Family Law

The Family and The Need to protect it

From the onset, we should understand how the constitution views the family
from section 22 (1). The constitution stresses the family as a fundamental
group unit because as the main building block of society, it is the first point
of learning and guidance for people. Read Huang v Secretary of States
for the Home Dept [2007] UKHL 11. In that case, it was said that humans
are social animals that depend on others. Their [extended] family is the
group on which many people most heavily depend socially, emotionally, and
often financially. There comes a point at which for some prolonged and
unavoidable separation from this group seriously inhibits their ability to live
full and fulfilling lives. This buttresses the importance of family and shows
the need to protect it.

Family Law is a specialized area of law dealing with issues related to family
relationships, such as marriage, divorce, child custody, property distribution,
etc. Family law also regulates the process of separation.

What is a family?
The Black’s Law Dictionary defines a family a collective group of individuals
living in the same household under one head or management. The common
perception of family is that it is a group connected by blood or marriage and
often residing together. There is a stereotypical view of the family restricted
to the father or mother and the children. There is, however, an evolving
definition of the family which looks at it as a fluid mechanism reflecting the
changes in society. Lastly, there is the diverse approach to family which
allows people to define the family the way they view it due to the different
views of family. It is difficult, therefore, to definitively define a family. Thus,
approaches are used.

Approaches to Defining the Family

1. The Person in the Street Definition
As the name suggests, to define a family, we should ask the ordinary
person in the street and not any professional person. This possess
challenges because even the ordinary persons may disagree on what a
family actually is causing debates due to difference in values, religious
beliefs or cultural perspectives

2. The Formalistic Approach

This approach says once formal requirements are met, then what you
have a family. For example, if there is a provision that describes what a
family must actually be, and you meet those stipulations, then you are
a family. There could be documented evidence to prove the existence
of the family. This definition focuses on whether a group of individuals
in question has certain observable traits that can be objectively
 proved. The only problem with the approach is that it can be too
technical because where the formal requirements are not met, the
group will not be defined as a family.

3. The Functionalistic Approach

This is about asking oneself if the people are functioning as a family
without any formal requirements met or relation of blood being
present. The core is to function as a single unit. The function-based
approach suggests that if a group of people perform certain functions,
then the law can call them a family. The law might then describe the
functions of a family as: (a) providing security and care to the
members, (b) socializing and raising of children, and (d) providing
economically for its members. However, there is no universal
agreement on whether these functions exist in isolation are must all be
accomplished.
Proponents argue that the functionalistic approach assumes a
particular role but the actual role is never agreed upon. There is also
an issue of proof as it is hard to determine if something has been done
and easier to establish what a family hasn’t done. This approach also
raises complaints as it ignores some things families hold together like
memories and shared values.

4. The Idealistic Approach

This states that no singular and universally applicable definition of
what constitutes a family can be established. It states that the
constructs of a family should be idealized based on our traditional
values.

5. Self-Determination Approach
This simply states a group people are a family if they think that they
are family. The people should be free to define and call themselves a
family without the validation of third parties.

To read:
- Fitzpatric v Sterling Housing Association [1994] 4 All ER
- Keegan v Ireland EEHR [1994] 18 EHRR 342
- Gammans v Ekins [1950] 2 All ER
- Helby v Rafferty [1979] 1 WLR
- Dyson Holdings Ltd v Fox [1979] QB 503
- Abdulaziz, Cobales & Balkandali v United Kingdom Appeal No
9474/81, Judgment of 28 May 1985 Par 62

Family law deals with interactions between individuals within the family.

Approaches to Family Law

1. The Functionalistic Approach
 This views family law as having a specific goal that it needs to achieve.
For instance, family law would want to achieve the goal of protecting
the family as a unit via prevention of domestic violence which forms
part of the family legal framework in Malawi for instance. Family law
can also try to achieve adjustive function by acknowledging that
people get married and people also divorce to minimize harm to family
members. Family law can also aim at supporting family life and ensure
that the institution of family is stable. For these, see Section 59 of
the Marriage, Divorce, and Family Relations Act. Besides the set
goals, there are other things that family law can regulate which are
ignored and thus disadvantageous.

2. Feminist Approach to Family Law

This refers to how family law has been used to oppress women and
how family law has affected all genders. For instance, under the old
customary laws, a woman could not divorce a man because of his
infidelity when the man could.

3. The Public Divide Approach

This is about a debate about the state’s intervention in family affairs.
The main issue is to what extent should the state regulate family
affairs.

4. Family Law and Chaos Approach

A good family should acknowledge that it regulating something that is
chaotic in nature. It should recognize that it deals with chaos and a
complex and unprecedented personal relationship.

5. Autopoietic Approach
This is usually self-defining that family law should recognize that is a
distinct feature of the law and people should define what a good family
law should be.

Classification of Families
a. Nuclear Families
b. Extended Families
c. Gay Families
d. Children headed families
e. Traditional Families
f. Single-parent families

Classification of Marriages
i. Monogamous marriages
This is where one person is marriage to only one partner at a time.

ii. Polygamous Marriages

 This is where one person is married to multiple partners
simultaneously. This is divided into polygyny and polyandry.

iii. Same Sex Marriages

This is where two people of the same sex are married to each other.

