncglccl to provide, or to make a proper contrihution towards, reasonable maintenance for the child; and 326 (No. 20 of2007 Matrimonial Causes (b) what order, if any, to make under this section in favour of the child; shall have regard to the matters referred to in subsection (5) of scc1ion fifty•six. (5) Where on an application under this section it appears to the Court that the applicant or any child of the family to whom the application relates is i n immediate need offinancial assistance, but it is not yet possible to determine what order, if any, should be made on the application, the Court may make an interim order for maintenance requiring the respondent to make to the applicant until the determination ofthe application such periodical payments as the Court thinks reasonable. (6) Where on application under this section the -applicant satisfies the Court of any ground specified in subsection (1), the Court may make one or more of the following orders: (a) an order directing the respondent to make such periodical payments to the applicant for such period as the Court may specify in the order; (b) an order direct_ing the respondent lo secure to the applicant such periodical payments for such period as the Court may specify in the order; M an order directi ng the respondent to pay to the applicant such lump sum as the Court may specify in 1he order; (d) an order that the respondent shall make to such person as the Court may specify in the order for the benefit of a child to whom the application relates, or to that child, such periodical payments, for such period, as the Court may specify in the order; (e) an order that the respondent shall secure to such person as the Court may specify in the order for the benefit of that child, orto that child, to the satisfaction of the Court, such periodical payments, for such period, as the Court may specify in the order; u?order that the respondent shall pay 10 such person as the Court may specify In the order for the benefit of a child, or to that child, such lump sum ,ls the Coun may specify in the order; subject, in the case of an order made under paragraph {d), (e) or (/) to the restrictions imposed by this Act on the making offinancial provision orders in favour of children who have attained the age of tw1mty-um:, , , Matrimonial Causes [No. 20 of2007 327 Duration or periodic payment nrdcrs for pany to marriqe (7) Without prejudice to paragraphs (c) or (/) of subsection (6), an order under this section for the payment of a lump sum- (a) may b� made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the applicant or any child of the family to whom the application relates before the making of the application is met; and (b) may provide for the payment of that sum by instalments of such amount as may·-be specified in the order and may require the paymentofthe instalments to be secured to the satisfaction of the Court. 59, (I) The Court in an order for periodical payments or secured periodical payments order made in favour of II party to a marriage shall specify the term of the order as the Court thinks fit, subject to the following limits: {a) I n the case of a periodical payments order, the term shall begin not earlier than the date of the making of an application for the order, and shall be so defined as not to extend beyond the death of either of the panics to the marriage or, where the order is made on or after the grant of a decree of divorce or nullity of marriage, the remarriage of the party in whose favour the order is made; and {b) In the case of a secured periodical payments order, the term shall begin not earlier than the date of the making of an application for the order, and shall be so defined as not to ex.tend beyond the death or, where the order is made on or after the grant of such a decree, the remarriage of the party in whose favour the order is made. (2) Where a periodical payments or secured periodical payments order in favour of a party to a marriage is made otherwise than on or after the grant of a decree of divorce or nullity of marriage, and the marriage in question is sUbsequcntly dissolved or annulled but the order continues in force, the order shall notwithstanding anything in it, cease to have effect on the remarriage of that party, except in relation to any· arrears due under it on the date offhe remarriage. (3) If after 1he grant of a decree dissolving or annulling a marriage either party to lhat marriage remarries, that party shall not be entitled to apply, by reference to the grant ofthat decree, for a financial provision order in the party's favour, or for a property adjustment order, against the other party to that marriage, 328 [No. 20 ol 2007 Matrimonial Causes Duration of pcr[odlcal paymen1 orders for children or family Preparation of lnstrumenl forsceurlng paymen1� by ord�r of Court Varia1ion, etc. of order, forfinan�illl relief
Section 57Verify source
§ 60Duration of orders for periodic paymcnls in rclntion toProvision

The Court’s orders for child maintenance/property support are limited by the child’s age, with special exceptions for 21-to-under-25s in education or training, and the Court can later vary, suspend, discharge, or revive certain orders.

60. (I) Subject to subsection (3), no financial provision order and no order for a transfer of property under paragraph (a) of subsection (I) of section fifty-five shall be made in favour of a child who has attained 1he age ofrwenty-one. (2) Subject to subsection (3), the term to be specified in a periodical payments or secured periodical payments order in favour ofa child may begin with the date of the making of an application for the order in question or any later date but shall not extend beyond the date of the child's twenty-fir.ft birthday. (3) Subsections (1) and (2) shall nol apply in the case of a chlld who has attained the age of twenty-one but is below the age of twenty-five if it appears to !he Court lhat- (a) the child is, or will be, or if an order wi:re made withou1 comply ing with those provisions would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not the child is also, or will also be, in gainfulemploymenl; " (b) there arc special circumstances which justify the making of an order without �umplying with either or both of those provisions. (4) Any periodical payments order in favour of a child shall, notwithslanding anything in the order, cease to have effect on the death ofthe person liable to make the payments under the order, excepl in relation to any arrenrs due under the order on the dale of the death. 61, (1) Where the Court decides lo make an order requiring any paymen1s to be secured or for a sct1lement of property- (a) it may direct !hat the matler be referred to a legal practitioner to draw up the instrument to be executed by all necessary parties; and (b) where the order is to be made on proceedings for divorce, nullity ofmaniage or judicial separation It may, ifit thinks fit, defer 1he grant of the decree in question until the instrument has been duly executed, (2) The Court may make such order as it thhksjust as to the paymenl of the costs and expenses of and incidental to the preparation oflhe instrumenl and its execution. 62, (I) Subject to the provisions ofthls section, where the Court has made an order to which lhis section applies, the Court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision s o suspended. ' ' Matrimonial Causes !No. 20 of 2007 329 (2) This section applies to the following orders: (a) any order for maintenance pending suit and any interim order for maintenance; (b) any periodical payments order; (c) any secured periodical payments order; (d) any order made under paragraph (c) of subsection (4) of sectionf,ftyfour or paragraph (b} of subsection (7) of section fifty-eight for payment of a lump sum by instalments; (e) any order for a settlement of property under paragraph (b) ofsubsection(l) ofsectionf!fiy:five or for a variation of settlement under paragraph (c) or {d) of subsection (I) of sectionflfry:five, being an order made on or after the grant ofa decree of judicial separation. (3) The powers exercisable by the Court under this section in relation to an order shall be exercisable also in relation to any instrument executed in pursuance of the order, (4) The Court shall not exercise the powers conferred by this section in relation to an order for a settlement under paragraph (h) of subsection ( I ) of sectionf!fty-five or for a variation of settlement under paragraph (c) or (d) of subsection (I) of seclionflfty-/ive, except on an application made in proceedings- (a) for the recision of the decree of judicial separation by reference to which the order was made; {b) for the dissolution of the marriage in question. (S) No property adj ustment order shall be made on an application for the variation of a periodical payments or secured periodical payments order made, whether in favour of a party to a marriage or in favour ofa child of the family, under seclionf,fty­ jive. and no order of the payment ofa lump sum shall be made on an application for the variation of a periodical payments or secured periodical payments order in favour of a party to a marriage, whether made under section/,fly-jive, or under sectionfifty•eight. (6) Where the person liable lo make payments under a secured periodical payments order has died, an application under this section relating to that order may be made by the person entitled to payments under the order or by the personal reprtlsentatives of the deceased 330 (No. 20 of2007 Matrimonial Causes person, but no such application shall, except with the pennission of the Court, be made after the end of the period of six months from the date on which representation in regard to the estate of that person is first taken out. (7) In exercising the powers conferred this section the Court by shall have regard to all the circumstances of the case, including any change in any of the matters to which the Court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting in the person's dealh. (8) Tbe personal representatives of a deceased person against whom a secured periodical payments order was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in subsection (6) on the ground that they ought to have taken 'into account the possibility that the Cour1 might permit an application under this section to after that period by the person so entitled to payments under the order: but this section shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order In pursuance of this section. be made (9) In considering for the purposes of subsection (6) the question when representation was first taken out, a grant limited to settled land or to trust property shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.
Section 60Verify source
§ 63Payment ofccrtnin arrears to be unenforceable without leaveProvision

