2.

) Education

(a) Mirriam Tembo will continue attending school at Rhodes Park School until she
goes to college or University.

(b) John James will continue attending school at Little Bears preparatory School and
join Rhodes Park School in grade three.

3.) Financial Provision

Both parties will continue to support the children.

4.) Custody and Access

The parents shall have joint custody and will continue to have reasonable and
liberal access to the children of the family

After this paragraph comes the statement as to the health of the children if
there is any illness this must be stated so that the Courts knows when granting
Custody of the children:

The said children are not suffering from any serious disability or chronic illness
or The said children are not under the caer or supervision of a welfare officer or
other persons or organisation.

Dated at Lusaka this day of 2012

Signed: ............................................
Petitioner
FRANK TEMBO
Drawn up by: ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner

To: The Respondent

3. Where there is a Divorce pursuant to section 9(1)(d) of the Matrimonial Causes

Act, the Petitioner must also prepare the consent form that the Respondents
sign to indicate to the Court that they have no obligation to the decree nisi
been granted as the parties have lived separate for a period of more than two

Felix C Zulu 2012/13 Page 31

 (2) preceding the presentation of the Petition. It is prepared by the Petitioner
for the Respondent to sign.
___________________________________________________________________
CONSENT BY THE RESPONDENT FOR DISSOLUTION OF MARRIAGE AFTER TWO YEAR
SEPARATION FROM THE PETITIONER PRIOR TO THE PRESENTATION OF PETITION
(Pursuant to Section 9(1)(d) of the Matrimonial Causes Act No 20 of 2007)
___________________________________________________________________

I JOYCE KABWE TEMBO the Respondent in this matter do hereby confirm that the
marriage with the Petitioner has broken down irretrievably I have lived apart from the
Petitioner for a period of in excess of two years preceding the presentation of this
here petition and that I consent to the dissolution of marriage with the Petitioner.

Dated at Lusaka this day of 2012

Signed: ............................................
RESPONDENT
JOYCE KABWE TEMBO
Drawn up by: ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner

To: The Respondent

4. The Notice of Proceedings.

The main purpose of this document is to inform the Respondent and Co-Respondent if
any that there are proceedings which have been commenced against them. The
document gives them what they should do if they want to respond or defend the
petition. In a normal situation this document was ideally suppose to be prepared by
the Court but here the lawyer for the Petitioner prepares and gives it to the Deputy
Registrar to sign it. The notice also informs the Respondent that he has 29 days from
date of service to indicate to Court whether or not he intends to defend the petition
by filing in an answer to the Petitioner together with a Copy for every party to the
proceedings.
REPUBLIC OF ZAMBIA
NOTICE OF PROCEEDINGS
Div For
IN THE HIGH COURT FOR ZAMBIA 2012/HP/D.10
AT THE PRINCIPAL REGISTRY
(DIVORCE JURISDICTION)

Felix C Zulu 2012/13 Page 32

BETWEEN:

FRANK TEMBO PETITIONER

AND

JOYCE KABWE TEMBO RESPONDENT

TAKE NOTICE that a petition for divorce has been presented to this Court by FRANK
TEMBO a sealed copy of it (and copy of the Petitioner’s proposals regarding the
children) is (are) delivered with this notice.

1. You must complete and detach the acknowledgement of service and send it so
as to reach the Court within 8 days after you receive this notice, inclusive of
the day of receipt. Delay in returning the form may add to the costs.

2. If you wish to do so, you may send to the Court a statement settling out your
views on the proposals regarding the children. If you send a statement will be
placed before the Judge dealing with the arrangements for the child(ren) and a
copy of your statement will be sent to the Petitioner.

3. If the reply to Question 4 (or 6) in the acknowledgement is yes, you must,

within 29 days after you receive this notice, inclusive of the day or receipt, file
in the Court an answer to the Petition together with a copy for other party to
the proceedings.

4. If the reply to question 5 in the acknowledge is yes, the consequences to you

are that-

(a) provide the Petitioner establishes the fact that the parties to the
marriage have lived apart for two years immediately preceding the
presentation of the petition and that you consent, a decree will be
granted unless, in the case of a petition for divorce, the Court is
satisfied that the marriage has not broken irretrievably.