CURRENT ISSUES IN FAMILY LAW

A. Models on How the State Can Interact with Family
1. An Authoritarian Model.
Under this approach, the state would set out to enforce preferred
family behavior and prohibit other conduct. The state could even
impose both criminal sanctions and informal means of social exclusion
and stigmatization.
2. Enforcement of responsibilities in specific areas.
Under this model, the state would choose the most important
obligations and then seek to enforce those obligations.
3. The Manipulation of incentives
The state aims to encourage certain forms of family behavior by using
rewards rather than discouraging undesirable behavior through
punishment. For instance, tax incentives in the US where only one
spouse is taxed in the marriage.
4. Working Within Constraining Assumptions
In this model, the state does not advocate for particular family models
but it bases its resources on the presumption of certain styles of
families. For instance, benefit and tax laws were based on the
presumption that the wife was financially dependent on her husband
so only the husband would be taxed.
5. Substituting For and Supporting Families.
In this model, the state’s role is limited to supporting or substituting for
families if they fail. The state does not seek to influence the running of
the family until the family breaks down. An example is that of foster
homes and group homes in the USA where the state removes children
from parents who have failed to provide the basic necessities through
negligence.
6. Responding to needs and demands
Here the law intervenes only when requested to do so by family
members. Otherwise, the state does not intrude in family life.
7. Laissez-faire model
Under this model, the state would seek to exercise minimal control of
family life which would be regarded as a private matter unsuitable for
legal intervention.

B. PRIVATIZATION OF FAMILY LAW

Read and gather notes from Herring on this point.
INTERNATIONAL DOMAINS OF FAMILY LAW.
Due to the international marriages that occur between people of different
nations, international law is now concerned with family law. Article 16 of the
UDHR; Article 10 of the ICCPR; Article 18 of the African Charter on Peoples
Rights; Article of the African Charter on the Welfare of Child.

State Obligations.
- Article 16 of the UDHR; Article 23 of the ICCPR; Article 10 of the
ICCESCR
- Create a conducive environment for family formation and stability
including economic assistance. UDHR Articles 24 and 25; ICCESCR
Articles 10 and 11; CRC Article 13,
- Ensuring the child’s right to know… Articles 23 and 24 of the ICCPR;
Articles 2, 3, 5,7,8,9 18, and 27 of the CRC
- Protecting the rights of parents to educate their children according to
their convictions.

SOURCES OF FAMILY LAW

1. Constitution of Malawi
- Sections 22, 23, 24
2. Marriage, Divorce, and Family Relations Act
3. Child Care, Justice, and Protection Act
4. Gender Equality Act
5. Prevention of Domestic Violence Act
6. Customary Law
7. Common Law (Case)
8. Authoritative Books

LIST OF CASES FOR ASSIGNMENT 1

a. Mkulichi v Mkulichi Nee Lupesya Matrimonial Cause 37 of 2020
b. Elufe sadala v Kaisi Sadala Matrimonial Cause 8 of 2016
c. Gladys Ndunya v Gift Ndunya Matrimonial Cause 24 of 2015
d. Humphrey Malora v Alice Malora Matrimonial Cause 48 of 2016
e. Mpando v Mpando Matrimonial Cause 11 of 2019
f. Jonathan Sembereka vTafwa Sembereka Matrimonial Cause 30 of 2015

MARRIAGE BASED FAMILIES

Family law regulates marriages. Marriages are legal contracts. However, they
are sui generis contracts and are unique. As any contract, it creates rights
and obligations for the parties involved. In malawi, the rights and
obligations…

Reasons People Get Married.

- Practical reason.
- Societal and traditional beliefs.
 - Personal Feelings as part of intrinsic reasons.

What is Marriage?
It is not easy to define a marriage. It does not have a clear definition because
it is multifaceted. It is shaped by social, legal, religious and personal
perspectives. Others have argued that marriage is what the parties involved
take it to mean. Therefore, the perspective of a Christian couple basing their
marriage on the Bible can be different from the couple who are involved only
for tax purposes.
Historically, the common law marriage vow for the wife was she would be
“Bonny and buxom in bed and board” which simply meant “Behave properly
and obediently through night and day”. In The Neutered Mother, The
Social Family, and other twentieth-century tragedies, Martha Fineman
gave out a list, though not exhaustive, of parties to a marriage may think it
is. She said:
“Marriage to those involved can mean a legal tie, a symbol of
commitment, a privileged sexual affiliation, a relationship of
hierarchy and subordination, a means of self-fulfillment, a
social construct, a cultural phenomenon, a religious mandate,
an economic relationship, the preferred unit for reproduction,
a way to ensure against poverty, the realization of a romantic
idea…”

Perspectives in Defining a Marriage’

Due to diverse uncertainty of what marriage specifically means, there are
several approaches that are used to attempt defining what marriage is.

1. Functional Perspective
This approach tries to define marriage by deciding what the purpose of
marriage is. Earlier arguments proposed that the children are at the
heart of marriage and thus marriage is the license to get children.
However, critics argued that since many children are born to unmarried
couples as are born to married ones, then the purpose of marriage is
no longer children. Others have argued that the role of marriages is
regulate private property accumulation and creation of legitimate
heirs.