A person cannot enforce certain maintenance-related arrears through the Court without leave if the arrears are more than 12 months old; the Court may refuse leave, grant it with conditions, or remit the arrears.

63. (I) A person shall riot be entitled to enforce through the Court the payment of any arrears due under an order for maintenance pending suit, an interim order for maintenance or any financial provision order without the leave of the Cour1 if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun, (2) The Court hearing an application for the grant of leave under this section may refuse leave, or may grant leave subject to such restrictions and conditions, including conditions as to the allowing ohime for payment by instalments, a.s the Court thinks proper, or may remit the payment of the arrears or of any part thereof. (3) An application for the grant of leave under this section shall be made in such manner as may be prescribed by rules of court. Payment or certain IUTCllll to be -­without leave of Court Matrimonial Causes (No, 20 of2007 331
Section 63Verify source
§ 64Orders for repayment in certain cases of sums paid underCommencement

The Court may order repayment of an excess amount and may alter maintenance agreements in certain cases; some clauses restricting court applications are void, and certain applications must be made within six months unless the Court permits later filing.

64. (1) Where on an application made under this section I n relation t o an order to which this seclion applies it appears to the Court that by reason of- (a) a change in the circumstances of the person entitled to, or liable 10 mnke, payments under the order sinco the order was made; or Orders for rcpayrncnl lnurta!n cases of sums p!Lld """" certain orden {b) the changed circumstances resulting from the death oft he person so liable; the amount received by the person entitled to payments under the order in respect of a period after those circumstances changed or after the death of tho person liable to make payments under the order, as the case may be, exceeds the amount which the person so liable or the person's personal representatives should have been required 10 pay, the Court may order the respondent to the application to pay to the applicant such sum, not exceeding the amount of the excess, as the Court thinks just. (2) This section applies 10 the following orders: {a) any order for maintenance pending suit and any interim order for maintenance; {b) any periodical payments order; and (c) any secured periodical payments order. (3) An application under this section may be made by the person liable lo make payments under an order to which this section applies or the person's personal representatives and may be made against the person en1illed to payments under the order or the person's personal representatives. (4) Any application under this section may be made for­ (a) the variation or discharge of the ordcrto which this section applies; or {b) leave to enforce, or the enforcement of, the payment of arrears under that order. (S) An order under this section for the paymenl of any sum may provide for the payment of that sum by instalments of such amount as may be specified In the order. 6S, (\) If a maintenance agreement includes a provision Maintenance: purporting to restrict any righ1 to apply lo the Court for an order agreements containing financial anangements, then- 332 (No. 20 of2007 Matrimonial Causes (a) that provision shall be void; but (b) any other financial arrangements contained i n the agreement shall not thereby be rendered void or unenforceable and shall, unless they are void or unenforceable for any other reason and subject to sections sixty-six and sixty-seven, be binding on the parties to the agreem�nt. (2) In this section and in section sixty-six " mainlenance agreement " means any agreement in writing made whether before or after the commencement ofthis Act, between the panics to a marriage, being- (aJ an agreement containing financial arrangements, whether made during the continuance or after the dissolution or annulment ofthe marriage; or (b) a separation agreement which contains no financial arrangements in a case where no other agreement in writing between the same parties contains such arrangements; " financial arrangements " means provisions governing the rights and liabilities towards one another when living separately of the parties to a marriage including II mrirriage which has been dissolved or annulled in respect of the making or securing of payments or the disposition or use of any property, including such rights and liabilities with respect 10 the maintenance or education of any child, whether or not a child of the family. Altcra1lon of �ement.s by courl during lifo of pnrties 66, (I) Where a maintenance agreement is for the time being subsisting and each of the parties to the agreement is for the time being either domiciled or resident in Zambia then subject to subsection (3), either pany may apply to the Cc,urt for an order under this section. (2) (a) If the Court is satisfied either- that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made or, as the case may be, financial arrangements were omitted from it including a change foreseen by the parties when m11king the agreement, the agreement shall be altered so as to make different, or as the case may be, so 11S to contain, financial arrangements; or I ' Matrimonial Causes [No. 20 of 2007 333 (b} that the agreement docs not contain proper financial arrangements with respect 10 any child of the family; then subject to subsections (3) and (4), the Court may by order make such alterations in the agreement- (i) by varying or revoking any financial arrangements contained in it; or (ii) b y inserting in it financial arrangements for the benefit of one of the parties to the agreement or ofa child oflhe family; as may appear to the Court to be just having regard to all the circumstances, Including, if relevant, the maner memioned in subsection (3) ofseclionf!fly-six,·.and the agreement shall have effect thereafter as if any alteration made by the order had been made by agreement between the parties and for valuable consideration. (3) Where the Court decides to alter, by order under this section, an agreement by inserting provision for the making or securing by one of the parties to the agreemenl of periodical payments for the maintenance ofa child of the ramily or by increasing the rate of the periodical payments which the agreement provides shall be made or secured b y one of rhe parties for the maintenance of such a child, then, in deciding the term for which under the agreement as altered by the order the payments, or as the case may be, the additional payments attributable to the increase arc 10 be made or secured for the benefit of the child, tho Court shall apply the provisions of subsections (2) and (3) of section sixry as lo age limits as if the order in question were a periodical payments or secured periodical payments order in favour oft he child. 67, (I) Where a maintenance agreement within the meaning ofsectionsixty1ivr: provldi:s for thi: continuation of payments under the agreement after the death of one of !he parties and Iha! party dies domiciled in Zambia, the survh·ing party or the personal representative� of the deceased party may, subject to subsections (2) and (3) apl]ly to the Court for an order under section sixty.five. (2) An application under this section shall not, excepl with the permission of the Cowt, be made after the end of the period of six months from the d111e on which represental ion in regard to the estate of the dece11Sed is first taken out. (3) lfa maintenance agreement is altered by the Court on an application made under subsection (I); the like consequences shall ensue as if the alteration had been made immediately before the death hy agreement between the parties and for valuable consideration. All�n&l!on of agn:cmen11 by COUrl alkr d�ath of one p�)' 334 [No. 20 of 2007 Matrimonial Causes AvofdMCCIJf 1Jansnctio111 intended to picvc:nt or edooo financial relier (4) The provisions of this section shall not render the personal representatives of the deceased liable for having distributed any part of the estate o f t he deceased after !he expiration of the period of six months referred to in subsection (2) on the ground that they ought to have taken into accoun t the possibility that the Court might pennlt an applicndon under this section lo be made by the surviving party ofter that period, but this subsection shall not prejudice any power to recover any part of the estate so distributed arising from the making of an order in pursuance of this section. (5) Subsection (9) of section sixly-two shall apply for the purposes of subsection (2) as i t applios for the purposes of subsection (6) of section sixly-lwo.
Section 64Verify source