(b) your right to inherit from the Petitioner if he or she dies without having
made a will ceases on the grant of a decree of judicial separation or a
decree nisi of divorce being made absolute.

Felix C Zulu 2012/13 Page 33

 (c) apart from the circumstances listed above there may be others
applicable to you depending on your particular circumstances. About
these you should obtain legal advice from a solicitor.

5. If after consenting you wish to withdraw your consent you must immediately
inform the Court and give notice to the Petitioner

6. The only fact upon which the Petitioner relies in support of the petition is that
the parties to the marriage have lived apart for at least 5 years. Section 6 of
Divorce Reform Act, 1969 provides that if in such a case the Respondent applies
to the Court for it to consider the Respondent’s financial position after the
divorce, the decree nisi cannot be made absolute unless the Court is satisfied
that the Petitioner has made or will make proper financial provision for the
Respondent, or else that the Petitioner should not be required to make any
financial provision for the Respondent. Paragraph 9110 of the petition will tell
you whether the Petitioner proposes to make any financial for you. It is
important that you should consider this information carefully before-answering
Question 20 in the acknowledgement.

7. If the reply to Question 20 in the acknowledgement is Yes, you must, before

the decree is make absolute, make application to the Court by filling and
service on the Petitioner a notice in Form 8 A, which may be obtained from the
Court.

8. If you intend to instruct a Solicitor to act for you, you should once give him the
documents which have been served on you, so that the may send the
acknowledgement to the Court on your behalf. If you do not intend to instruct
a Solicitor, you should nevertheless give an address for service in the
acknowledgement so that any documents affecting your interests which are
sent to you will in fact reach you. Change of address should be notified to the
Court.

Dated at Lusaka this day of 2012

Signed: ............................................
DEPUTY REGISTRAR

Drawn up by: ZIALE CHAMBERS

Felix C Zulu 2012/13 Page 34

 Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner

To: The Respondent

5. Acknowledgement of Service

This document is served on the Respondent or Co-Respondent if any so that they may
have a chance to indicate whether or not he or she would like to relate on certain
issues. This document has certain questions which the Respondent or Co-Respondent
has to answer.

ACKNOWLEDGEMENT OF SERVICE

(IF YOU INTEND TO INSTRUCT AN ADVOCATE TO ACT FOR YOU GIVE HIM THIS FORM
IMMEDIATELY)
1. Have you received the Petition for Divorce delivered with this form? YES/NO
2. On what date and at what address did you receive it?
…………………………………………………………………………………
3. Are you the person named as the Respondent in the Petition?
…………………………………………………………………………………
4. Do you intend to defend the case? YES/NO
5. Do you Consent to a Decree being granted ………………………………………
6. Even if you do not intend to defend the case, do you wish to be heard on the
claim in the Petition for:-
a) Costs
b) Maintenance pending suit
c) Periodical payments
d) Secured periodical payments
e) Lump sum provision
f) Settlement or transfer of property
g) Variation of a settlement

Felix C Zulu 2012/13 Page 35

 h) Custody
i) Periodical payments for Children
7. Do you wish to make an Application on your account for:
a) Alimony………………………………………………………………………………
b) Maintenance…………………………………………………………………………..
c) Lump sum provision…………………………………………………………….……
d) Settlement or transfer of property…………………………………………………….
If possible answer YES or NO against each item in question 6 and 20.
Dated at Lusaka this day of 2012

Signed: ...............................................
Drawn up by: ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner

Unless you intend to instruct a Legal Petitioner, give your place of residence. If you
subsequently wish to change your address for service, you must notify the Court. If a
Legal Practitioner is instructed:
Signed: .........................................
Address for Service:
...................................................
...................................................
...................................................
...................................................
................................................... #

6. The Original Marriage Certificate

The other document to accompany the petition as stated above is the original
marriage certificate. If you do not have the original certificate of marriage you file an
affidavit and swear on the whereabouts of the original marriage certificate. This is
important so that the Court is sure it is dealing with a marriage that it has the
jurisdiction to dissolve.