2. Psychological perspective
A different analysis of marriage considers its meaning by considering
the psychological need to marry and the interactions between the two
marriage partners. Anthony Giddens argued that people are now more
individualistic and are only willing to be in relationships so long as they
personally beneficial to them. Intimate relations are “entered into for
what can be derived by each person…”

3. Political perspectives in defining marriage

 Another definition hinges on the role of marriages in the society
arguing that marriage rests on the subjugation/defeat of women as its
essence. Proponents argue that marriage is a “labour relationship
between men and women where the woman pledges her labor,
sexuality and reproductive capacity for protection, upkeep and certain
rights to children.” However, there is a huge critic with the feminist
objection to marriage.

4. Religious perspectives
Marriage can also be discussed from a religious viewpoint where
religions teach that marriage is a spiritual union between spouses
reflecting God’s love; an indissoluble union; such a union must be
between an opposite sex couple although others are very open to
same-sex marriage. See Sheffield CC v E & S [2004] EWHC 2808
Facts
E was a young woman of 21 years but had hydrocephalus and spina
bifida. SCC alleged that E functioned at the level of 13-year-old and
she had limited independence skills and was very vulnerable to
exploitation. S was 37 and was a convicted offender of sexually
violent crimes including buggery of a minor. E and S met in2004 and
E moved in with S in the same year. The SCC learnt that E and S were
planning to get married. Concerned that the relationship had become
abusive, the SCC began proceedings to stop them marrying or
associating.

Issues
The SCC’s case was that E lacked capacity to make decisions about
where should would live, about whether she would have contact with
S and whether she would marry S.

Holding
The family division of the High Court held that an individual has the
capacity to marry if he or she understands the nature of the marriage
contract, that is, the marriage normally involves certain obligations.
The court also defined the rights and obligations that normally attach
to marriage. Regarding marriage from a religious or contractual
perspective, Munby J said:
“although we live in a multi-cultural society of many faiths, it
must not be forgotten that as a secular judge, my concern is
with marriage as a civil contract, not a religious vow.”
Sheffield CC v E&S [2004]

5. Legal Definition
In Hyde v Hyde, Lord Penzance said that marriage is “… the voluntary
union for life of one man and one woman to the exclusion of all
others.” However, this is understood as the ideal view promoted by the
law than a definition. The definition must be contrasted with one made
by Thorne LJ who said it is ”a contract which the parties elect but which
is regulated by the state in its formation and termination since its
status affects entitlements, benefits and obligations of the parties.”
Thorne LJ removed the opposite sex part of the Hyde definition and
opened the door for same sex marriages.

Lord Millet came to disagree and said that is a lawful union between
man and woman and it is a legal relationship between persons of the
opposite sex which need not be loving sexual, stable, faithful, or long-
lasting.
Facts
John Hyde, an English Mormon who had been ordained to priesthood,
brought an action of divorce against his wife, Lavinia for adultery. He
had left the church and began to write and publish Anti-Mormon
material a move that caused him to excommunicated from the LDS
Church. His wife left him and subsequently remarried which was the
basis for his suit for divorce. The first Court denied his position on the
grounds that the relationship he had entered into did not constitute a
marriage under the law of England.

Hyde v Hyde and Another

However, in Nachimson v Nachimson [1930] the court interpreted the

phrase ‘friends for life.’

The case of Bellinger v Bellinger [2001] 2 FLR dealt with whether the
definition of “male” and “female” meant that only those who were born
as such and did not surgically change their sex could enter into a
legally valid marriage.

Fact
Mrs Bellinger, a transgender female, born male, was denied the right
to marry on the ground that s.11(c) Matrimonial Causes Act 1973
stipulated that marriage was between a man and a woman. Mrs
Bellinger applied for judicial review because the refusal violated
Article 1, the right to marriage, and Article 8, the right to private life.
The Court of Appeal dismissed the appeal. Mrs Bellinger appealed to
the House of Lords, seeking a declaration that the marriage would be
lawful as the expressions ‘male’ and ‘female’ under s11(c) could be
interpreted to include transgender persons pursuant to s3 HRA 1998
or a declaration of incompatibility with article 12 under s4 HRA 1998.

Holding
The House of Lords dismissed the appeal in parts, leaving the
 question of whether males and females, as defined in the statute,
constituted those who had changed their sexes undecided and
directed towards Parliament to decide. The House of Lords made a
s.4 declaration that s(11) of the Matrimonial Causes Act 1973
was incompatible with the ECHR. Lord Nicholls said:
‘Recognition of Mrs Bellinger as female… would necessitate giving
the expressions ‘male’ and ‘female’ in that Act a novel, extended
meaning: that a person may be born with one sex but later become,
or become regarded as, a person of the opposite sex. The court could
not do that because it was not in the position to decide where the
demarcation line between male and female could sensibly or
reasonably be drawn…”

Bellinger v Bellinger [2001]

The MDFRA has also tried defining a civil marriage on section 18 by

restricting polygamous marriages and holding that such a person can
only have one spouse, somewhat agreeing with Lord Millet in Ghaidan
v Godin-Mendoza. Also see, yotamu v yotamu; . The Court in
Namatika v Namatika [1987] MLR 287 quoted and confirmed the
definition of a marriage to be that made by Lord Penzance saying it is a
voluntary union for life of one man to one woman to the exclusion of
others.