Part

part of the estate o f t he deceased after !he expiration of the period

§ 68Avoidance of transactions Intended to prevent or reduceCommencement

If someone tries to move or deal with property to defeat a claim for financial relief, the court may restrain it or set the disposition aside.

68. ( I) For the purposes ofthissec1ion " financial relief" means relief under any of the provisions of sectionsf,jry-two,/ifty-/our. f,jly-frve,fif/y-tight and six1y-two except subsection (5) and section sixty-six, and any reference in 1his section 10 defeating a person's claim for financial reliefis a reference to prevenling financial relief from being granted 10 Iha! person, or 10 that person for the benefh ofa child of the family, or reducing the amount of any financial roliof which might be so granted, or frustrating or impending the enforcement of any order which might be or has been made at this instance under any oflhose provision5, (2) Where proceedings for financial relief are brought by one person against another, the Court may, on the application of the first mentioned person- (aJ ifit is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about 10 make any disposition rr to transfer out of tho jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim; (b) ifit is salisfied !hat the other party has, with that intention, made a reviewab!e disposition and that iflhe disposition were set aside financial relief or different financial relief would he granted to the applirnnt, make an order setting aside the disposition; {c) ifit is satisfied , in a case where an order has been obtained under any of the provisions mentioned in subsection (I) by the applicant against the other party, that the other party has with that intention, made a review11ble disposition, make an order setlinG aside the disposition; Matrimonial Causes [No. 20 of 2007 335 and an application for the purposes of paragraph {b) shall be made in the proceedings fort he financial relief in question. (3) Where the Court makes an order under paragraphs {b) or {c) of subsection (2) setting aside a disposition ii shall give such consequential direction9 os I t thinks tit for giving effect lo the order including directions requiring !he making of any payments or the disposal of any property. (4) Any disposition msde by the other party to the proceedings for financial relief in question whether before or after the commencement of those proceedings is a reviewablc disposition for the purposes of paragraphs {b) and (c) of subsection (2) unless it was made for valuable consld.eration other than marriage to a person who, at the time of the disposition, acted in relation to it in good faith and without nolice of any intention on the pan of the other party to defeat the applicant's claim for financial relief. (S} Where an application is made under this section with respect to a disposition which took place less th.an three years before the date of the application or with respec1 to a disposition or 01her dealing with property which is abouttn take place and the Coun is satisfied- (a) in a case falling within paragraphs (a) or {b) of subsection (2), that the disposi11nn or other dealing would, apart from this section, have the consequence; or (b) in a case-falling within paragraph (c) subs"tion (2), that the disposition bas hnd the consequence; of defenting the applicants claim for financial relief, it shall be presumed, unless the contrary is shown, that the person who disposed ofor is about to dispose of or deal with the property did so or, as the case may be, is aboul to do so, with the intention of defe:itingthe applicant's claim for financial relief. (6) In this section .. disposition" docs not include any provh;ion contained in a will or codicil but, with thatex.cepdon, includes any conveyance, assurance or gift of propi:rty of any description, whether made by an instrument or otherwise. 69 , (I} Wherc- {(1) a periodical payments or secured periodical payments order in favour ofa party to a marriage, in this section referred to as " a payments order ", has ceased to have effect by reason oflhe remarriage ofthat pany; ond (b) the person liable to make payments under the order or the person's personal representatives made payments in accordance with it in respect of a period ofter the date of the remarriage in the mistaken belief that the order wns still subsls1i11�: Ordcl'll ror repayment inecna.ln casct or IIWTIS pnld ""' cCJSallon or order on retnarri5!1CO( pu1y 336 [No. 20 of2007 Matrimonial Causes the person so liable or the person's personal representatives shall not be entitled to bring proceedings in respect of a cnuse of action arising out of the circumstances mentioned in paragraphs (a) and (h} against the person entitled to payments under the order or the person's personal representatives, but may instead make an application against that person or the person's personal represen1n1ives under this section. (2) On an application under this section the Court may order the respondent to pay to the applicant a sum equal In the nmount of the payments made in respect of the period mentioned in paragraph (b) of subsection (I) or, iric appears to the Court that it would be unjust 10 make that order, it may either order the respondent co pay to the applicant such lesser sum as it thinks fit or dismiss the application. (3) An application under this section may be made to the Court for leave to enforce or lhe enforcement of, payment of arrears under the order in question, (4) An Order under this section ror the payment or any sum may provide for the payment or that sum by installment!. of such amount as may bc specified in 1he order. (5) Thecollectingofficer under an attachment of earnings order made to secure paymenl under a payments order, shall not be liable- (a) for any act done by the collecting officer in pursuance of the payments order after the d11te on which that order ceased to have effect by reason or the remarriBgc of the person enti1led to payments under it; or (b) for any act done by the collecting officer after that dale in accordance with any enactment or rule or court specifying how payments made to the officer i n compliance with the attachment o f earnings order arc 10 be dealt with, if lhe a.ct was one which the officer would have been under a duty to do had the payments order not so ceased to have effecl and the act was done before notice in writing of the fact that the person so entitled had remarried was given lo lhe ofliccr by or on behalf of that person, lhe person liable to m11ko paymenl under the payments order or the personal representatives of either of those persons. (6) In this sec1ion " collcclion officer " in relation 10 an attachment of earnings order, means the officer of the High Court to whom a person makes payment!; in r:omplinnce wilh the nrd11r, Matrimonial Cau.w:s !No, 20 of2007 337
Section 68Verify source
§ 70Where the Court makes an order under this Pnrt requiringProvision

If the Court orders payments or property transfer and the beneficiary cannot manage property because of mental disorder, the Court may direct payment or transfer to the person’s carers.

