ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

COURSE NAME: FAMILY LAW

TASK: ASSIGNMENT ONE

QUESTION: When parties in a civil marriage are divorced, the need to share
jointly owned property arises. There are several factors which the court takes into
account when making a property settlement or adjustment order. Cite and explain any
of three factors. Refer also to case law in your discussion.

DUE DATE: 29TH SEPTEMBER, 2023.

Family law as a branch of law that deals with family matters and domestic relations,
including: marriage; civil unions and domestic partnerships; adoption and surrogacy; child
abuse and child abduction; termination of relationships including divorce, annulment,
property settlements child custody and visitation etc.

The aim of this piece of academic writing is to discuss any of the three factors considered
when making a property settlement or adjustment order when parties in a civil marriage are
divorced. It will commence by defining the key terms, discuss the concept of divorce. It will
further discuss the three factors taken into account when making a property settlement or
adjustment in a situation of a divorce. A conclusion will then be drawn.

A civil marriage was defined as the voluntary union of one man and one woman to the
exclusion of all others1.

Divorce also referred to as dissolution of marriage is the process of terminating a marriage or

marital union2.

Property settlement is the act of sharing property between two people who were previously
married but have gotten divorced3.

A property adjustment order is an order made in family financial proceedings that provides
for the transfer or settlement of property and takes effect when a decree of divorce or nullity
of marriage is granted or when dissolution is pronounced absolute/final.

It is crucial to note that the High Court of Zambia is the first court of instance in any
proceedings for divorce or nullity of a statutory marriage, as well as any matrimonial reasons
originating under statutory or civil marriage as provided for under section 4(1) of the
Matrimonial Causes Act4.

Section 8 of the Matrimonial Causes Act provides for the grounds of divorce in Zambia. It
provides that:

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

1
[1866] LR 1 P & D 130
2
P.M Bromley (1988). Family Law (9th Ed). London: Butterworths
3
National Legal Aid Clinic For Women, Property Settlement.
4
The Matrimonial Causes Act No. 20 of 2007
The case of Buffery v Buffery5 affirms section 8 of the Matrimonial Causes Act, in which it
was elucidated that:

A failure by W to show that the marriage had irretrievably broken down by

establishing one of the five facts meant that she cannot succeed on her petition
notwithstanding the fact that they had grown apart, no longer had any thing in
common and could not communicate.

Section 9 of the Matrimonial Causes Act further provides that:

(1) For purposes of section eight, the Court hearing a petition for divorce shall not
hold the marriage to have broken down irretrievably unless the petitioner satisfies
the Court of one or more of the following facts:
(2) (a) that the respondent has committed adultery and the petitioner finds it
intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at
least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous periodic of
least two years immediately preceding the presentation of the petition and the
respondent consents to a decree being granted; or
(e) that the parties to the marriage have lived apart for a continuous period of at
least five years immediately preceding the presentation of the petition.

Section 9 of the Matrimonial Causes Act was illustrated in Sikazwe v Sikazwe6 in which the
petitioner, Caroline Sikazwe petitioned the for divorce on the ground that the marriage had
irretrievably broken down on account of the respondent’s adultery with Jennifer Nkonde the
co-respondent and that she found it intolerable to live with him. The petition was not
contested and the marriage was dissolved.

The legal authority for a Court to make property settlement or adjustment is provided for
under section 55(1) of the Matrimonial Causes Act which reads that:

The Court may, upon granting a decree of divorce, a decree of nullity of marriage or
decree of judicial separation or at any time thereafter, whether, in the case of a decree of
5
(1988) 2 F.L.R 365 CA
6
(1983) HP/D 78
 divorce or 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 the 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 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 to
which a party to marriage is entitled, be made to the satisfaction of the Court for
the benefit of the other party to the marriage and of the children of the family or
either or any of them;
(c) an order varying for the benefit of the parties of the parties to the marriage and of
the children of the family or either or any of them any ante-nuptial settlement,
including a settlement made by will or codicil, made by the parties to the
marriage;
(d) an order extinguishing or reducing the interest of either of the parties to the
marriage under the settlement;

It is important to note that this provision does in effect define property which is amenable to
property adjustment after divorce. Such property must be “property to which a party to a
marriage is entitled.” Such property was defined in the case of Watchel v Watchel7 held that
family property is

“Property which are acquired by one or the other or both of the partners with the
intention that they should be continuing provisions for them and their children during
their joint loves and used for the benefits of the family as a whole”.