Other essential elements of monogamous marriages at

common law
- The first one is that entry into marriage must be voluntary as between
the intending spouses. Where it is proved that one or both of the
parties did not consent to the marriage, the court may annul it.

Facts
In 1952, the petitioner met a girl he only knew as Dora. He knew
neither her parents nor her address and had no sort of affectionate or
improper relationship with the girl at all and had not seen her for
several months prior to the celebration of a ceremony of marriage.
He had no idea how old she was. In 1953, he was arrested and
charged with corrupting a young girl who was a minor. After being
charged he was released on bail and met a solicitor who told him that
he was well known in Malta as a serving personnel and since it was
common among such personnel to defile young girls and escape to
England, he had no chance to win the case and would be imprisoned
for more than two years. His only choice was to marry the girl or be
imprisoned.
 The petitioner thus told the inspector of police that he wanted to
marry the girl. Arrangements were made that on the same day, he
told the inspector, he was to avail himself at a church in Malta where
a priest was waiting for him. There he finally saw the respondent
after months, got married and retired to the petitioner’s mother's
house where some discussion about the marriage was held.

Issues
The petitioner sought a declaration that the marriage was null and
void on the ground that it lacked his consent. In the alternative, if the
marriage was valid, he sought a decree of divorce on the grounds of
the respondent’s adultery.

Holding
Since the respondent did not challenge the allegations made by the
petitioner, Scarman J declared for the petitioner that the marriage
was indeed null and void because due to the facts given by the
petitioner, he lacked consent for it and was tricked by the police and
the solicitor as well. Scarman J added that in a case where it is
alleged that the petitioner’s consent has been vitiated by fear, it
must be shown, first, that fear of a sufficient degree to vitiate the
consent was present and secondly, that the fear was reasonably
entertained and it arose from external circumstances for which the
petitioner is not responsible.
Buckland v Buckland

- The second condition is that the marriage must be for life. This means
that marriage can only be determined by death or by a court of
competent jurisdiction.
o Nachimson case, page 217
o Oath in form F of the MDFRA which reads:
By the public declaration that you take each other as husband
and wife made in my presence, and in the presence of persons
now here, and by their subsequent attestation and by signing
your names to that effect you become legally married to
each other… that this marriage cannot be dissolved during
your lifetime except by a valid decree of divorce, and if either
of you before the death of the other shall contract
another marriage while this remains undissolved you
commit an offence…

- The third condition is that it must be heterosexual in nature.

Therefore, same-sex marriages are excluded.
 - The fourth condition is that it must be monogamous. Neither the
husband nor wife can contract another valid marriage during the
subsistence of the original union. See Oath in Form F above.
Facts
The respondent, an Englishwoman, went through a ceremony of
marriage with the appellant on 5 May 1939, at a London register
office, the appellant being described in the marriage certificate as a
bachelor. On 1 May 1928, the appellant had lawfully married a Hindu
woman according to Hindu rites at Muthra United Provinces, India,
and his Hindu wife was alive at the time of the appellant’s marriage
with the respondent. It was established that the appellant’s Hindu
marriage would be recognised by the courts of British India.

Issues
The question for the determination of the court was whether, having
regard to the appellant’s marriage in India, the subsequent English
ceremony of marriage was valid.

Holding
The court was bound to recognise the Indian marriage as a valid
marriage and an effective bar to any subsequent marriage in
England.
Baindail v Baindail [1946] 1 ALL ER

For the meaning of customary marriages, see:

- Mphumeya v R [1923] ALR MW 34
- Mungomo v Mungomo & others 1997 MLR 474
- Kandoje v mtengerenji [1964-66] ALR MW 558

Marriage as a Contract v Marriage as a Status

Marriage as a status means it is a relationship that comes with certain legal
rights and responsibilities automatically given by the law regardless of the
intentions of the parties. The status herein has been defined as ‘the
condition of belonging to society class to which the law ascribes peculiar
rights and duties. Therefore, this status view says that if a couple marries,
then they are subject to the laws governing marriage regardless of their
intentions. Rob George argues for this by saying:
Entering a marriage is, in some ways, more like joining a club. If you
meet the entry requirements, you may become a member, but it does
not entitle you to alter the club’s rules unilaterally. You can join the
club or not, and you can campaign to change the rules of the club
whether you are a member or not; but you cannot both be a member
of the club and refuse to abide by its current rules.
The other side of the coin views marriage as a contract which now governs
the marriage. The legal consequences are thus derived from this set of
agreements rather than rules set down by law.

Marriages can also be seen as contracts in Malawi and Contract Law.

See the case of Baroness

Classification of marriage
- Monogamous marriages
- Polygamous marriages
- Customary marriages
- Polyandrous marriages
- Gay marriages

Capacity to Marry
According to Section 14 of the MDFRA, two persons of the opposite sex who
are both not below the age of eighteen years and are of sound mind may
enter into marriage with each other.