Felix C Zulu 2012/13 Page 36

24.09.2012.

SEPARATION

There are two (2) types of separation and these are mutual and judicial separation.

Mutual Separation. This is where the couple agree that they should go separate ways
and also agree on how they will look after the children how they will support each
other. Where there is a mutual separation there may be some letter or document
exchanged between the couple on how this separation will work. How they are going
to live apart. You cannot accuse the other having left the matrimonial house.

Judicial Separation: this is a where the court is involved and is by the consent of both
parties. This is what is known as a Petition for Judicial Separation. The court will also
give its condition as how the parties are going to live separately. Judicial Separation is
covered by part VI of the Matrimonial Causes Act, sections 34 to 40. The Petition for
Judicial is basically the same as the Petition for Divorce. The facts are the same as
these for divorce the only difference is you don’t say that the marriage has broken
down irretrievably instead you state what the Respondent has done for example you
may state that your client cannot be reasonably expected to live with the Respondent.
After that you have the prayer. Eg.:

‘The Petitioner prays for a grant of a decree of judicial separation’ or ‘the

Petitioner prays for judicial separation’ or ‘the Petitioner prays that the
couple be separated’

It is, however, not correct to say that ‘the Petitioner prays that the parties be made
to go separate ways or she be released from this bondage’ or ‘save her from the
Respondent’. In the prayer you should also pray for custody, maintenance and for
property settlement.

To have a decree for judicial separation you have to prove one of the five (5) facts as
they appear in the grounds for divorce pursuant to section 9 of the Matrimonial Causes
Act. You do not however, have to apply these facts where the parties have agreed to
separate.
It can be granted, theoretically, the day after the marriage unlike a decree of divorce
which must be at least one year after marriage per section 6(1) of the Matrimonial

Felix C Zulu 2012/13 Page 37

Causes Act 2007. Everything in the Petition for Judicial Separation is the same as that
in the Petition for Divorce.
The main reason for filing for Judicial Separation is:
The Petitioner will not be obliged to cohabit with the Respondent Section 35 of the
Matrimonial Causes Act 2007 which is not the case if the couple just split up, by
mutual consent. At a later stage the husband can always walk back into the wife’s
house and remain there. He can’t do this if there is a decree for judicial separation.
Other reasons include: to get a financial order and Divorce is objected to on religious
grounds, or if the couple wants some time apart to cool down and then try to
reconcile etc.

Note just as in divorce, the Petition for Separation will be heard by a Judge and the
same Judge will decide custody issues, (and also any prayer for a restraining order)
but maintenance and property settlement issues will be heard by the Deputy Registrar.

Once the decree for Judicial Separation has been granted there is no sexual obligation
on the parties this is pursuant to section 35 of the Matrimonial Causes Act 2007 that
provides inter alia:

‘A decree of judicial separation relieves the Petitioner from the

obligation to cohabit with the other party to the marriage while the
decree remains in operation...’

No sexual contact whatsoever, once there is sexual contact the decree falls away as it
means the parties have reconciled.

There are four main instructions that a male client may give following judicial
separation and these are:

Custody: whether he is capable of bringing up the children by providing shelter.

Time: whether he can have proper time for the children to help them in their
upbringing.

Finances: whether he has the finances to support the children.

Why he wants custody of the children: Ask him whether or not he shall give access to
the mother of the children, if not, he should explain why not.

Felix C Zulu 2012/13 Page 38

The difference between Mutual and Judicial Separation.

1. You cannot enforce or go to court and say that the Respondent has not done ABC
(what you had agreed), you cannot enforce your mutual agreement such as to
enforce the custody arrangement.

2. A judicial separation will stop the parties from living together as if they are still
husband and wife, cohabitation ceases. The decree bars the two from sleeping
together in that sense, living as husband and wife. While in mutual separation
they can find their own way of going back to the partner without being
sanctioned. For these under Judicial separation when they come together even
for one night the decree falls away or is destroyed in a manner of speaking.
When a part to a judicial separation sleeps with another persons they have
committed adultery, so they cannot be on separation and start seeing somebody
else that will be a reason for a divorce.