70. Where the Court makes an order under this Pnrt requiring payments, including a lump sum payment to be made, or property to be transferred, to a pnrty 10 a marriage and the Court is sa1bf ,ed that the person in whose favour the order is made is incapable, by reason of mental disorder within the meaning of !hi:: Mental Disorders Act. of managing and administering the person's property and affairs then, subji::ct to any order, direction or authority made or given in relation to that person under that Act, 1he Court may order the payment to be made, or as the case may be, Iha property to transferred, to such persons having charge of that person as the Court may direct. Paym�111 elc, uni:ler order made in favnur of person suffer ins from mental disorder Cap, JOS PART IX PROTt:CT\ON AND CUSTODY OF CHILDREN
Section 70Verify source

Part

PART IX

§ 71Restrictions on decrees of dissolution, annulment or separationProvision

The court cannot finalize a divorce, nullity, or judicial separation order unless it is satisfied about the children-related conditions in this section.

71. (I) The Court shall not make absolute a decree of divorce or nullity ofmarrillge, or grant a decree ofjudicial separation, unless the Coun, by order, has declared that it is satisfied- (a) that for the purposes ofthis section there 1110 no children oft.he family to whom this section applies; (b) that the only children who are or may be children of the family to whom this section applies are the children named in the order and that- Restrictions on decrees diuolutlon. allnulmcnLor separation affecting children (i) anangements for the welfare of every child so named have been made and arc satisfactory or are the best tha1 can be devised in t.he circumstances; or (ii) it is imprac1ieable for the party or parties appearing before the Court 10 make any such arrangemenls; or (c) that there are circumstances making it desirable that the decree should be made absolute or should be granted, ns the case may be, without delay notwiths1anding that there nrc or maybe children of the family to whom 1hls seclion applies and that the Court is unable to make a declaration in accordance wilh pe.ragraph (b). {2) The Coutt shall not make an order declaring that it is satisfied as mentioned in paragraph (c) of subsection {I) unless it h.o.s obtained a sa1isfac1ory undettaking from either or bath of the panics lo bring the queslion of the arrangements for the children named in the order before the Coul't within a specified time. 338 (No. 20 012007 Matrimonial Causes (3) lflhe Court makes absolute a decree of divorce or of nullity or marriage, or grants a decree of judicial separntio:i, withoul having made an order under subsection ( I) the decree shall be void but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that conditions prescribed by subsections (I) and (2) were not fulfilled, (4) If the Court refuses to make an order under subsection (I) i n any proceedings for divorce, nullity Or marriage or judicial separation, it shall, on an applicalion by either party to the proceedings, make an order declaring tbo.t it is not satisfied as mentioned in that subsection. (S) This section applies to the following children of the family: (a) any child of the family who at the date ofthe order under subsection (I) is- (i) under the age of rwenl}'--0ne, or (ii) under the age of twenty-five and is receiving instruction at an educalional establishment or undergoing training for a trade, profession or vocation, whether or not the ·child is also in gainful employment; and (b) any other child of the family to whom the Court by an order under that subsection directs lhat this section shall apply; and the Coun may give such a direction ifil is of the opinion 1hat there are special circumstances which make it desirable in the interest of the child that this secti on should apply to child, (6) In 1his section " welfare ", in relation to a child, includes the custody and education of1he child and financial provision for the child.
Section 71Verify source
§ 72Orders for cus1ody and education of children in cases ofProvision

The Court may make custody and education orders for a child of the family, and may vary, suspend, discharge, or revive those orders.

72. (I) The Court may make such order as it thinks tit for the custody and education of any child of the family who Is under !he age of twenty-jlve- (a) in any proceedin� for divorce, nullity ofmarriago or judicial separation, before or on granting a decree or at any time thereafter, whether, in the case of a decree of divorce or nullity ofmarriage, before or afier the decree is made absolute; or (b) whore nny such proceedings -are dismissed after the beginning of lhe trial, either for thwith or within a reasonable period after the dismissal: Orders ror C11$I0dy and educntlon or cbildl'lln in CIISCS or divon:e,c!c, and for Cll510d)' in =sof ncglcc1 Matrimonial Causes IN•. 20 of2007 339 and in any case in which the Court has power by virtue or :his subseclion lo make an order in respect or a child it may instead, if it thinks fit, direct that proper proceedings be taken for making the child a ward of court. (2) Where the Court makes an order under section sixty, the Court shall also have power to make such order as at think:. fit with respect to the custody or any child ofthe family who is for the time being under the age of twenty-five; but the power conferred by this subsection and any order made in exercise of that power shall have effect only as respects any period when an order is in force under that section and the child is under that age. (3) Where the Court grants or mnkes absolute ll decree of divorce or grants a decree of judicial separation, it may include in the decree a declaration th.at either party to the m11.rriage in question is unfit to have the custody oflhe children of the family. (4) Where a decree of divorce or judicial separa1ion contains a declaration referred to in subsection (3), then, if the party to whom the declaration relates is a parent of any child of the family, that party shall not, on the death of 1he other parent, be entitled as of right to the custody o r the !JURrdinnship ofthat child, (S) Where an order in respect of child is made under this section, the order shall not affect lhe rights over or with re spec� to the child of any person, olher !han a panyto_the marriage in question, unless the child is the child of one or both of the parties to that marriage and that person was a party to the proceedings on the application for an order under this section. (6) The power oflhe Court under paragraph (o) ofsubsection (I) or subsection (2) lo make an order with respeel to a child shall be exercisable from time to time; and where lhe Court makes an order under paragraph (b) of subsection (l) wilh respect to a child it may from time to time until that child attains the age of twen,Y. five make a further order with respect to the child's custody and education. (7) The Court shall have power to vary or dischllfge an order made under this section or to suspend any provision thereof temporarily and to revive the operation of soy provision so suspended. 340 [No. 20 of2007 Malrimonlal Causes Power to provide for supel"l'islon of children Addi1ional juri�diclion ;, proceedings hy 11 wire • Cap. 123
Section 72Verify source
§ 73Power to provide for supcrllision of childrenProvision

The Court may place a child under supervision by a welfare officer when custody proceedings involve exceptional circumstances, and may also vary related orders for the child’s financial provision, custody, or education.