Residence and Domicile

The relevance of the residence law is that is applicable before, during the
subsistence, and divorce proceedings. See Sections 19, 24, 27 of the MDFRA.
The preliminaries to the celebration of a statutory marriage in Malawi require
residence in a particular place by one or both intending parties as stipulated
in Section 19. The importance and significance are further shown in section
24 of the MDFRA which says that the Registrar of the district will issue a
marriage permit to the parties if he is satisfied, by affidavit, that one of the
spouses has resided in the district for at least fifteen days. Without such a
permit, the marriage shall be null and void if both parties do not meet any
criteria involving residence.

Residence is defined in Fox v Stirk [1970] 3 All ER 7 as “to dwell permanently

or for a considerable time; to have one’s settled usual aboard; to live in or at
a particular place.” It was stressed in the case that there is a need for a
degree of permanence in that residence for one to be a resident in that
location.
To be a resident:
- You need to be physically in a place
- You need to have an intention to be in place for more than a short
time
- There is no need for an intention to remain in that place permanently
or indefinitely
The case of Fox v Stirk also established several principles applicable to the
question of residence:
- A person can have two residences and be a resident of both;
 - Temporary residence at a place does not make a man a resident there;
and
- Temporary absence does not deprive a person of his residence.
Read David Banda Case where residence was interpreted as “having a
settled or usual aboard which suggests that it should not be equated merely
with temporary presence.” Read Adoption of Case 1 of 2009, in the
matter of the adoption of CJ (a female infant); Chifundo James Case
[MSCA].

Can one have duo residence? According to Fox v Stirk, yes! Recall that “to
reside means to have a settled or usual home. It is normal for people to
leave their homes for work or leisure without losing their residential status.
Therefore, a person can have a place abroad and still be considered the
resident of the earlier place.” Lavene v IRC.

Domicile
The concept implies a person’s permanent home. It determines a person’s
law or the law that governs them. The Domicile law is relevant in marriage,
divorce and inheritance since many rights and capacities are governed by
the lex domicilii [the law of the country where one lives permanently].

In Whicker v Hume [1858], domicile was defined as “what a person

considers as a permanent home.” The case also noted that that definition is
misleading because domicile is a legal concept. No person can be without a
domicile. Once one is born, they are given a domicile of origin. This only
changes when one takes up their domicile of choice. In Perepeko v
Perepeko [1997] 1 MLR 454., Mtambo J said:
The concept of domicile is not uniform throughout the world. To a civil
lawyer, it means habitual residence, but at common law, it is
regarded as the equivalent of a person’s permanent home. The
essence, therefore, of these and many other similar statements, is that
the intended residence must not be for a limited period, whether the
limitation is expressed in terms of time or made dependent upon the
occurrence of a contingency such as the accomplishment of a definite
task…”
A person’s domicile is important for two reasons in family law:
- The capacity to marry depends on one’s law of domicile. This principle
was established in the case of Sottomayor v De Barros [1877]; In
Malawi, section 14 of the MDFRA in agreement with Section 22 (6) of
the Constitution says only those above 18 can marry and they must
have sound minds.
- The jurisdiction of the courts over a particular matter may depend on
the domicile of the parties. In Malawi, for example, Section 60 (1) of
the MDFRA states that the court shall not have jurisdiction to hear
petitions to dissolve marriages unless the petitioner is domiciled in
Malawi. Paragraph (b) says that the court cannot make any decrees of
 nullity of marriages unless the petitioner is domiciled in Malawi when
the petition is presented.

There are three types of domiciles in family law:

- Domicile of Origin. Though not always, this is the legal system
in which a person is born and has a permanent place of abode. This
does not depend on the intention of the person to whom it is given
since it attaches by birth. If one has no domicile at some time, his
domicile of origin revives. In Alcock v Alcock [1979] MWHC 5, the
judge heard the divorce petition and established the court’s jurisdiction
because the petitioner was born in Malawi and lived here since his
birth, making Malawi his domicile of origin.
- Domicile of Choice. Any person above 18 years can acquire a
domicile of choice only through animo et facto [by act and
intention]. This means the person applying must have an intention to
remain in the domicile permanently or take up residence there. This
was discussed in Perepeko v Perepeko where the petitioner had
stayed in Malawi for 17 years, had a job in the country and intended to
live here permanently. A person can lose this if he leaves the domicile
and has no intention to return. This revives his domicile of origin.
- Dependent Domicile. Other persons cannot acquire domiciles of
choice on their own and they draw their domicile from others. For
example, minors are incapable of acquiring a domicile. The
domicile of a legitimate child is that of his father while that of an
illegitimate child is that of his mother. A girl who gets married while a
minor acquires the domicile of her husband. In Henderson v
Henderson, the judge said,
Domicile is the legal relationship between a person and a
territory subject to a distinctive legal system which invokes the
system as the personal law of such a person and involves the
courts of that territory in having primary jurisdiction to dissolve
his marriage… The relationship arises either, on the one hand,
from the actual person being, or having been, resident in
such territory intending to make it his permanent home
or, on the other, from being or having been related to another
person on whom the person of interest is legally dependent.
Thus, a wife is for this purpose legally dependent on her
husband, and a legitimate child on his father. This type of
domicile of the child and the wife is termed a domicile of
dependence. The domicile that the child derives from the father
is also known as his domicile of origin…
FORMALITIES OF MARRIAGE
1. Civil Marriages – Part IV
The starting point is Section 17 which demands that one must declare
that they are single. Then, one must give notice to the registrar
stipulated in Section 19. Form b in the schedule is one which is used
to notify the registrar. The registrar keeps a marriage notice book
which can be inspected by any member of the public. Section 20 gives
provision for those who are unable to read and write.