The Court is required to ascertain whether the property concerned is a family property and
thus amenable to property settlement8.

The Court goes further to determine whether the applicant for property adjustment made any
contribution to the acquisition of the property in question.

In the case of Violet Kambole Tembo v David Lastone Tembo, the aspect of property
settlement was succinctly demonstrated. It provides that:

7
(1973) ALL ER 829
8
ibid
 “When the issue of settlement of property arises, the Court is obliged, among other
things, to have regard to all the circumstances of the case and so exercise its power
as to place the parties, to far as it is practicable and having regard to their conduct in
financial position in which they would have been if the marriage had not broken
down and each had the property discharged his or financial obligations and
responsibilities towards the other”.

In addition, in the case of Fribance v Fribance9, the Court of Appeal, in holding that in-kind
contribution of a spouse to property acquired during a marriage was sufficient to entitle the
spouse to a share of that property, asserted as follows:

“In the Present case, it so happened that the wife went out to work and used her
earnings to help run the household and buy the children’s clothes, whilst the husband
saved. It might very well have been the other way round. The title to the family assets
does not depend on the mere chance of which way round it was. It does not depend on
how they happened to allocate their expenditure. The whole of their resources were
expended for their joint benefit. And the product should belong to them jointly. It
belongs to them in equal shares (Per Lord Denning)”

Where property settlement is concerned, there are some other notable factors that must be
considered. These include the following:

The needs factor: the Court will balance the needs of the parties and availability of resources.
This was emphatically demonstrated in Dart v Dart10, in which Lord Justice Thorpe stated
that

In the needs factor, there must be an objective appraisal of what the applicant
subjectively requires to ensure that it is not unreasonable. But the objective appraisal
must have regard to such things as:

(a) what is available

(b) the standard of living to which the parties are accustomed
(c) their age and state of health
(d) and perhaps less obviously, the duration of the marriage, the contributions and
pension rights of both as affected by the marriage and accrued or likely to accrue.

9
[1957] 1 ALL ER 357
10
(1966) 2 FLR 286
The needs factor must therefore, be balanced with any factors such as the availability of
resources, for instance, the income, earning capacity, property and other financial resources
which each of the parties to the marriage has or is likely to have in the foreseeable future.

The Age factor: the age of each party is relevant because it impacts upon the earning capacity
of each party and or the proximity to retirement11. For instance; a middle-aged wife without
an income and with children to look after, will be protected by the Court in so far as the
resources of the husband allow; a young spouse is likely to have a relationship with someone
else to re-marry. The Court must take this factor into account when considering financial
relied; and if a party is about to retire, the level of maintenance may be fixed with reference
to his existing income, with a defined decrease when he receives his pension.

Duration of the marriage: Short term marriages will normally get short term relief 12.
However, if there are children, even a short-term marriage of two or three years will attract a
large proportion of the property or capital to purchase say a house for him or her and the
children.

Matrimonial home: the Court usually orders for the sale of the matrimonial home and divide
the proceeds or ask one party to “but out” the other. The Court could also transfer that share
to the other party13. Additionally, the Court may allow one party a life interest, that is, to live
in the house till death or for a specified period, especially for the benefit of the children.
Furthermore, the Court may also postpone the sale until the youngest child is eighteen or any
age after that as may be appropriate, usually due to being in an institution of learning.

In light of the above, it can be stated that, in an event that a divorce is granted, the Court of
law ensures that the parties to a divorce are treated fairly with regards to the aspect of
property sharing. This is done through a process called property settlement, which puts into
consideration of a number of factors which include, duration of marriage, matrimonial home,
age factor and needs factor. The essence of considering these factors is to ensure that jointly
acquired property is shared accordingly and fairly between the two parties to the respective
divorce that has been granted.

11
National Legal Aid Clinic For Women, Property Settlement.
12
ibid
13
ibid
 BIBLIOGRAPHY

BOOKS

National Legal Aid Clinic For Women Handbook on Property Settlement.

P.M Bromley (1988). Family Law (9th Ed). London: Butterworths.

CASES

Buffery v Buffery (1988) 2 F.L.R 365 CA

Dart v Dart (1966) 2 FLR 286

Fribance v Fribance [1957] 1 ALL ER 357

Hyde v Hyde (1866) LR 1 P & D 130

Sikazwe v Sikazwe (1983) HP/D 78

Watchel v Watchel (1973) ALL ER 829

STATUTE

The Matrimonial Causes Act No. 20 of 2007