Zambia: Landmark judgment for women in customary marriages

A precedent setting ruling by a local court in Zambia has given women married under customary law the right to a share of marital property in the event of a divorce or death of the husband.
Previously, a woman married under customary law would not be entitled to a share of property, irrespective of whether she had contributed to its acquisition.
Zambia has a dual legal system, and although statutory law takes precedence over customary law, the fact that many people live in rural and traditional settings has given customary law primacy in large parts of the country.

The subordination of women and the indulgence of men has been a feature of marriage under customary law, which stipulates that marriage is a union of a man who may or may not already be married and a woman who must be unmarried at the time of entering into matrimony.

In the event of a divorce, most tribes do not recognise a woman's right to a share of marital property - she gets whatever her ex-husband or his family decides she can have.

Local courts have to be guided by the traditions and customs of Zambia's seven main tribes, but because the practices and procedures remain unwritten and subjective, magistrates often use their own judgment when deciding such cases.

The situation was exacerbated in towns, where magistrates have had to deal with several customs or tribes simultaneously.

"The magistrates find it difficult to make decisions because of the societal influences, which are mixed with some tribal customs. It is only in the villages and rural areas where one tribe dominates that local courts are able to adjudicate properly using local customs," observed Matrine Chuulu, coordinator of the NGO, Women and Law in Southern Africa (WILSA).

In the divorce case between Martha Kembo Mwanamwalye and Collins Mwanamwalye on 9 December, Magistrate Mwamba Chanda ruled that "notwithstanding that the parties in this matter were married under customary law, justice demands that when a marriage has broken down, the parties should be put in equal position to avoid any one of them falling into destitution".

The magistrate's ruling was welcomed by Chuulu. "This is an interesting and progressive judgment: interesting because this ruling came from a local court, the custodian of tradition and lore, and it bases its judgment on tribal customs; progressive because for a long time women have suffered destitution when there is a divorce," she commented.

"It is difficult for women to get their share of matrimonial property even when they are married under the statutes, but for customary unions it is worse because custom does not give a woman any right to demand anything - in some customs even the children are taken away," she added.

In customary or traditional marriages families agree on a bride price (lobola), and a verbal agreement witnessed by relatives from both families is made. The couple do not sign any legal document to prove that they are married.

It is precisely for this reason that men prefer customary unions, said lawyer Manfred Chibanda. "All my friends and even my family and mother are married by tradition, because [the mindset is] 'I do not want my wife to get anything of mine, if she leaves my house then she goes the way she came' - it's a way of protecting ourselves," he explained.

On the other hand, lawyer Margret Chinyama said, the recent judgment "fixes" men with views like Chibanda.

"There is now no excuse for men not to marry under the statutes because, whether they like or not, their wives can get a share of marital property. It is poetic justice, actually, that this should be caused by a judgment from the local court, which is the custodian of such discriminatory laws," she added.

Marian Chembe, who married under traditional rites, said she was using the Mwanamwalye case to make her claim for a share of marital property. She divorced her husband after 30 years of marriage but was awarded nothing in the settlement.

"I will use this ruling to stake my claim. I think I have a good chance of getting at least one house from my husband - we had three which we had rented out," she said.

The Law Development Commission in Zambia is in the process of compiling a handbook on customs for local courts to take note of when determining cases of a traditional nature.

Referring to the Mwanamwalye matter, Chuulu concluded, "But in the meantime, we welcome decisions like this, as it shows that society is changing for the better."


LUSAKA, 21 Dec 2005 (IRIN)