Publication of Banns
Section 23 speaks to publication of a marriage notice by the registrar.
The notice must use the names which people are more familiar with
and nicknames are even allowed. See See Dancer v Dancer [1948]2
All ER 731; [1949]p.147

On the other hand, where there is a fraudulent intention to conceal the

party’s true identity, a court of law can rule that the banns have not
been properly published. The reason for the concealment is not
relevant. In Tooth v Barrow (1854) 1 ECC & Ad. 371, it was held that
there was undue publication of banns where the parties intention was
to conceal the marriage from the man’s relatives. Likewise, in Small v
Small (1923) 67 Sol. Jo. 277 there was undue publication of banns
where a man was a deserter from the Army; and had assumed a false
name in order to avoid detection and prosecution. Also see Chipcase v
Chipcase [1942].

Caveat – Part VI [Sections 30, 31, 32 of the MDFRA]

Notice of the intended marriage is given to the registrar of marriage for
the district in which marriage is planned to be celebrated. The
registrar keeps a Marriage Notice book in which all marriage notices
are registered. The Marriage Notice Book may be inspected by any
person without payment of any fee during office hours. Marriage
Notices are also published by affixing copies thereof on the outer door
of his office.

Any person, who may know of a just cause why the marriage should
not take place, may enter a caveat against the issue of the Registrar’s
certificate. He must write the words ‘Forbidden’ opposite the entry of
the notice in the Marriage Notice Book. He has also to append there to
his name and address and the reasons why he claims that the
marriage should not take place. The registrar is required to refer the
matter to the High Court. The court will summon the parties to the
intended marriage and the person that entered the caveat. It shall
hear and determine the case summarily. The court may rule that there
is sufficient reason why the marriage should not proceed; in which case
 the Registrar shall not issue the parties the certificate for the
celebration of marriage.

See Mpoka v Mpoka, Civil Case No. 128/1976, HC (unrep)

On the other, if the court rules that the allegations against the
proposed marriage are not proved, he the Judge shall remove the
caveat from the Marriage Notice Book. This is done by cancelling the
word ‘Forbidden’ in the book and writing the words ‘cancelled by order
of the High Court,’ and appending his name thereto. The Registrar
shall then issue his certificate and the marriage shall proceed as if the
caveat had not been entered.

2. Customary and Religious Maarriages – Part VIII

x
INCIDENTS OF MARRIAGE
1. The Unity of Personality
Back in the twelfth century, the most important characteristic of
marriage was that it created a legal unity of personality between
husband and wife. Blackstone commented:
“The husband and wife are one person in law. The legal existence
of a woman is suspended and/or incorporated and consolidated
into the husband who provides protection and cover.”
This position has since been abandoned. Women are allowed to
maintain a large measure of their freedom and independence during
marriage. Women are allowed to enter into contracts alone with third
parties and maintain court actions.

Facts
R married his wife in August 1984 but the marriage became strained,
and his wife moved back to her parents' house in October 1989,
leaving a letter expressing her intention to seek a divorce. A few
weeks later, in November 1989, R broke into the house while his
wife's parents were out, and attempted to force her to have sexual
intercourse with him against her will. He also assaulted her,
squeezing his hands around her neck.

R was arrested and accused of attempted rape and assault

occasioning bodily harm. The first court convicted him and he
appealed. The Court of Appeal upheld the lower court’s conviction
and dismissed his appeal where he kept arguing that having been
married to R, she had given him irrevocable consent to have
sexual intercourse at all time.

Holding
Lord Keith of Kinkel stated that the contortions being performed in
earlier cases in order to avoid applying the marital rights exemption
were indicative of the absurdity of the rule. He agreed with the Court
of Appeal that the marital rape exemption was a "common law
fiction" and ruled that "in modern times the supposed marital
exemption in rape forms no part of the law of England. The Court
took the view that the law should declare that a rapist remains a
rapist subject to the criminal law, irrespective of his relationship with
his victim. R’s appeal was thus dismissed and conviction
upheld.
R v R (Rape, Marital Exemption) [1991]

2. The Right of Consortium and Duty to Cohabit

Consortium means living together as husband and wife with all the
incidents that follow from that relationship. Section 2 of the MDFRA
defines consortium as the fact of a husband and wife living
together, and includes a right to consummation, companionship,
care, maintenance and rights and obligations commensurate with
the status of marriage

At one time, it was accepted that the husband had the right to
enforce this right by confining her not only in his house but
restricting the places the wife could go to. Read Re Cochrane
[1840]. This was, however, rebutted in the case of R v Jackson
[1891].