An example of a Petition for Judicial Separation

___________________________________________________________________

PETITION FOR JUDICIAL SEPARATION

(Pursuant to Section 34 of the Matrimonial Causes Act, 2007 of the Laws of Zambia)
___________________________________________________________________
The Petition of CLARE NKWANGA JOLLY showeth that:
1. The Petitioner CLARE NKWANGA JOLLY was lawfully married to DEAN
JOLLY (hereinafter called “the Respondent”) on the 11th day of April 1987
at St. Ignatius Church in Lusaka.
2. The Petitioner and Respondent last Co-habited as husband and wife at Plot
163/737 Mukutuma Close Emmasdale Lusaka.
3. Both the Petitioner and the Respondent are domiciled in Zambia.
4. The Petitioner who is a Librarian/Documentalist by occupation and resides
at 34H (D) Bishops Close Kabulonga off Bishop Road and the Respondent
who is a Transporter/Businessman by occupation resides at 163/737
Mukutuma Close Emmasdale.
5. There are five (5) children of the family now living namely;
i. Kayleigh Vanessa Jolly (female) born on 13th August 1987

Felix C Zulu 2012/13 Page 39

 ii. Kira Siobhan Jolly (female) born on 7th September 1989
iii. Karla Bronwyn Jolly (female) born on 27th September 1992
iv. Andrew Dean Callan Jolly (male) born on 11th June 1995
v. Rhys Cameron Jolly (male) born on 4th January 1997.
6. There are no other children now living either born to the Petitioner or
Respondent.
7. There have been no previous proceedings in Zambia or elsewhere with
reference to the said Marriage or between the Petitioner and the
Respondent with reference to any property or either or both of them.
8. There are no proceedings continuing in any Country outside Zambia which
are in respect of the Marriage or capable of affecting its validity.
9. No agreement or arrangement has been made or proposed to be made
between the Petitioner and the Respondent for the support of either of the
parties or the Children.
10. The Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent.
PARTICULARS OF UNREASONABLE BEHAVIOUR
i. The Respondent is very violent and abusive towards the Petitioner
and often beats her which beating started two weeks after
marrying.
ii. In or around September 1989 when our child Kira was six weeks old
the Respondent beat me in front of his parents and the
Respondent’s Mother had thrown herself between us for the
Respondent to stop physically beating me.
iii. On one occasion when my late sister was around visiting the
Respondent beat me severely that I had to lock myself in one of the
rooms wherein the said sister found me and took me to my father
who later wrote a letter to my father-in-law complaining about my
treatment.
iv. At one time in 1998 I was badly beaten that it took the children to
call my parents who then took us and stayed with them for about a
month before the Respondent came to pick us up.
v. Due to financial hardships I started a business making and selling
Cakes but the Respondent would always interfere at one time

Felix C Zulu 2012/13 Page 40

 throwing a Cake on the ground and sometimes deliberately taking
away the Car I used for delivery so that I should fail to deliver.
vi. When I was working at UNICEF in December 2001 and MSF Holland,
January 2002 until Schools reopen the Respondent became
extremely cruel to me that he got the Car I was using from me and
thus started walking from work in Roma township through Garden
Compound to Emmasdale. etc
11. As a result of the Respondent’s violent behaviour towards the Petitioner,
the Petitioner is not only scared for her life and that of the children but she
is also traumatized that she cannot reasonably be expected to live with the
Respondent.
AND THE PETITIONER therefore prays:
i. That the Petitioner may be Judicially Separated from the
Respondent.
ii. That custody of the children of the family be granted to the
Petitioner.
iii. That a maintenance order be made for the benefit of the children of
the family and the Petitioner.
iv. That each party to bear its own costs.

01.10.2012.

NULLITY.

Sections 24 to 33 of the Matrimonial Causes Act No 20 of 2007 deals with the question
of Nullity. Something happened to make the marriage not to be a marriage at law.
Whether the marriage is void or voidable depends on the situation. A marriage may
either be void or voidable. And whether a marriage is void or voidable the parties
went through a marriage ceremony but the same has failed to become or be called a
marriage.

