This article discusses key aspects of maintenance in family law.

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18th April 2024

Due to the nature of a marriage whether customary or statutory, it is believed that both parties to marriage intend to take care of each other and their children. As such marriage establishes legal rights and duties on both parties that either party may choose to enforce. One such right and duty is that of maintenance. By definition, it refers to what the court may decide is appropriate in hopes of helping the party who is financially weaker and dependent on the purported partner for their financial survival. Maintenance may be necessary during the marriage or after its dissolution. Top of Form


In the Zambian context there are only two types of marriages that are recognized namely; statutory and customary marriage. Under a statutory law marriage as general rule maintenance is given by any party who is financially stable to a party that is financially weak, i.e. if a woman is in a better financial position than a man, she is the one to maintain her husband. Under this type of marriage, the law does not place any direct obligation on a party to be financially responsible for maintaining the other spouse and the children of the family.

According to Section 58 of the Matrimonial Causes Act (Act No.20 of 2007), a party to a marriage that has been neglected to maintenance can make an application before the court on one of the following grounds; in the case of a husband where he has failed to provide reasonable maintenance for the applicant or proper contribution towards the reasonable maintenance for any child of the family. The same is true where the wife is the one that has willfully neglected to provide, or to make a proper contribution towards, reasonable maintenance.

Further, section 58(3) of the Matrimonial Causes Act, applies to a child of the family for whose maintenance it is reasonable in all the circumstances to expect the respondent to make a proper contribution. Where a party to a marriage who happens to be more financially stable neglect to provide financial support to a child of the family, an application may be made before the court and a maintenance order may be given. The court’s consideration of making such an order will look at the available resources and the principle of the best interest of the child 

In African customary law marriages, the issue of maintenance differs from statutory law marriages. In customary marriages, the husband is responsible for maintaining his wife and the children, unlike in statutory marriages where both spouses can be responsible for maintenance. In many cases, the wife and children are financially dependent on the husbands, and more often than not it is viewed as a sign of weakness for a man if his wife provides financial support to him and the children. The biblical notion of the man being the head of a house is strictly followed, and under customary law it entails that the man shall provide adequately for both that children and the wife.



While it is common cause that in a marriage both parties strive to ensure that they take care of each other due to the mutual love they share, this does not always seem to be the case because some marriages do not work thus parties choose to divorce. However, after the dissolution of marriage, the law on maintenance requires that spouses or children should continue to enjoy the same lifestyle that they are accustomed to.

Customary law's approach to maintenance varies depending on tribal customs. Historically, it did not provide for the support of a divorced or separated wife. Consequently, in the case of Mwiya v Mwiya (1977] Z.R 113.2), the law on marriage and divorce among the Malozi of Western Zambia stated that among the Lozi, a divorced wife is not entitled to any property or maintenance on divorce. She simply reverts to her relatives who have to look after her and her children.

However, social and economic changes have rendered this stance untenable.  Thus, in Chibwe v Chibwe (2000 ZMSC 59) The parties were married under Ushi customary law.  Upon dissolution of the marriage, the wife was entitled to reasonable maintenance and share of the property acquired during the marriage.  The action commenced in the Local Court and went up to the Supreme Court on appeal.  English authorities were applied to determine the woman’s equitable entitlements.

In terms of children, maintenance after their parents' divorce was determined by the custodial parent (Lillian Mushota, Family Law in Zambia: Cases and Materials (Lusaka: UNZA Press for the School of Law, the University of Zambia, 2005). In matrilineal societies, children typically stay with the mother after the father's death or divorce, and her family takes responsibility for their care, while the father's role diminishes. Conversely, in patrilineal cultures, the father usually retains custody, and his family assumes the welfare duties, often excluding the mother. In bilateral systems, where lineage isn't specified, children are supported by the custodial parent, and the non-custodial parent may also contribute.