A woman W left her husband for no good reason, and H went after
and brought her back forcibly. W then obtained a writ of habeas
corpus, but the judge subsequently discharged this and ordered
that W be returned to H’s custody. Quoting old law books, he said
there could be no doubt that “the husband hath by law power and
dominion over his wife and may keep her by force within the
bounds of duty, and may beat her, but not in a violent or cruel
manner”. W could regain her freedom, if she wished, by cheerfully
performing her part of the marriage contract.
Re Cochrane [1840]

Edmund Jackson was a spurned and desperate man. After his wife,
Emily, refused to live with him, he violently abducted her and
imprisoned her in his home in order to forcibly persuade her to
change her mind. Emily Jackson’s family obtained a writ of habeas
corpus as a means of releasing her. Before the Court of Appeal,
Edmund Jackson justified his actions claiming that ‘… if a wife
refuses to live with her husband, he has the right by law to take
possession of her person by force, and keep her, not imprisoned,
but confined, till she consents to do so …’.

The Court of Appeal held that there was no such right. the Court of
Appeal overruled Cochrane and granted habeas corpus, saying the
husband had no right to detain W against her will. If a husband
ever had the legal right to beat his wife, said Lord Halsbury LC
obiter, that entitlement was now obsolete
R v Jackson [1891]

It should be known that the right of consortium is reciprocal. The

husband as well as the wife has the right to consortium with each
other. It is no longer a one-sided male-dominated right. Read Place
v Searle; Perepeko v Perepeko; Section 48 (1).

The right to consortium also demands that the husband cannot

force himself on his wife, and the wife cannot force herself on her
husband. They must agree on the question of living together and
where exactly they would live. Read Nanda v Nanda [1967] 3 All
ER 401; Malinki v Malinki Civil Appeal No 2 of 1975; Grace
Nyangulu v Daniel Nyangulu and Lilian Dindi and Mary
Chirambo, Civil Cause No.108 of 1982

The right to consortium also includes the wife’s right to maintain

the maiden name, use the husband’s surname, or use both the
maiden and husband’s name as stipulated in Section 48 (2) of the
MDFRA. The wife is still entitled to continue using the husband’s
name even after the dissolution of a marriage with the name’s
owner as seen in Section 48(3). Should he feel that such use of his
name is to his detriment, the former husband may bring
proceedings in jactitation of marriage to stop her from using the
name further and injuring his reputation. Read Thomson v Rourke
[1893] p. 11.

The right also includes the right of the spouse to maintain their
citizenship and nationality during the subsistence of the marriage as
put in Section 48(4). During the subsistence of marriage, child
custody from the marriage shall vest as a mutual right in both
spouses.

The right to consummation should be understood from two aspects:

the formality to validate the marriage since an unconsummated
marriage is invalid; and the right to sexual intercourse during the
subsistence of the marriage. The first aspect nullifies the marriage
while the second aspect can be evidence for grounds of divorce. The
law recognizes consummation to be vaginal penile penetration only.
In Baxter v Baxter [1947] UKHL, the HOL held that
consummation took place even though the man was wearing a
condom. In Clarke v Clarke [1943] 2 All ER. Consummation as a
formality needs to happen only once. In P v P [1964] (3) 919;
Jodler v Jodler [1960] 1 All ER held that one can ask for nullity of
the marriage if one is refusing wilfully to consummate the marriage
as said in Section 77 (1)(f). This right to sexual intercourse as part
 of consummation is reciprocal. The right to consummation under the
right consortium may only be denied, as said in Section 48(7), on
reasonable grounds which include:
o Poor health;
o Post-natal recuperation;
o Post surgical convalescence;
o Reasonable fear that engaging in sexual intercourse is likely to
cause physical or psychological injury or harm to either spouse
o Reasonable respect for custom
Marital sexual intercourse must be exercised in a reasonable way.
Hence, excessive sexual demands by one spouse, or some other
reasonable excuse such as illness or knowledge that the other
spouse is infected with some venereal disease, may entitle the one
spouse to withhold consent. Read Fernandez v Fernandez [1992]
1 MLR 148; Sheldon v Sheldon [1966] 2 All ER; Rep v
Mwasumola; Malinki v Malinki; R v Cogan; R v Clark.

3. Marital Confidences
The essence of marriage relationship is that the parties are
expected to have a high degree of trust for each other while
exposing a high level of confidence that they will not betray one
another. In Argyll v Argyll [1965], the Judge held that… Also see
Section 49 (2).

However, as soon as the marriage breaks down, pain, bitterness and

vileness may lead one spouse to seek to or actually break these
confidences. As such, the law must offer some form of protection to
the victimized spouse, but to what extent? The court may use its
jurisdiction in equity to restrain one spouse from disclosing
confidential information acquired during marriage. It may also use
the law of evidence under which confidential communications
between spouses may be privileged.

In civil proceedings, a husband is a competent and compellable

witness against the wife and vice versa. Under the law, relevant
evidence is allowed and prioritized over the principle that marital
confidences should be protected. Read Theodoropoulas v
Theodoropoulas [1936]; Pais v Pais [1970].

