FACTORS IN CONSIDERATION WHEN DECIDING ORDER OF PROPERTY AND CUSTODY OF CHILDREN IN ZAMBIAN COURTS

DISCUSS THE FACTORS WHICH THE COURT TAKES INTO ACCOUNT WHEN DECIDING THE ORDER OF PROPERTY SETTLEMENT BETWEEN THE DIVORCED PARTIES.
DISCUSS ALSO THE FACTORS WHICH THE COURT CONSIDERS IN MAKING A CUSTODY ORDER

AUTHOR: KATALILO JOY

INTRODUCTION
This paper will discuss factors considered by the courts when making an order of property settlement and child custody between divorced parties. These matters are covered in the Matrimonial Causes Act of 2007 (MCA 07).

The courts are guided by part VIII and IX (Section 51 to 76) of the MCA 07 when considering the settlement of financial matters for parties to a marriage. The courts will thus take the following factors into account when making an order of property settlement:
1) The needs factor
This addresses the problem that raise when the couples are divorced and each party wants to secure itself for the future. Usually the parties want to have what is genuinely theirs, the things that they have worked for during the marriage. Sometimes the need to get what belongs to one is exaggerated to the point where a party will assume that just by being party to the marriage everything that was acquired during the marriage, even where one had no input, should be theirs and for them alone.
The courts are therefore required to appraise the demands of each party to the divorce objectively and ensure that the demands made are reasonable. To ensure objectivity the courts should appraise the demands taking into account the property available and the standard of living to which the parties were accustomed to.
In the case of Dart v Dart a woman on her divorce from an American multi-millionaire, was awarded a house in the USA together with a lump sum of £9m. She appealed and sought £120m as an appropriate proportion of their joint assets, but her appeal failed.
The courts were of the view that the woman having had made no direct contribution to the husband's wealth, there is no justification for applying a purely mathematical test. The correct test to apply is what she reasonably requires.

The courts will thus look at the income both parties earn at the present time. This will include considering the salaries or profits from a business earned by the parties and benefits in kind. The courts will also consider the present and future earing capacity of the parties. It is true that one with an education stands a higher chance of finding a good job in the future than one without. So if the husband has no education and the wife has, even if the husband is able to make a living from some businesses , at present, the court will consider him to be in need in the future. It would also take into account the employment rate, for the rate maybe such that it will not be able to absorb any more workers in the future. The idea is to ensure that none of the parties is pushed below the standard of living one is accustomed to.

The properties of the couple to be considered will include real estate, insurance policies and inheritance and other valuables. This means that what has been inherited or to be inherited is considered as part of the available resources for the couple.

2) Financial obligations and responsibilities’ factor
This aspect looks at the life of the parties to the marriage before marriage. For most couples in Zambia they enter marriage as a package in that before they marry they already have responsibilities such as children from previous marriages or illegitimate children or old parents, orphans, etc. These responsibilities do not finish when one enters marriage, in fact they continue and at the time of divorce they have to be taken into account.

In the case of Fisher v Fisher following their divorce, the husband was ordered to pay the wife a lump sum of £50k together with maintenance of £5600 a year for herself and £1400 a year for their son. The wife subsequently had a second child by another man and applied for an increase in the maintenance order.

It was held that the woman’s earning capacity had been reduced by the birth of the new baby and that there was nothing in the 1973 Act to restrict the court's discretion to vary the order so long as all relevant factors were taken into account.

The courts will further consider the age of the parties to the divorce. A young spouse has the potential of getting married in future and thus, the courts would make an order that takes into a count this possibility. It follows that a party that is old and has been married for a long time will have less need than a young person and thus the old one should receive less financial relief than the young one. The courts also consider the duration of the marriage. In a case of a short-term marriage and childless, the court would order short-term relief. However, even if the marriage is short-term, the court may order long-term relief if there are children involved.
In the case of C v C a wealthy businessman met a high-class prostitute and they married and had a child and then separated after nine months. In ancillary proceedings on divorce, the judge ordered a lump sum payment of £195, 000 to the prostitute so that she vacates the matrimonial home together with annual payments of £19, 000 for herself and £8,000 for the child. The husband's appeal failed.

It was held that a short marriage doesn't necessarily limit an award, and although the award was high it was within the bounds of reasonableness. The absence of a time limit was justified by prostitute's uncertain career prospects, and the husband could always seek a variation in future.

The behaviour of the parties while court proceedings are on-going becomes a factor to be considered. There are cases where the man or woman is a reckless gambler or would want to get rid of the other party so that the other party should receive nothing. There are times were one party will even use intimidation to frighten the other from claiming a settlement. Such acts will lead the courts to issue a clean break order depending on the extent of the behaviour. The aim is to cut contact between the two parties quickly and permanently so as to safeguard the other party’s wellbeing.

In the case of Evans v Evans husband and wife were divorced in 1953, but in 1985 the wife was convicted of inciting contract killers to murder the ex-husband and was sentenced to four years' imprisonment.
The husband applied for his periodical payments to be terminated, and the wife counterclaimed for them to be increased.
It was held that the court would be losing touch with reality if it were to condemn a man who had faithfully paid maintenance for some 35 years to continue making payments to a wife who had solicited others to murder him.

The law that deals with custody of children is the Affiliation and Maintenance of Children Act . Section 15 of the said Act gives jurisdiction to the court that hears the issue of maintenance over the hearing of the claim for the custody of children. The Act in sub-section 2 of 15 emphasizes the court’s duty to the child that it is the child’s welfare that should have paramount consideration and not the superiority of custody claim of either the father or mother. This is supported by the United Nations Convention on the Rights of the child under Article 3(1) that anybody dealing with the issue of a child whether it be a public or private social welfare or indeed the courts of law, the best interest of the child shall be of primary consideration.
If the welfare of the child is to be paramount then it follows that alleged or confirmed behaviour of the parties though important should not be the basis of denying custody unless the behaviour is so grave that it would have an impact on the child.