73. (I) Where tho Court hasj11risdic1ion under this Pan to make an order for the custody of a child and ii appears 10 the Court that there are exceptional circumstances making it desirable that the child should be under the supervision ofan independent p,.,rson, 1hc Court may, for any p<:riod during which the- child is, in exercise of that jurisdiction, committed to the custody of any person, order that the child be under the supervision of an officer appointed under thfa seclion as a welfare officer, (2) Where a child is under the supervision of any person in pursuance of this section the jurisdiction possessed by court to vary any financial provision order in the child's favour or any order made with respect to the child's custody or education under !his Part shall, subject to any rules of court, be exercisable at the instance of1he Court itself.
Section 73Verify source
§ 74Additionaljurisdiclion in proceedings by a wireCommencement

The court may hear certain proceedings by a wife even if the husband is not domiciled in Zambia, subject to specified conditions.

74. (I) Without prejudice to any jurisdiction exercisable by the Court apart from 1his section, the Courl shall have jurisdiction to enter proceedings by a wife, no1withs1anding that the husband is not domiciled in Zambin- {a) in the case of any proceedings under this Act, other than proceedings under section rwenty-fouror seclionsixty­ five to sixty-seven, if - (i) the wife has been deserted by her husband, or (ii) the husband has been deported from the Zambia under the Immigration nnd Deportation Act, and the husband was lmmediatdy b1:1for1: the desertion ordeponation domiciled in Zambia; (b) in the case of proceedings for divorce or nullity of marriage, if the wifo is resident in Zambia and has been ordinarily residenl there for a period of three years immediately preceding the commence men I of the proceedings. Powers or cout1 in cu.�tndy, etc., proceedings
Section 74Verify source
§ 75· (I) In proceedings in which application has been made. withProvision

In child-related proceedings, the Court must treat the children’s interests as paramount and may make orders about custody, reports, and access.

75. · (I) In proceedings in which application has been made. with respect to the custody, guardianship, welfare, advancement nr education or children or a marriage- (a) the Court shall regard lhe inlercsl gfthe children as the paramount consideration; and (b) subject to paragraph (a) the Court may make such order in respec1 of those matters as it thinks prgper. Matrimonial Causes [No,20 •12007 341 (2) The Court may adjourn any proceedings referred to i n subsection (1) until a report has been obtained from a welfare officer, or from some other suitable person appointed for this purpose by the Coun, on such matlers relevant to the proceedings as the Court considers desirable and may receive the report in evidence. I n proceedings with respect to the custody of children ofa marriage, the Court may, ifit is satisfied that it lS desirable to do so, make an order placing the children, or such ofthem as it thinks fit, in the custody of a person other than a party to the marriage, (J) (4) Where the Court makes an order placing a child of a marriage in the custody of a party to the marriage, or ofa person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party lo the marriage, or by the parties or a party to the marriage, as the case may be.
Section 75Verify source
§ 76Power of court to make orders on dismissal of petitionInterpretation

The Court generally must not make an order for the petitioner after the petition for principal relief is dismissed, but it may do so in limited cases.

76. (1) Except as provided by this section, the Court shall not make an order under this Part in favour of the petitioner where the petition for the principal reliefhas been dismissed, (2) Wherc- (aJ the petition for lhc principal relief has been dismissed after a hearing on the merits; and (b) the Court is satisfied that- (i) the proceedings for the principal relief were instituted in good faith to obtain that relief; and (II) there is no reasonable likelihood of the parties becoming reconciled; the Court may, if it considers 1hat it is desirable 10 do so, make an order under this Part in favour of the p1:titioner. (3) The Courtshall notmake an order by virtue of subsection (2) unless the proceedings for the order have been heard nt the same time as, or immedia1ely after, the proceedings for the principal relief. (4) In this section " principal relief" means relief of a kind referred to in paragraph (a) or (b) of the definition of" matrimonial cause " in subsection ( l ) of section two, P:\RT X )NTERVID.'TJO)I 77, In any proceedings under tbiiAet where the Court requests the Attomey.9eneral to do so, the At torney.General may intervene in contest or argue a1,1y question arising in the proceedings. nr Power court to make order� dismh;ul of petlt!on 1ncerv�n1icin by Atlorncy• Ocnc,.I on request from COUl1 342 [No. 20 of2007 Malrimonial Causes
Section 76Verify source
§ 78Intervenlion ofAnomey-Oenernl in other casesProvision

The Attorney-General may intervene in certain family proceedings if there may be relevant matters the court does not know about, and may delegate powers and functions under this Part in writing.

78. In proceedings under this Act for o decree of dissolution or nullity ofmarriage,judicial sepnrotion or in relation to the custody or guardianship of children, where the Attorney-General has reason to believe that there are matters relevanl lo the proceedings that have not been, or may nol be, but ought 10 be, made known to the Court, the Attorney-General may, a1 any time before the proceedings are finally disposed of, intervene in the proceedings. 79, (I) The Atlomey-General may, either generally or In relation to a maner or class of matters, by writing under the Attomey­ GeneraJ's hand, delegate all or llflY of thcAnomey-Genernl 's powers and functions under this P1111, except this power of delegation, to the person occupying from time to time, while the delegation is in force, the office of Solicitor-General or to any advocate. (2) A delegation under this section is revocable nl will and does not prevent the exercise of a power or the performance of a function by the Attorney-General.
Section 78Verify source
§ 80lnten·ention by other personsProvision

The Court may let a person intervene in certain marriage proceedings if the person may be able to prove relevant facts, and it may set conditions, including security for costs.

80. (I) In proceedings under 1his Act for a decree of dissolution or nullity of marriage or judicial �cparation or where a person applies to the Court for leave to intervene in the proceedi11gs and the Court is satisfied that the person may be able to prove facts relevnnt to the proceedings that have not been or may not be, but ought 10 be, made known to the Court. the Court may, at any time before the proceedings arc finally disposed of, make an order entitling that person to in1ervene in the proceedings. (2) An order under this section may be made upon such conditions as the Court thinks fit, including the giving of security for cost�. 8 1 , Where an ln1crvention takes place under this Part after a decree nlsl has been made and it is proved that the petitioner has been guilty of collusion with intent tG cause a perversion ofjustiee or thal malerial facts have not been brought before lhe Court, the Court may rescind the decree.
Section 80Verify source
§ 82Proceedings not lo be taken lo be finally disposed of beforeProvision

Proceedings are not treated as finally disposed of until the decree absolute has been made absolute.