A Void marriage is one that is null and void until it is annulled during the life time of
the parties to it, it appears to be valid until someone brings out facts that lead to

Felix C Zulu 2012/13 Page 41

nullifying the marriage. Lord Green MR in Renevelle v Renevelle13 said inter alia that
a ‘a void marriage is one that will be regarded by every court in any case in which the
existence of the marriage is in issue as not having taken place, and can be so treated
by both parties to it without the necessity of any decree annulling it.’

Section 27 of the Matrimonial Causes Act 2007 provides that something has been
discovered that cannot allow the marriage to continue being a valid marriage pursuant
to the Marriage Act Chapter 50 of the Laws of Zambia. And the common reasons for a
void marriage are:

(a) The parties are from within the prohibited degrees of consanguinity and affinity.
Section 27(1)(a)(i) of the Matrimonial Causes Act 2007.

(b) Where the parties were under the age of 16years, the law says the people under
the age of 16 years cannot get married, cannot give valid consent to marry.
Section 27(1)(a)(ii) of the Matrimonial Causes Act 2007.

(c) Where either of the parties is already married. Section 27(1)(b) of the
Matrimonial Causes Act 2007.

(d) The parties are not respectively male and female. Section 27(1)(c) of the
Matrimonial Causes Act 2007. It would not make any difference if one them had
a sex change as they are the sex they were born.

(e) That the parties didn’t comply with the requirements of the Marriage Act with
respect to solemnisation of the marriage, section 27(a)(iii) of the Matrimonial
Causes Act 2007.

A Voidable marriage is one that may be valid until it is declared voidable by one of the
parties to the marriage or an interested party. The marriage is annulled as if the same
did not exist and it is usually for the following reasons:

a) There was wilful refusal by one of the parties to consummate the marriage.
Section 29(b) of the Matrimonial Causes Act 2007.

b) There has been no (failure) consummation due to incapacity by one of the

parties to consummate. Section 29(a) of the Matrimonial Causes Act 2007.

13
(1948) AII ER 56 at 60

Felix C Zulu 2012/13 Page 42

c) Lack of consent to marry. Section 29(c) of the Matrimonial Causes Act 2007. If
you force someone to get married that marriage is voidable.

d) If you get married to someone with mental sickness without you knowing you can
petition the marriage as they are considered incapable of validly consenting to
the marriage. Section 29(d) of the Matrimonial Causes Act 2007

e) If at the time of the marriage one is suffering from a known STD in its
communicable state. Section 29(e) of the Matrimonial Causes Act 2007.

f) If the at the time of the marriage the Respondent was pregnant from somebody
else not the Petitioner. Section 29(e) of the Matrimonial Causes Act 2007.

There are also situations where the person is under the influence of some substance
where they cannot make an informed decision. You get married to a wrong person e.g.
mistaken person where you know you are marrying a certain person by name but marry
somebody else.

There are circumstances where there is misrepresentation or duress or out of fear one
gets married to some person. Situation where you go through some sham marriage,
someone was playing tricks.

The petition for nullity is also like the divorce petition the document must tell the
story. For example that the marriage has never been consummated or any other
reasons set out above. Where you show the particulars you will state the reasons why
you say the marriage is void or voidable.

You can only bring a petition for nullity for the reason of consummation after 14 days
of the marriage because the law makers thought that every time before one can bring
up a case under consummation all attempts have been made by the Petitioner to have
sexual intercourse with the Respondent and thereafter until she left the matrimonial
home on such and such a day. If it is the husband refusing one can probably say that in
the first 14 days of the marriage the Respondent has not shown any interest or
encouragement to pursue her or has continued to insist that it is health that parties
have their separate bedrooms so that they never interfere with each other.

The court will, however, expect you to go beyond accepting the situation as above to
show that you tried on several instances to try and either you joined or opened the

Felix C Zulu 2012/13 Page 43

bedroom. There must be evidence of refusal. Where there is some medical situation in
the alternative the Respondent has ‘at all relevant times been and still remains
incapable of consummating the marriage. The Petitioner will ask the court to infer
that if the Respondent’s refusal to have sex with them wilful when they were due to
some psychological and medical problem.