In the case of Re L (infants) the court refused to give custody to the mother because she had a behaviour considered undesirable for the growth or well – being of the children.
The needs of the child are another issue to consider. A child has many needs which vary as it grows. The needs are even more for those children from divorced homes. A child of tender age naturally needs the mother. This was emphasized in the case of Brixey v Lynas were despite the father being an affluent man and of many means was denied custody in preference to the mother who was less off on the premise that it is "a generally recognized belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child's needs than is the father."

The lifestyle of the parent is also a matter of consideration. The aim in considering the lifestyle of the parent in a custody determination is to come up with a picture of the moral development the child will receive under that parent. If it is concluded that the child may be corrupted by being under the charge of a particular parent the courts will be hesitant to award custody to such a parent. Therefore, if a parent is mentally impaired or is on substance abuse he could not have custody. In the case cited above of Re L (infants) custody was denied to the mother as she was found to promiscuous to an extent where she was ready to desert a four and six year old in pursuit of her desires.
If the divorced marriage had more than one child the courts will consider the effect of separating the children especially when the children are young. The separation to be considered is not only the issue of separating the children but also the separation of the children or child from the matrimonial home. It is better if the child is of reasoning age since then he can decide which parent he is comfortable staying with. In the case were the courts have to decide, the courts would rather give custody based on gender i.e. a girl child goes with the mother and the boy child go with the father.
If the children have to move from the matrimonial home the repercussion is that they have to move to new schools and new neighbours and new friends. The courts will want to lessen this burden by giving the matrimonial home to that party that gets custody of the children.

The courts will also consider the capacity of the parents to provide for the child. Custody will usually be given to one who can meet the physical well-being and moral and religious needs of the child.

A scenario presents A and B to have married under the Marriage Act, Chapter 50 on 20th July 1999 and today they have obtained a decree absolute in their divorce proceedings. During the marriage of 14 years they had acquired two flats (a small and big one) in villa Elizabetha in Lusaka: Each contributing money towards the purchase. Prior to the marriage, A (husband) had bought a big house using his own money which later became the matrimonial home. They also have three used cars a Prado and two corollas. The have two children Lwent (7) and Patrick (4).

B wants the matrimonial house and the two corollas. A wants B to get the smaller flat. Each wants sole custody of the children.

Lord Justice KATALILO, J sitting as Trail Judge in B v A orders as follows:
The custody of the children will be given to the mother and the father will be allowed unlimited visitation.

In making this order the courts took the interests of the children to be paramount. The facts do not show that the mother is of reckless behaviour and there is no indication that the parties have become enemies in the process and as such future contact between them would not affect the children.

The court arrived at this order by considering the age and gender of the children. The children are minors below the age of 8 years and thus it was felt that they still need the motherly care. The court had considered giving the older child to the father but it concluded that this would not be ideal in that a girl child is best suited to be under the care of the mother and the boy child is best suited to be under the father. The boy is too young to be under the care of the father. All the odds thus favour the woman in this case and as such the decision.

Further the court order that the wife be granted the matrimonial house and a corolla car.

The court took into account all resources available to the parties and it concluded that the wife be allocated as such. The first issue that was considered was, again, the best interest of the children in this matter. The children are accustomed to the matrimonial house and have built memories around that environment including friends within the neighbourhood and school and church. It will be unfortunate to separate the children from this environment and since the wife has custody of the children it follows that she be granted the matrimonial house.

The court further considered 14 years in marriage to be considerable and the fact that the marriage was with children and as such the court was not at pains to grant the wife the matrimonial home despite it having be the property of the husband way before the marriage subsisted. The presence of the wife in marriage for so long is contribution enough for her to be awarded the house.
The wife has been granted one corolla as she has to maintain her standard of living that she enjoyed during the marriage. She need not gain out the marriage but should again not be pushed below the standard of living she enjoyed while in marriage. The awarding of a vehicle will maintain her as she was during marriage.

Cases referred to:
1) Re L (infants) [1962] 3 ALL ER 1
2) Brixey v Lynas [1996] 2 FLR 499
3) Dart v Dart [1996] 2 FLR 286, CA
4) C v C [1997] 2 FLR 26, CA

Legislation
1) Affiliation and Maintenance of Children Act No. 55 of 1995, Chapter 64 of The Laws of Zambia
2) The Matrimonial Causes Act No. 20 of 2007 The Matrimonial Causes Act No. 20 of 2007

BIBIOGRAPHY

1) L, Mushota (2005). FAMILY LAW IN ZAMBIA: Cases and Materials. UNZA Press, The University of Zambia, Lusaka.

3) Marriage Act Chapter 50 of the laws of Zambia
4) The Matrimonial Causes Act No. 20 of 2007.
5) Affiliation and Maintenance of Children Act No. 55 of 1995, Chapter 64 of The Laws of Zambia
6) C v C [1997] 2 FLR 26, CA
7) Dart v Dart [1996] 2 FLR 286, CA
8) Fisher v Fisher [1989] 1 FLR 423, CA
9) Evans v Evans [1989] 1 FLR 351, CA
10) United Nations Convention on the Rights of the child under Article 3(1)
11) Re L (infants) [1962] 3 ALL ER 1
12) Brixey v Lynas [1996] 2 FLR 499