4. Matrimonial Home
a. Choice of Location
 Cohabitation is a mutual duty which requires that spouses
should have a matrimonial home. Currently, there are no pre-
determined rules that govern its location. Previously, the final
decision on the location was vested in the husband. Read
Mansey v Mansey [1940] 2 All ER; King v King [1941] 2
All ER; Dunn v Dunn [1948] 2 All ER; McGowan v
McGowan [1948]

In other situations, spouses are unable to agree and one of

them must make a final decision on the issue. As a matter of
law, neither the husband nor the wife has an absolute right to
make the final decision. A plethora of circumstances must be
taken into account including easy access to the place of work
for one or both of them. If the husband is the principal
breadwinner in the family, he may be allowed to decide the
issue of the home and where it should be located. He should
be allowed to choose a place that is relatively near his place of
work. The converse is equally true: the wife may be allowed
to have the final say on the issue if she is in employment and
the husband is not.

The net result is that whatever decision is made regarding the

matrimonial home it must be reasonable, and in the best
interests of both spouses. The decision should not adversely
affect the health or business interest of the spouses, or any
one of them.

Read King v King [1941] 2 All ER; Munro v Munro [1950]

1 All ER; Walter v Walter [1949]

b. Ownership
NULLITY OF MARRIAGE
Just like contracts in commercial settings, marriage contracts can be valid and
invalid; void and voidable. Before discussing these, it is important to distinguish
between divorce and annulment. Where the marriage has been annulled, the law
recognizes that there had been some flaw in the establishment of marriage,
rendering the marriage contract ineffective. Where a divorce occurs, the creation of
the marriage is considered proper but subsequent events demonstrate that the
marriage should be brought to an end.
Valid marriages are achieved where the parties have capacity to marry under the
law of their domicile and that the correct formalities were all followed. On the other
hand, invalid marriages do not follow the proper formalities and the parties have no
capacity to marry. This renders the marriage void ab initio.
Valid marriages can also be voidable. Here, the presence of an impediment may
empower one of the spouses to renounce the marriage via a court’s decree of
nullity. Once a decree has been issues, its retrospective effect makes the parties to
be deemed as if they have never been married at all.
A better and simpler distinction between void and voidable marriage was made in
De Reneville v De Reneville [1948] by Lord Greene who said:
“A void marriage is one that will be regarded by every court… as never
having taken place and can be so treated by both parties to it without
necessity of any decree annulling it. A voidable marriage is one that will be
regarded by every court as a valid subsisting marriage until a decree
annulling it has been pronounced by a court of competent jurisdiction.”
According to Elliot v Elliot [1812], a petition for annulment may be presented by
a spouse during the lifetime of the other spouse. Therefore, should one the spouses
die before the decree of annulment is made, a voidable marriage will still be treated
as valid for all purposes.
Grounds for Nullity
According to Section 77 of the MDFRA, there are several grounds that may render
marriages either void or voidable. Unless the court is satisfied that one or more
grounds for nullity have been proven, the decree for nullity will not be pronounced.

Grounds That Render Marriages Void

1. Lack of Capacity to Marry
2. Lack of Formalities
3. Lack of consent
Principles of Matrimonial Property Distribution
1. Common intention of the parties
 Each party is deemed to own property that he or she bought
unless there was a common intention to own the property jointly
at the time of acquisition.
 This intention is evidenced by express agreement or implied by
words or conduct
 The court must analyse the facts and order what, in the
circumstances, is seems fair and reasonable.
 Read
o Kayambo v kayambo
o Nyangulu v Nyangulu
o Chibweya v Chibweya
o Malinki v Malinki
o Gissing v Gissing
o Forest v Forest

2. Contribution towards the property

 Any direct or indirect contribution of the parties to the property
will be taken into account.
 Read
o Rimmer v Rimmer
o Ellen Shaba v David Chizunga [significant or
insignificant contribution towards the property]
Custody of Children
 This arises when decrees of nullity, judicial separation, or decrees of
divorce have been made by the courts on marriages which have
issues.
 The courts only follow one principle: the best interest of the child
 Custodianship is having charge or responsibility over the safety and
health of the child
 It is a legal term used to describe a legal and practical relationship
between a parent and a child such as the right of the parent to make
decisions for the child and the parents' duty to care for the child.
 Under the CRC which is ratified by Malawi, the best interest of the child
is paramount and significantly central in any decisions concerning
children
 It also emphasizes that children have to be considered and protected
at all times.
 Common law recognizes custody as a responsibility aimed at ensuring
the child’s welfare and not as a parental right.
 The principle is section 23 of the constitution of the Republic of Malawi.
 Recall that part IX is not affected by section 3 of the MDFRA. See
section 48(5) and section 50 under the part.
 Read
o Kamanga v Kamanga
o Mpando v Mpando
o Chilungulo v Chilungulo
o Phiri v Jeke 16(2) MLR 715
o Botoman v Botoman 13 MLR 74
o Chiluwe v Chiluwe
o Almeida case on custody; suleman case
o PS adoption case 2013 MLR
 Child custody orders made in favour of one party do not extinguish the
parental responsibilities and duties of the other party on his/her
children.