The prayer: the Petitioner prays that the said marriage may be annulled. Where there
is no complaint after 14 days the parties can stay together for as long as 3 years and
when you go to court you don’t have to explain why there is no consummation, the
court will have to infer that there is no marriage.

Whenever a client comes to you for any issue e.g. divorce, nullity of marriage or
judicial separation find out if they have tried to reconcile their marriage but it is up to
you as an advocate to explain to them the beauty and benefits of the institution of
marriage. It is your duty to advice on issues of reconciliation.

You have to file together with your petition a certificate of reconciliation to show the
court that you have tried to reconcile the marriage but you cannot reconcile them i.e.
a void marriage there cannot be reconcile as a void marriage is one where although
there maybe some semblance of a marriage there is in fact a fundamental flaw in the
marriage which means that it is not recognised at law as a valid marriage.

The differences between a void and voidable marriage are:

1. Technically a void marriage is void even if it has never been declared to be so by

a court while a voidable marriage is valid from the date of the marriage until the
court makes an order.

2. A child born to parties of a void marriage is technically illegitimate.

3. Any person may seek a declaration that the marriage is void but only the parties
to a voidable marriage can apply to annual the voidable marriage.

Note you should never mistake lack of consent with refusal to consummate these
two are different things.
___________________________________________________________________
PETITION FOR NULLITY OF MARRIAGE
___________________________________________________________________

Felix C Zulu 2012/13 Page 44

The Petition for JOYCE KABWE TEMBO SHOWEST that:

1. On 1st July 2012 a ceremony of marriage was in fact celebrated between the
Petitioner and Frank Tembo (hereinafter called ‘the Respondent’) at St Ignatius
Catholic Church, Rhodes Park, Lusaka. Here you show that there was what was
purported to be a wedding ceremony.

2. Here you want to show that the couple attempted or did not attempt to
cohabit. After the said ceremony of marriage the Petitioner resided with the
Respondent at Flat Number 1234 Kabwata Flats, Lusaka..

3. The Petitioner and Respondent are domiciled in Zambia. This creates jurisdiction
of the couple.

4. That the Petitioner, who is a nurse at the University Teacher Hospital, resides at
House Number 10 Kalomo road, Rhodes Park, Lusaka and the Respondent is a
director with the Zambia Energy Corporation Limited resides at Plot 337
Chudleigh Lusaka. You want to establish the current resides of the couple.

5. There are no children born to the family now living. If there are you mention it
here.

6. No child now living has been born to the Respondent during the marriage as far
as is known by the Petitioner. If there are children from either of the parties
they should be mentioned here.

7. There are no precious proceedings in any court in Zambia or elsewhere in

reference to the said marriage or between the Petitioner and the Respondent
with reference to any property of either or both of them.

8. There are no proceedings continuing in any country outside Zambia which are in
respect of the marriage and are capable of affecting it in its validity or
substance.

9. No agreement or arrangement has been made or is proposed to be made

between the parties for the support of the Petitioner or the child of the family if
there are children of the family.

Felix C Zulu 2012/13 Page 45

10. The said marriage has never been consummated. This is where you give the
reason why the marriage is void or voidable.

11. The said consummation is due to the wilful refusal of the Respondent to
consummate the same. Must explain more of the facts that have lead to the
marriage been void or voidable.

Particulars.

i) Between the date of marriage and the 20th August 2012, when the
Respondent left the Petitioner, he refused all advances made by the
Petitioner, who was willing and anxious and ready to consummate the
marriage.

ii) During the honeymoon the Respondent refused to allow the Petitioner to
share his bed and declined all other than formal physical contact.

iii) On or about 13th September, 2012, the Petitioner finally attempted to

persuade the Respondent to consummate the marriage. Despite her
physical advances the Respondent refused, became agitated and
distressed, and then went out on his own for the rest of the evening.