Social and economic shifts have led to a modification in the maintenance of spouses and children under customary law, with local courts now empowered to issue maintenance orders. When determining maintenance for a divorced spouse, the court considers factors such as the length of the marriage, the woman's contributions to acquiring or maintaining property, and her overall contribution to the family's welfare, including domestic duties (Lillian Mushota, Family Law in Zambia: Cases and Materials (Lusaka: UNZA Press for the School of Law, the University of Zambia, 2005). Top of Form With regards to children born out of a customary marriage, the primary consideration that the court considers in determining a maintenance order is the principle of “best interest of child” rather than the custodial parent. This modification in customary law applied the principles of equity to ensure that fairness and justice is promoted.Top of Form



Section 35(1)(d) of the Local Courts Act (Chapter 29 of the Laws of Zambia) allows the court to order monthly payments for the support of a divorced spouse, considering the financial situation of both parties.

‘This support is limited to three years from the date of divorce or until the recipient remarries, whichever happens first.


The primary law governing the maintenance of a spouse and children upon dissolution of marriage in Zambia is the Matrimonial Causes Act, and the Children’s Code Act which repealed the Affiliation and Maintenance of Children Act, 1995

The Matrimonial Causes Act provides that the financially weaker party must be maintained by the former spouse in a better financial position. Thus, the order may be made in favour of a former husband or wife. This is to ensure that the former spouse continues the standard of living that they enjoyed while the marriage was subsisting. Also, the law provides for maintenance orders made in favour of children after the divorce of their parents.

Accordingly, Section 54(1) of the Matrimonial Causes Act outlines the different types of maintenance orders that the court can issue in support of a former spouse and children after a divorce. This maintenance can be in the form of periodical payments, secured periodical payments, or a lump sum payment.

With regards to the duration, Section 60 of the Matrimonial Causes Act specifies that they should not extend beyond the child's twenty-first birthday. However, Subsection (3) of the same section allows for an extension beyond the child's twenty-first birthday, up to their twenty-fifth birthday, if the child is already twenty-one or if special circumstances justify such an extension.


The Matrimonial Causes Act, which governs maintenance in Zambia, offers a comprehensive framework encompassing both the available payment methods for a former spouse and children following a divorce, as well as the factors guiding the court in issuing such orders.

Section 56(1) and (2) of the Matrimonial Causes Act neatly provides for the factors the court takes into consideration when making maintenance orders. These include; the income and financial resources of each party, their financial needs and responsibilities, the standard of living before the marriage breakdown, the duration of the marriage, any physical or mental disabilities, contributions to the family's welfare, and any benefits lost due to the dissolution of the marriage. The court aims to place the parties in a financial position similar to what they would have had if the marriage had not ended, taking into account their conduct and obligations toward each other. This principle enshrined in the aforementioned section was affirmed in the Supreme Court judgment of Xirocostas v Poma (2014 ZMSC 15) where it was held that the Court, in making a maintenance order, is expected to have regard to the income, earning capacity and other financial resources which each of the parties has. Also, in Dart v Dart (1996 2 F.L.R. 286), the court held that when considering the "needs" factor in a maintenance case, the court must objectively assess what the applicant genuinely requires to ensure it's reasonable. This assessment should consider what resources are available, the standard of living the parties are used to, their age and health, as well as less obvious factors like the length of the marriage and how it has affected the contributions and pension rights of both parties, both now and in the future.

In summary, the law governing maintenance under customary and statutory law has been crafted in a way that it achieves fair support for spouses and children during the subsistence of the marriage and after divorce. As such, the law takes into account the principles of equity and welfare of the parties involved.



The Children’s Code Act No. 12 of 2022

The Local Courts Act, Chapter 29 of the Laws of Zambia

The Matrimonial Causes Act No.20 of 2007


Chibwe v Chibwe [2000] ZMSC 59

Dart v Dart (1996) 2 F.L.R. 286

Mwiya v Mwiya [1977] Z.R 113.2

Xirocostas v Poma [2014] ZMSC 15


Lillian Mushota, Family Law in Zambia: Cases and Materials (Lusaka: UNZA Press for the School of Law, the University of Zambia, 2005) 

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 About the Authors:

Kunda Mulenga is a third year Law student at the University of Zambia. She is also the Secretary General  of Legal Aid Initiative.

Nosiku Nyambe is a Third year Law student at the University of Zambia. She is also the Chief Legal Editor at Legal Aid Initiative. 


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