CONFLICT OF LAWS IN BILATERAL MARRIAGES THAT FUSE STATUTORY LAW AND NGONI CUSTOMARY LAW IN ZAMBIA: THE NEED TO ADDRESS THE CONUNDRUM

Abstract

This article focuses on the conundrum attendant to the strict application of duality of laws in bilateral marriages. Important to state, on the outset, is that marriage in Zambia can only be legally contracted under either customary law, or statutory law. The law does not require the fusion of both laws to contract a valid marriage. The status quo notwithstanding, research conducted on point has established that a number of marriages in Zambia combine both laws so that these marriages are valid under both laws. These laws are simultaneously applied when contracting marriage so that it cannot be argued such are converted marriages. These marriages are herein referred to as bilateral marriages. While the challenges of duality in bilateral marriages abound, this article focuses on the conundrum relating to child custody and property settlement. It also endeavours to illuminate the courts’ complicity to the prevailing challenges and suggests ways to address the problems existent in bilateral marriages. The research conducted on the subject was qualitative. The doctrinal methodology was mainly adopted because of the need to conduct an in depth analysis of the meta-data, judicial decisions, archival documents, journal articles, books, the Constitution and statutes. The research also involved interviews with key informants. The methodology was preferred because of its flexibility to intellectual understanding of legal intricacies both substantively and procedurally more so that the study was ‘in law’ not about law. The law subjects of this discussion are Ngoni customary law, and statutory law. Research findings established that, bilateral marriages stem from duality. The motivation for bilateral marriages is that it tends to provide a safe haven for monogamy while still allowing parties to quench their thirst for their culture. The continuous existence of duality has largely been due to its seemingly anodyne nature on society, and the judicature’s lackadaisical and incongruent approach to customary related matters. Anchored on the natural theory of acceptable standards of a legal system, this article argues that the conflict of laws existent in bilateral marriages clogs the legal principles of regularity, certainty and casts aspersion on the intelligibility of the Zambia legal system vis-à-vis marriage. The proliferation of bilateral marriages thus beckons the legal profession to critically focus on the laws regulating marriage in Zambia so as to address the exiting challenges.