The Petitioner Therefore Prays

1. That the marriage in fact celebrated between the Petitioner and Respondent
may be declared null and void.

2. Alternatively, that the said marriage be dissolved.

3. That the costs in this cause be for the Respondent.

Dated at Lusaka this day of 2012

Signed: ............................................
PETITIONER
Drawn up by: ZIALE CHAMBERS
Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner

Felix C Zulu 2012/13 Page 46

To the Respondent. The name and address of the person to be served with this
petition

15.10.2012

The petition tells the story.

Ancillary Applications

Any As a result of the petition some other issues come out that you need to consider
and sort out. And these applications are called Ancillary Applications. In either a
divorce or judicial separation petition the case has to come to a close before one can
apply for ancillary relief. Ancillary relief is a chamber matter and is therefore
commenced by summons. Where the law says commence the action by notice, you
therefore go by notice. The action is however, never commenced by originating
summons.

Any order made by the court takes effect immediately. Final maintenance order is
only made after decree nisi is granted.

Applications by Notice: These mainly relate to applications for an order for

maintenance, lump sum payment order and variation of settlement order. The reason
for the application to commence by notice in such matters is because there is normally
no quarrel about the orders per se. For example in the case of lump sum application
all the applicant is saying is that instead of paying her in instalments (which sums may
have been decided already) she wants the money paid in one lump sum instead.
Variation orders, payment is already settled but the applicant only wants to vary it.

Ancillary Applications are basically made pursuant to section 57 of the Matrimonial

Causes Act 2007 and are by leave of Court. These ancillary applications include the
following:

1. The Custody of the children of the family where there are children of the
family. When there are no children you do not have to apply for custody.
Custody entails looking after the children, supporting them, giving them shelter

Felix C Zulu 2012/13 Page 47

 so that they can have a good upbringing, spending time with them. Custody is
provided pursuant to sections 71 and 72 of the Matrimonial Causes Act 2007.

Sometimes you may have to ask for custody whilst the proceedings for divorce,
nullity or separation are still ongoing or pending, this is an emergency
application for the protection of the children.

2. The second ancillary application relief commonly applied for is the application
for maintenance pending suit. A party to the proceedings may apply for the
maintenance of the children of the family or themselves pending the suit. This
may be during the proceedings of the cause. This means that if a party was
been maintained during the marriage now that there is this suit and one may
find it difficult to survive without the help of the other party they can apply for
a court order, pending the suit maintenance suit. This is pursuant to sections
52, 56 and 57 of the Matrimonial Causes Act 2007

3. Periodic Payments. These are payments that are made periodically for
example per week, month, half yearly or yearly. This payment may be for the
maintenance or accommodation and so on. Sections 54(1)(a) and (b), 57, 59
and 60 of the Matrimonial Causes Act 2007.

4. Lump sum payment Order. This is the order you ask for if you want to be paid
a one off payment. The whole amount is paid at one go. Once you choose a
Lump Sum payment the client cannot go back and claim for some more. This
closes the issue for any more payments. This is pursuant to sections 54(1),
54(4),(5) and (6); and 57 of the Matrimonial Causes Act No 20 of 2007.

5. Settlement of Property Order. This is the order you apply for when you want
the court to decide as to how the matrimonial property is going to be settled.
If in a marriage there has not been any property then of course you don’t have
to apply for this order. They property may have been acquired by one of the
party’s or both it does matter. This is provided for under sections 55(1)(b) and
57 of the Matrimonial Causes Act 2007.

6. Transfer of Property Order. This is different from the above. You apply when
you want some property to be transferred from one to the other and to the

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 children. Provided for pursuant to Section 55(1)(a) and 57 of the Matrimonial
Causes Act.

7. Variation of settlement Order. This is basically meant to vary the settlement

order that was made before. Sections 55(1)(c) and 62 of the Matrimonial Causes
Act No 20 of 2007.

8. Avoidance of Disposition Order. This is an order you make to stop one party
from disposition of matrimonial property before the other party disposes so
that the court gets to it. This order is applied for when you can that one party
wants to dispose off some of the matrimonial property in order to defeat the
ends of justice. This is made pursuant to sections 68(2)(a) and 68(5) of the
Matrimonial Causes Act No 20 of 2007.