82. For the purposes of this Part, where a decree nlsi has been made in any proceedings, the proceedings shall not be taken to have been finally di�posed of until the decree n/jj has been me absolute. ln1erven1ion ,r Anorney• General in othcr c= llcleg.irion by Anorncy. General fntcr,,ention by olhcr pcuons Rescission of dccrccn/1fin conscquimcc of intervention Proceedint1 m'IIIO be 1alccn lo be finally dispimd of befurcdccrcc nbsolute Malrlmonial Causes (No, 20 of2007 343
Section 82Verify source
§ 83A person intervening under this Par1 and section forty­Commencement

A person who intervenes under this Part and section 45 is treated as a party to the proceedings, with the rights, duties, and liabilities of a party.

83. A person intervening under this Par1 and section forty­ jive shall be deemed to be a party In the proceedings with all the rights, duties and liabilities of a party. Procedure in!CJ'11CCtlon No appeal after ,_ absolu1r Appeals Recognition or drcrc.:suuu:lr outside Zambia PART XI APPEALS 84 An appeal does not lie from a decree of dissolution of marriage or nullity of a voidable marriage after the decree has become absolute, 85 (I) A person aggrieved by a decree of the High Court exercising its jurisdiction under this Act may, within such time as may be prescribed by the rules, appeal from the decree to the Supreme Court. (2) Upon an appeal under this section, the Supreme Court may affirm, reverse or vary the decree appealed against. and may- (aJ make such decree as in its opinion should have been made at tirst Instance or on appeal, as the case may be; cir (b) order a rehearing at first instance on such terms and conditions, if any, as it thinks fil. PAR T Xll REcoGNlTION 01' FOREIGN OF.CREE.� 86 (I) A dissolution or annulment of marriage effected in accordance with the law of a foreign country shall be recognised as valid in Zambia where, al the date of the institution of the proceedings that resulted in the dissolution or annulment of marriage, lhc party at whose instance the dissolution or annulment was effected, or ifit was effected at the instance of both parties, either of those parties was- (a) In the case of the dissolution of a marriage or the annulment ofa voidable marriage, domiciled in that foreign country; ., (b) in the case of the annulment ofa void marriage, domiciled or resident in that foreign country, (2) For the purposes of subsection (I}- (u) where a dissolution of a marriage was effected in accordance with the law of a foreign country al 1hc instance ofa deso;rtcd wife who was domiciled in that foreign country either immedin1e1y before her marriage 344 [No. 20 of2007. Malrimonial Causes or immediately before the desertion, she shall be deemed to have been domiciled in that foreign country at the date of the ins1i1u1ion of the proceedings 1hat resulted in the dissolution; and (bj a wife who, at the date of the institution of the proceedings that resulted in a dissolution or annulment of her marriage in accordance with the law of a foreign country, was residenl in thot foreign country, and had been so resident for a period of three years immediately preceding that date shall be deemed to have been domiciled in that foreign country at that date. (3) A dissolution or annulment of a marriage effected in accordance with the law of a foreign country, not being a dissolution or annulment to which subsection (2) applies, shall be recognised a s valid in Zambia if its validity would have been recognised under the law of the foreign country in which, in the case ofa dissolution, the parties were domiciled at the date of the dissolution or in which, in the case ofan annulment, either party was domici led :it 1he date of annulment, (4) Any dissolution or annulment ofa marriage that would be recognised as valid under the common law rules of private International law but to which none of the preceding provisions of this section applies shall be recosnised as valid in Zambia and the operalion of this subsection shall not be limited by any implication from those provisions. (5) For the purposes of this section, the Court, in considering !he validily ofa dissolution or annulment effected under the law of a foreign country, may tre11.1 as proved any fai.:ts found by a court of the foreign country or otherwise established for the purposes of the law of the foreign country, (6) A disso\u1ion or annulment of a marriage shall not be recognised as valid by vinue of subsection (1) or (3) where, under the common law rules of private international law, recognilion of Its validity would be refused on the ground that a party to the marriage h:id been denied natural justice. (7) Subsections (I) to (6) apply in relation to dissolution and annulment effected, whether by decree, legislation or otherwise, before or nfier the commencement ofthisAct, (8) In this section ·• foreign country " means , country, or part of a country, outside Zambia, Matrimonial Causes (No. 20 oC2007 345 PART XJII EvlDEtlCE 87, (I) For the purposes of this Act. a matter offoct shall be taken 10 be proved ifit is established to the reasonable satisfaction ofthc Court. (2) Where a provision of this Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it is sufficient if the Court is reasonably satisfied of the existence of that ground or fact or as to that other matter.
Section 83Verify source

Part

PART XJII

§ 88(1) The evidence ofa husband or wife shall be ndmL--sibleProvision

Evidence by a husband or wife is not admissible to prove whether they had marital intercourse, and sexual-capacity evidence in nullity proceedings is generally heard in camera unless the judge allows open court in the interests of justice.

88. (1) The evidence ofa husband or wife shall be ndmL--sible in any proceedings to prove that marital intercourse did or did not take place between them during any period. for nullity (2) the In proceedings of marriage, evidence on the question of sexual capacity shall be heard in camera unless in any case the judge is satisfied that in the interes1s of justice any such evidence ough1 to be heard in open court. 89, (1) A witness in proceedings under this Act who being a party, voluntarily gives evidence on the witness' own behalf, or whether the witness is a party or not, is called by a party may be asked, and question the answer to which may show, or tend to show, adultery by or with the witness where proof of that adultery would be maminl to the decision of the case. bound to answer is a (2) Except as provided by subsection (I), a witness in proceedings under this Act, whether a party to the proceedings or not, is not liable 10 be asked or bound 10 answer, a question the answer to which may show, or tend to show, that the witness has comminedadultery.
Section 88Verify source
§ 90Proof of marriage, etcProvision

In proceedings under this Act, the Court may accept certain birth, death, or marriage records as evidence.

90. In proceedings under this Act, the Court may receive as evidence of the facts stated in it a document purporting 10 be either the original or certified copy of II certificate, entry or record of a birth, death or marriage alleged to have taken place whether I n Zambia o r elsewhere.
Section 90Verify source
§ 91Convictions for crimes to be evidenceProvision

In proceedings under this Act, a conviction can be used as evidence of the acts that made up the crime, and a certified conviction certificate can be used as evidence of the conviction and related particulars.

