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5. That the consent to the marriage was obtained by fraud, deceit or duress.
6. That one party had an STI at the time of marriage
6. That one party had an STI at the time of marriage
And 7, this is interesting. That the marriage was not consumated. English law requires that there is no marriage until there is consummation. Consummation is the first sex married parties have after celebration of their union.
8. That at the time of the marriage, a party to the marriage was either pregnant by someone else, or was responsible for someone else's pregnancy.
In the above case the marriage will be null and void and for 3, 6 and 8, the complaining party shouldn't hav been aware.
In the above case the marriage will be null and void and for 3, 6 and 8, the complaining party shouldn't hav been aware.
Custody of Children:
This is a very long topic
but in a nutshell, what is important is the children's wellbeing. The question is, what serves the child best? Of course factors such as age and gender of children, and conduct of the parties will be considered.
This is a very long topic
but in a nutshell, what is important is the children's wellbeing. The question is, what serves the child best? Of course factors such as age and gender of children, and conduct of the parties will be considered.
The younger the child, the more likely that custody will be granted to the mother but this may not be the case where there is evidence that in fact the father will take care of the child better. It's never in black and white and each case is considered differently.
However, regardless of who is given physical custody of the children both parents have the right to make decisions affecting the child together and they both have the responsibility to contribute to the child's upbringing financially.
Distribution of matrimonial property:
The Constipation of Malawi allows married people to have property either as individuals or as a couple. When the marriage ends, the court looks at whether particular property is owned by an individual or the couple.
The Constipation of Malawi allows married people to have property either as individuals or as a couple. When the marriage ends, the court looks at whether particular property is owned by an individual or the couple.
If property is owned by an individual, it belongs to that person. Evidence of this is usually the name in which the property is. If, however, there is evidence that despite the naming, the intention was that the property belong to the couple jointly, it will be distributed.
Evidence of the fact that a property was meant to be owned by both parties would include financing of the property as well as conduct of the parties during the marriage. Eg, courts will usually say that a matrimonial house is the property of both despite being in the name of one.
Nevertheless, the general principle is that property in the name of one spouse belongs to that spouse.
Property which is owned by both as a couple will be distributed based on financial contribution to its purchase unless this cannot be ascertained at which point the court normally goes with 50-50.
Pre-nups and Post-nups:
Parties can enter into agreements on distribution of property in case marriage ends but these agreements are not binding on the courts. The courts however can refer to such agreements when deciding who owns what.
Parties can enter into agreements on distribution of property in case marriage ends but these agreements are not binding on the courts. The courts however can refer to such agreements when deciding who owns what.
Such agreements would only be important in guiding the court as to what exactly the parties intended when purchasing or acquiring particular property.
Miscellaneous:
A number of issues also depend on whether or not one married under chitengwa or chikamwini.
Under Chikamwini for instance, the husband has the duty to build the wife a house even though under our Constitution, the fairness of this is is being questioned.
A number of issues also depend on whether or not one married under chitengwa or chikamwini.
Under Chikamwini for instance, the husband has the duty to build the wife a house even though under our Constitution, the fairness of this is is being questioned.
Under patrlilineal systems, the children are affiliated to the father's side which means "kumudzi kwawo" is the father's side. This has no bearing on custody of children in case of divorce and after attaining majority, children have the right to choose where to belong.
In summary, we have different types of marriage depending on which type of marriage was contracted by the parties. These have different rules even though a lot of principles filter through all types.
Post Script:
These are the types of marriage:
This should have come earlier:
1. Civil marriage - what I was calling English marriage. Celebrated at a government office.
2. Customary marriage - chinkhoswe with all its formalities
3. Religious marriage -
A
These are the types of marriage:
This should have come earlier:
1. Civil marriage - what I was calling English marriage. Celebrated at a government office.
2. Customary marriage - chinkhoswe with all its formalities
3. Religious marriage -
A
And 4: a marriage by repute or permanent cohabitation -
This is where no formal marriage rites were performed but the parties have stayed together as husband and wife for at least 5 years.
This is where no formal marriage rites were performed but the parties have stayed together as husband and wife for at least 5 years.
End of thread. Questions are welcome.
