There has been a major increase in the number of marriages in Zambia but this increase is nothing compared to the number of divorce cases which have been on the rise in recent years. According to media reports, divorce cases increased from 20,818 divorces in 2019 to 25,851 in 2020 (Times of Zambia, 2 June 2021). In 2021, the number of divorce cases was 22,000, while in 2022 (Zambia Daily Mail, 11 January 2023), the number rose to 31,000.

With the increase in the number of divorce cases, there has been curiosity about the law that governs divorce cases in Zambia. It is worth stating that divorce is a complex and sensitive issue that has profound legal, social and personal implications. The legal framework governing divorce is essential in ensuring that the process is fair, and equitable, and considers the well-being of all parties involved particularly children. It is not an easy process to go through both financially and emotionally.

In this article we briefly highlight the legal framework that governs divorce matters.  In Zambia the MATRIMONIAL CAUSES ACT NO.20 OF 2007 (“MCA”) provides a comprehensive legal framework for the dissolution of marriage, outlining the grounds for divorce, the process and the subsequent legal responsibilities regarding children.

Reconciliation Efforts

From the outset, it should be highlighted that the MCA encourages reconciliation between estranged spouses. Before proceeding with the divorce, the Court may require the petitioner’s advocate to discuss the possibility of reconciliation.

In this regard, section 25 of the MCA provides that Before proceeding with the divorce, the Court may require the petitioner’s advocate to discuss the possibility of reconciliation with the petitioner. If there appears to be a reasonable chance for reconciliation, the Court can adjourn proceedings to facilitate this process. This provision aims to reduce the incidence of divorce and promote the resolution of marital issues wherever possible.

Parties are urged to seek counselling before considering divorce.

Grounds for Divorce

Under the Matrimonial Causes Act (“MCA”), a marriage can be dissolved on several grounds. A person is not permitted to apply for divorce if he/she cannot rely on any of the grounds provided under the MCA The following are the grounds for divorce that are provided for in Zambia under the MCA:

1. Adultery:

In terms of section 9(1)(a) of the MCA a person may seek a dissolution of marriage on the ground that his/her spouse has committed adultery and he/she finds it intolerable to live with that spouse. To succeed on this ground, a person must demonstrate that his/her spouse  committed adultery, meaning there was or must have been sexual intercourse between the respondent and another person

2. Unreasonable Behaviour

A person may also seek a dissolution of marriage because his/her spouse has behaved in such a way that the person applying for divorce cannot reasonably be expected to live with his/her spouse. Section 9(1)(b) of the MCA specifies that any periods of cohabitation exceeding six months after the last incident of unreasonable behaviour are disregarded in determining the intolerability of living with his/her spouse.

3. Desertion

Section 9(1)(c)  of the MCA provides that desertion for a continuous period of at least two years immediately preceding the filing of the petition constitutes a valid ground for divorce. The MCA also provides for constructive desertion, which is a situation where the spouse’s behaviour forces the person to leave against their wishes.

4. Separation

Further, the MCA provides that parties can apply for divorce where they have lived apart for at least two years with mutual consent or for five years without the other party’s consent. This provision recognizes the breakdown of the marital relationship over time.

5. Presumption of Death:

Section 24 of the MCA also provides that if a spouse has been absent for seven years or more, and there is no reason to believe they are alive, a person can apply for the presumption of death and dissolution of the marriage.

Custody and Welfare of Children

The welfare of children in divorce proceedings is paramount. The MCA places significant emphasis on ensuring that any arrangements made regarding children are in their best interest. This is also in line with the Children’s Code Act no.12 of 2022 (“Children’s Code”). The following are some of the orders the court can make about the custody and welfare of the children:

1. Custody Orders

Section 72 of the MCA grants the Court authority to make orders concerning the custody and education of children until they reach the age of twenty-five. The Court can also vary or discharge these orders as necessary to adapt to changing circumstances. It should be noted that the Children’s Code Act was recently enacted and it makes provision for custody orders as such a court is required to take into account provisions of the Children’s Code. In this regard, section 141 of the Children’s Code also provides that a custody order may be made in respect of a child.

2. Supervision

In exceptional cases, Section 73 of the MCA also allows the Court to place children under the supervision of a welfare officer to ensure their well-being. This provision ensures that children receive adequate care and supervision during and after the divorce process.

3. Paramount Consideration

Additionally, section 75 of the MCA mandates that the interests of the children be the paramount consideration in any proceedings related to custody, guardianship, welfare, advancement, or education. This ensures that decisions made by the Court prioritize the children’s needs above all else. This is also provided for under the Children’s Code Act which gives more detailed considerations to be taken when granting custody orders. In particular, it states that in determining whether or not a custody order should be made in favour of the applicant, a court shall have regard to the following factors:

• The best interests of the child;
• The ascertainable wishes of the child;
• The conduct and wishes of the parent or guardian of the child;
• The ascertainable wishes of the relatives of the child;
• The ascertainable wishes of any person having parental responsibility for the child;
• The ascertainable wishes of any foster parent or any person who has had custody of the child and with whom the child has made a home in the last three years preceding the application;
• Whether the child has suffered any harm or is likely to suffer any harm if the custody order is not made;
• The customs of the community to which the child belongs;
• the religion of the child;
• Whether a care order, supervision order, personal protection order, or exclusion order is made about the child and whether those orders are in force;
• The circumstances of any sibling of the child and any other children in the home, if any.

We hope this article answered some burning questions. For further information regarding divorce or any other issues under the scope of family law, please feel free to contact Mbulo and Partners at info@mbplegal.co.zm. Subscribe to our website for more insightful articles.