9. A Secured Periodic Payment Order. This is an order made against something

which is secured so as never to fail may be against some shares one party has
or any other security which the other party has seen fit by the court. Sections
54 and 57 of the Matrimonial Causes Act 2007.

10. Variation Order. This is an order made to vary all the above orders apart from
the property settlement order. Section 62 of the Matrimonial Causes Act 2007.

How do you make the applications for the above applications?

1. The Custody of the children of the family You apply by way of Inter parte
Summons supported by an affidavit. In that affidavit you must:

i) Show why you are applying for custody for the children of the family;

ii) Show that you have a place where the children can live;

iii) Show that you have the means to support the children when you have them
with you

iv) Show that you will have the time for the children. This time includes time
to help them with their home work, listen to their complaints, listen to
what they want. You have to teach them normal manners.

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 What about if your client has no house, and no income what should be done.
Then the father if he has the means should provide the means. If the father
remained in the matrimonial home the court can order the eviction of the
father from the home or ask him to find a suitable place to bring up these
children.

The children should not suffer some unnecessary shock because of the change
of environment, the court should try to lessen such situations as much as
possible, if you choose to bring up your children in say some very expensive
neighbourhood the court will try to make them have the same environment.

The court will look at the best interest of the children, so it will be no excuse
for one to go before the court and say that there is a divorce here and I am
getting married again and I want me and my new wife to be to live in the
Kabulonga house so cannot be ordered to live the house for the ex wife and
children.

The court may sometimes want to listen to the what the children have to say if
they are in the age group that can talk to give the court want they think about
which parent to stay with (give custody to).

2. Application for maintenance pending suit. The application is made by inter

parte summons, supported with an affidavit by the applicant who can be the
Petitioner or Respondent in the main cause and the matter is determined by
the Deputy Registrar and not the Judge. Do not include any suggestion as to the
amount of the maintenance in the summons. You should indicate the following
in your application for maintenance:
(a) Your income if any;
(b) The expected expenditure per month or period;
(c) The income of the other spouse from whom you are claiming
maintenance from
(d) The income you need for the other party i.e. the difference between
your income and the expected expenditure.
Expenditure for the children is relatively not a problem but it is when the other
spouse requires help from the other one. The order that the court may give at
this stage may differ after the divorce depending on the situation of the

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 parties. Sometimes spouses don’t what anything to do with each other and
would therefore not even what to apply for maintenance.
Example of the petition is set out below:
______________________________________________________________

INTER PARTE SUMMONS FOR MAINTENANCE PENDING SUIT

(Pursuant to section 56(1) of the Matrimonial Causes Act, 2007 of the Laws of Zambia)

LET ALL THE PARTIES attend before the Honourable Deputy Registrar Mr/Mrs ABC in
chambers on the 10th day of June, 2012 at 09:00 hours in the fore noon or so soon
after on the hearing of an application by the Petitioner for an Order for Maintenance
pending suit for the reasons set out in the affidavit herein.

Dated at Lusaka this day of 2012

Drawn up by: ZIALE CHAMBERS

Stand No. 911
Tito Road, Rhodes Park
P O Box 12345
Lusaka
Advocates for the Petitioner

To: The Respondent and his advocates

Lusaka

In the supporting affidavit, the applicant will depose about his/her needs,
salary/income, lump sums received etc. At this stage the court does not know
if everything is correct and as the summons and the affidavit will be served on
the other spouse, the other spouse will have the right to be heard. The other
side must also file in an affidavit giving their view. In the end the court will
decide by satisfying itself that both parties can be sustained after the Order is
granted.
When the summons and affidavit are filed, the court signs and seals them and
gives a return date. The documents will then be served on the other side at
least 4 days before the hearing date. If you are counsel for the applicant, you
will have discussed figures with the applicant and know what he/she wants. If
counsel for the breadwinning spouse, you should discuss if your client has a
duty to provide maintenance and if so, the quantum of that maintenance. Do
not be too combative in settling these issues - there can be several hearings
reviewing contentious orders and this can be expensive/time consuming.

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