Muyamwa v Muyamwa (1976) Z.R. 146 (H.C.)

Facts

The petitioner and respondent went through a form of ceremony of marriage before a Registrar at the Lusaka Boma on 29th November 1968. Thereafter the parties cohabited up to 1974 and had three children. The parties testified that shortly before the ceremony at the Boma they had been married by customary law. The petitioner was then aged 18 years and the respondent aged 23 years. The petitioner’s father was dead and she did not have the written consent of her mother to the marriage, as required by section 17 of the Marriage Act, Cap. 211. Nevertheless, the mother attended the marriage and there was a question as to whether that amounted to implied consent of a parent. Neither party gave notice of the intended marriage on the prescribed form to the Registrar as required by section 6 of the Act; furthermore, the Registrar did not apparently issue any certificate under section 10 of the Act.

Issue

Whether there was a valid marriage between the petitioner and respondent in light of these facts

Held

The court held that there was a valid marriage because neither party willfully intended to disregard and defeat the law as the petitioner’s mother attended the ceremony as a witness. Cullinan J also opined that the Mother’s attendance to the wedding could be taken as an implied consent to the marriage. Furthermore, neither party willfully or knowingly acquiesced in its solemnization without the Registrar’s certificate of notice having been duly issued. Therefore, the reasoning in holding of Siwo v Siwo was upheld and the marriage declared valid. Accordingly, the Decree of Nullity was not granted.

Commentary

This case seems to have followed in the footsteps of the holding behind Siwo v Siwo. However, on delivering Judgment, Cullinan J said that the difference between the two cases is that in this case, the prior written consent of a parent was an issue. Also in Siwo v Siwo, there were no issues arising from a presumption of marriage.

Speaking a little bit more on that, Cullinan J quoted Sir Jocelyn Simon, P., in the case of Mahadervan (extract from Halsbury’s Laws 3 Ed. 19 p. 813) where he said that, “Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary, even though it may be necessary to presume the grant of a special licence.” This part of the Judgment seems to have been overturned by the reasoning of holding in the case of Mafemba v Sitali.

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