91. (\) In any proceedings under this Act, evidenci;: that a patty to a marriage has been convicted, whether in Zambia or elsewhere, of a crime is evidence that the party did the acts or things constituting the crime. (2) ln proceedings under this Act, acertifkate ofthe conviction of a person ofa crime by a court in Zambia or a court of any part of the Commonwealth, being a ceniticate purporting to be signt:id Standard of proof Evidence of husbands and wives Evidence ns " ndultcry Proufof merrlagc, etc. '" Corw\ttinns crimes tobe evidence 346 [No, 20 of2007 Marrimonfa/Causes Altachrncn1 bY the Registrar or other propcrofficerofthat court, is evidence of !he fact of the conviction and of any particulars of the crime or of the conviction, including the date on which lhecrime was com mitted, and ofany sentence ofimprisonmcnt imposed, that are included in the certificate. PART XIV ENfORCF.MENT OF DECREES 91, (I) Subject to the rules, the Court may enforce by attachment or by sequestmtion an order made under this Act for payment ofmainlenance or costs or in respect ofthecustody of, or access to, children, (2) The Court shall order the release from custody of a person who has been attached under this section upon being satisfied that the person has complied with the order in respect of which 1ho person was attached and may, at anytime, if the Court is satisfied that it is just and equitable to do so, order the release of such a person notwithstanding that the peffion hns not complied with that order. (3) Where a person who has been attached under this section i n consequence of the person's failure to comply with an order for 1he payment or maintenance or costs becomes a bankrupt, the person shall not be kept In custody under the attachment longer than six months after the person becomes a bankrupt unless the Court otherwise orders, Rc�ovccyof monc)'ll 11, Judgment debt
Section 91Verify source

Part

PART XIV

§ 93Recovery ofmoncys as judgment debtProvision

Money ordered paid by a decree under this Act may be recovered as a judgment debt, and the Court may allow enforcement against a party’s estate after death.

93. ( I ) Where a decree made under this Act orders the payment of money to a person, nny moneys payable under the decree may be recovered as a judgment debt in a court of competent jurisdiction, (2) A decree made under this Act may be enforced by lellve of the Court nnd on such terms and conditions as the Court thinks fit, against the estate of a party after the party's death. Summary en(orcemen1 ,r Clrdcrs (Gr mal'ltc��" Cap. !i6 Cap. !i!i
Section 93Verify source
§ 94Summary enforcement of orders for maintenanceProvision

A maintenance payment order is treated as a maintenance order for the Maintenance Orders Act, and the rules may provide other ways to enforce decrees under the Act.

94. Without prejudice to any power relating fo enforcement of decrees exercisable under this Act apart from this section, an order for paym.,ntofm11i111uu1U1Cl.l made under this Act shall be d1;:emed lo be a maintenance order for 1he purposes of !he Maintenance Orders Act, and may be enforced under the Maintenance Orders (Enforcement) Act Matrimonial Causes (No. 20 or2007 347 95, Subject to this Act, the rules may make provision for the enforcement of decrees made under this Act by means other than those specified in the preceding provisions of this Part.
Section 94Verify source
§ 96Enforcement of existing decreesCommencement

A decree made in a matrimonial cause before this Act started may be enforced either as it could have been enforced before this Act, or under the rules for enforcing a similar decree made under this Act.

96. A decree made in a matrimonial cause before the commencement of thls Act may be enforce d - (a) in the manner in which i t could be enforced i f this Act had not been passed; or (b) subject to the rules, in the manner in which a like dec�-:e made under this Act may be enforced, PART XV GENERAL PR0VIS!01'' S
Section 96Verify source

Part

PART XV

§ 97Institution of proceedingsInterpretation

A respondent may ask for related relief in the answer, and the Court should hear all matters from one petition together where practicable.

97. ( 1 ) Subject to subsection (2), a matrimonial cause of a kind referred 10 in paragraph (a) or (b) of lhe definition of" matrimonial cause" in subsection (I) of section twoof thisAct shall be instituted by petition. (2) A respondent may in the answer to the petition seek any decree or declaration that the respondent could have sough t in a petition or any relief referred to In paragraph (c) ofthe definition of"matrimonial cause" contained in subsection ( I) of section two. (J) Proceedings of a kind referred 1 0 in paragraph (c) of the definition of"matrimonial cause" in subsection (I) of section two that are in relation to proceedings under this Act for a decree or declaration of a kind referred to in paragraph (a) or (b) of that definition- (a) may he instituted by the same petition as that by which the proceedings for that decree or declaration are instituted; and (b) except as permittCd by the rules or by leave of the Court, shall not be instituted in any other manner. (4) The Court shall, so far as is practicable, hear and determine at the same time all proceedings instituted by the one petition.
Section 97Verify source
§ 98Duty of CounProvision

The Court must make the appropriate decree if it is satisfied that there is a ground for the relief sought, except as provided by the Act.

98. Except as provided by this Act. the Court, upon being satisfied of the existence of any ground in respect of which relief is sought, shall make the appropriate decree.
Section 98Verify source
§ 99Hearings to be in open counOffence

Court proceedings are generally to be heard in open court, but the court may exclude non-parties in special circumstances and may restrict publication of certain information; breaching the publication ban is an offence.

99. (I) Except to !he extent to which the rules m!'.ke provision for proceedings or part of proceedings to be beard in chambers, the jurisdiction under this Act of the Court shalL subject to subsection (2). be exercised in open court. Enforcement by olbcr -· Enforcement ,r cxl�lin,; dcaces Institution of proc«din,si; Duly of c,,n He�na�to be in open ro•rt 348 IN•. 20 or 2007 Matrimonial Causes "' Restrictions publi«tion ,r evidence lnjuno:1ion, (2) Where, in proceedings under th ls Act, the Court Is satisfied lhat there Ql'C special circumstances 1ha1 make ii desirable In the in1eres1s of the proper administralion ofjustice, that the proceedings, or any part of1he proceedings, should not be heard in open court, It may order that any persan5, not bl!ing parties to the proceedings or their advocates, shall bo excluded during the hearing of tho proceedings or any part of the proceedings, as the cnsc may b1;1, 100, (1) Except as provided by this section, a person shall not, ln rela1ion to any proceedings under th ls Act, print or publish, or cause to be printed or published, any account of evidence in the proceedings, or any other account or particulnrs of the proceedings otherlhan- (a) the munes, addresses and occupations of the parties and witnesses, and !be name or names of !he judge constituting the Court and of the advocates; (b) a concise statement of the nature and grounds of the proceedings and of the charges, defonces and counter charges, in support ofwhich evidence has been given; (c) submissions on any points of law arising in the course of the proceedings, and the decision of the Court on those points; or (d) the, judgment of the Coun and observations made, by the Court in givingjudgmcnt. (2) The Court may, ifit thinks fit in any particular proceedings, order that the matters referred to in paragraphs (a), (b),(c) and (d) ofsubseclion ( I ) or any uf thmi, shall not be printed or published, (3) A person who contravenes subsection �I), or prints or publishc�. or causes to be printed or published, any mailer, or part ofa matter, in contravention of an order of a court under subsection (2), commits an offence and Is liable, upon conviction, 10 a fine not exceeding fifty thousllJld penalty units or to imprisonment for a term not exceeding twelve months or lo bolh,
Section 99Verify source
§ 101(I) Wilhout prejudice to nny other powers of 1he Court,Offence

The court may grant injunctions or other orders in matrimonial matters, and may penalize non-compliance.

101. (I) Wilhout prejudice to nny other powers of 1he Court, the Court may, upon appliealion mnde by either party to the mnrriase whether or not an applieation has been made by ei1hcr pll.rty for any other relief under 1hisAct, grant an injunction or other order, as the case may be- (a) for the persC\nnl pralcction ofa pany lo the marriage or of any child oflhc marriage; Marrlmonlal Causes [No, 20 of2007 349 (b) restraining a party 10 the marriage from enterin g or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or which is the location of the premises in which the other party to the marriage resides; (c) restraining a party to lhe marriage from entering the place of work of the other pany to the marriage or restraining a pany to the marriage from entering the place of work or the place of education of any child of the marriage; (d) in relation to the propeny of a party to the marriage; or (e) relating to the use or occupancy of the matrimonial home, In exercising its powers under subsection (I), 1he Court may make an order relieving a pany to a marriage from any obliga1ion to perfonn marital services or render conjugal rights, (2) (3) lf the Court is satisfied that a person has knowingly and without reasonable cause contravened or failed to comply with an inj unction or other order under I his section, then. without prejudice to the power of the Court to punish tha1 person for contempt, the Coun may- (a) order that person tn pay a line not exceeding two hundred thousand penalty units: (b) require that person to enter into a recognizance, with or without sureties, in such amount as the Court considers reasonable, to ensure that such person will complyv.1th the injunction or olber order, or order that person to be imprisoned until the person enters into such reeogniz.ance or until the cx.piration nr three months, whichever lint occurs; (c) order 1hat person to deliver up to thi: Court sueh documents as 1he Court thinks fit; or (d) make such othcrofiJers ns the Court considers necessary to enforce compliance with the injunction or other order, (4) (I) The Court exercising jurisdiction under this Act may grant an injunction, by interlocutory order or otherwise, including an injunction in aid of the enforcement of a decree, in any case in which it appears to the Court to be just or convenient to do so, either unconditionally or upon such terms and conditions as the Court thinks just. ' 350 [�o. 20 012007 Marrlmonial Causes Cosu
Section 101Verify source
§ 102CostsProvision

The Court may make orders about costs and security for costs, and may dismiss frivolous or vexatious proceedings or parties.

102. In proceedings under this Act, 1he Coun m11y, subject to 1he rules, make such orders as to cos1s and security for costs, whether by way of interlocutory order or otherwise, as the Coun lhinksjust. friwl•lousor ,·exa1i11u� pnlCCCdinv tOJ, (\} The Court may, al any stage of proceedings under this Act, if it is Slltisfied that lhe proceedings are frivolous or vexnlious, dismiss the proceedings. Rules (2) The Courl may, at any stage of proceedings' undor this Act, ifil is satisfied that the allegations made In respect of a party to the proceedings arc frivolous or vexatious, order that party be dismissed from the proceedings,
Section 102Verify source
§ 104RulesCommencement

The Chief Justice may make rules by statutory instrument about High Court practice and procedure under this Act.

104. (I) TheChiof Justice may, by s1atutory instrument, make rules for or i n relation to the prnctice and procedure of the High Court in its exercise ofjurisdlction under this Act, (2) The rules of court referred to in subsection (I) may be made for the purposes of- (a) regulating and prescribing the practJco and procedure of the Court in matrimonial causes and any matters incidental to or relating to any such practice and procedure including the manner in which, and the time within which, any applications under the provisions of this Act are to be made to the Coun; (h) prescribing matters re\atins to lhe costs of proceedings and the assessmem or taxation of those costs; {c) prescribing the fonns and petitions to be used in connection with any cause or matter before the Court and the fees to be charged in respect of proceedings under 1hisAc1; (d) referring clnirrls or applications for or relating to !he custody of children or maintenance or any other mauer before the Coun 10 a welfare officer or other suitable person for lnvestigalion, repon and recommendation; {e) providing, in appropriate cases, for legal aid, for parties before the Court and the remission of eoun fees; (f) providing for the manner of service of nny deeumcnl requiring to be served or for 1hc manner of dispensing with such service; and f1d for reaulat!na or prescribing nny other mntter which is to Matrimonial Causes (No. 20 of2007 351 lOS, A petition for divorce. nullity ofa void or voidable marrinse or judicial sepnra.tion which was filed in the High Coun and which was not concluded or is pending at the commencement of this Act �hall be heard and determined in accordance with !he provisions nfthisAcL SCIIEDUl.f. (Sw/OIIJ 17 alld JIJ) PltOl!mm:D Dt.eRU.\ a, Cm.-..-.r,u;ram· A.','l),\fl1NIIV Dlvo,cc 1111d matr!monl•l prowdlngs commenced bcfo,c """""""' of this Acl Marrlase ora man is prot.ibitcd if the womilll is. or has be(:n tha\ mari's- COll.l"allgldlllly Ancestress Descendanl Sisler Frutu:r's lister Brothcr·5daughtcr Sistcr'Jdaugtucr Ancestor lle1twdan1 Brother Father's b101he1 Mot�r•s broth,:r llrolhcr'tJOll Sistcr•s wn Affln/1)1 Wife's mother Wlfe'sarandmnthcr Wifc'fdaushter Wife•, son'1 daugh1cr Wifc'5 dau&111er'1 d•uahtcr FaL�cr'1 wife Orandfithcr's wife Son'1wifc Son'1son'1 wifc Daugh1cr'1.v,n '• wife Affinil}' Husband's Father Husband'• grandrather Husband'� wn Hushand'i son•, $On Hu_,b;).fld', d4uJhtct•� son Mo1hct', hu�h11mt Orondmolhcr"I: hu1bW1d Dau11hm'� husbanli
Section 104Verify source
§ 51ln 's daughtr:t'i hu•b!llldProvision

A woman’s marriage is prohibited where the man is, or has been, in the relationship described in the text.

51.ln 's daughtr:t'i hu•b!llld Daughter'1 dnughter'I hu�band Marriage ofa woman is prohibited if the man is, or haR hec:n that woman'5 •- Ca.uimgr,Ulily
Section 51Verify source

Legislative relationships

3 referenced instruments

Names are derived from the stored provision headings and citation-enrichment layer. Treat this as a research index and verify each relationship against the source text.

G–M

3 instruments

  • High Court exercising its jurisdiction under this Act

    Section 83

  • High Court in its exercise ofjurisdlction under this Act

    Section 104

  • Marriage Act

    Section 27

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