Muyamwa v Muyamwa (1975/HP/D/65) [1976] ZMHC 5 (27 May 1976)

MUYAMWA v MUYAMWA (1976) ZR 146 (HC) HIGH COURT (DIVORCE JURISDICTION) CULLINAN J 27th MAY 1976 No. 1975/HP/D/65 Flynote Family 30 law - Marriage of minor - Attendance of mother as witness - Implied ■ consent. Family law - Marriage of minor aged sixteen years - Absence of written parental consent - Validity - Marriage Act, Cap. 211, s. 17. Family law - Marriage - Evidence of a ceremony of marriage followed by 35 cohabitation - Presumption of validity. ■ Headnote The parties to the marriage went through a form of ceremony of marriage before a Registrar at the Lusaka Boma. Thereafter the parties cohabited for about six years and three children were born to the marriage. The parties testified that shortly before the ceremony at the Boma they 40 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. Neither party ■ 1976 ZR p147 CULLINAN J gave notice of the intended marriage on the prescribed form to the Registrar as required by section 6 of the Act. Further, the Registrar did not apparently issue any certificate under section 10 of the Act. Two witnesses attended the ceremony at the Boma, one of them being the petitioner's mother. The petitioner prayed for a declaratory decree I of 5 nullity. Held: (i) The petitioner's mother by her attendance as a witness at the ceremony can be taken to I have impliedly consented to the marriage. 10 (ii) Section 17 of the Marriage Act, Cap. 211, does not provide that marriage without prior written parental consent shall be void and the marriage of a minor aged sixteen years without such written consent, whether or not actual consent can be implied and other I considerations apart, is a valid marriage. 15 (iii) The ceremony in this case as a ceremony of marriage was perfectly valid. (iv) 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, 20 in the absence of decision evidence to the contrary, even though it may be necessary to presume the ground of a special licence. ■ Cases cited: (1) Siwo v Siwo (1970) SJZ 148. I (2) Balfour v Carpenter (1810) 1 Phillim 204 and 221. 25 (3) The King v The Inhabitants of Birmingham (1828) 8 B. & C. 29. (4) Catterall v Sweetman (1845) 1 Rob. ECC 304; 163 ER 1047 at p. 1051. (5) Chichester v Mure (1863) 3 S. W.& T. R 223; ER 164 1259. I (6) Collett v Collett (1967) 2 All ER 426. 30 (7) Dormer v Williams (1838) 1 Curt 870; ER 163; 301. (8) Tongue v Tongue 1 Moo P. C. 88; 12 ER 745. (9) Greaves v Greaves (1872) LR 2 P. & D. 423. I (10) Dinizulu v Attorney-General and Registrar -General 1958, 3 All ER 555. 35 (11) Mahadervan v Mahadervan (1962) 3 All ER 1108 at p. 1116. (12) Piers v Piers (1849) 9 ER 1118. Legislation referred to: Marriage Act, Cap. 211, ss. 6, 10, 12, 17, 26, 29, 30, 31, 32 (2). I Marriage Act, 1949 (England), s. 61. 40 N R Fernando, Jaques and, Partners, for the petitioner. A R Lawrence, Peter Cobbett - Tribe & Co., for the respondent. 1976 ZR p148 I ■ ■ ■ CULLINAN J Judgment Cullinan J: The petitioner prays for a declaratory decree of nullity. The parties to the marriage went through a form of ceremony of marriage before a Registrar at the Lusaka Boma on 29th November 5 1968. Thereafter the parties cohabited up to 1974 and three children were born to the marriage. 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 10 her mother to the marriage, as required by section 17 of the Marriage Act, Cap. 211; neither party gave notice of the intended marriage on the prescribed form to the Registrar as required by section 6 of the Act; further, the Registrar did not apparently issue any certificate under section 10 of the Act. Two 15 witnesses attended the ceremony at the Boma, one of them being the petitioner's mother. The petitioner recalled that the ceremony took place at mid - morning; the Registrar advised them that it was a solemn occasion and asked them if they wished to take one another in matrimony and they both answered in the affirmative; the respondent 20 placed a ring on her finger and the Registrar pronounced them man and wife. Thereafter the certificate of marriage was signed by the parties and witnesses, the duplicate being transmitted by the Registrar to the Registrar -General. The latter filed and registered the particulars of the certificate of marriage in the Marriage Register Book as provided by section 25 29 of the Act. The petitioner testified that the respondent had gone to the Boma the day before the marriage and returned and told her that she would have to obtain her mother's consent. She felt that the mother's attendance at the ceremony as a witness would be sufficient to indicate such consent. 30 As far as she was concerned she didn't know that notice of intended marriage had to be given or that she had to secure certificate from the Registrar in the matter. She testified, "We had to swear something after the Registrar and we signed something . . . It was on some official book at the Boma." This may well be a reference to the marriage ceremony 35 itself rather than the swearing of an affidavit ■ required by section 10 of the Act. No trace of any document connected with the marriage other than the triplicate marriage certificate was ever subsequently found at the Registrar's office. The respondent testified that although he knew that the date of 40 birth of the petitioner was the 11th December, 1949, he hadn't calculated her age. To the best of his knowledge "there were no banns published". As far as he was concerned they had been married under customary law beforehand, lobola having been paid. He was not really interested in the procedure at the Boma the petitioner taking leading role in arranging 45 "the whole thing". "I believed what we were doing was an extension of lobola payment", he said, and again, "I went to the Boma to publicise the fact that I was married." He was not aware that he was going through ■ ■ ■ ■ CULLINAN J any ceremony of marriage. Nonetheless he recalls being nervous. He recalled the appearance but not the name of the Registrar. He could not remember him pronouncing 1976 ZR p149 any words of the ceremony of marriage. He did remember signing a document but "It I could have been a visitors' book", he said. 5 The Registrar -General testified that the particular Registrar had since left the country. The respondent had apparently made application for the issue of a marriage certificate in April, 1974, and as a result of such application the above - mentioned defects were discovered. Both parties had spoken to the Registrar -General. In this respect he I testified: 10 "The respondent said he was about to go and the petitioner and her relatives said they were not going to wait ■ the twenty - one days and they approached the District Secretary (Registrar) who waived these conditions. The petitioner confirmed the story because I asked what Mr Muyamwa had said . . . They said both parties 15approached the District Secretary.'' That evidence was not contested. The respondent's evidence as it stands is unrealistic. I find it hard to appreciate how he could possibly have gone through a ceremony of marriage without appreciating the nature of the ceremony and the solemnity of the occasion. The evidence 20 of the Registrar -General and the petitioner indicates that both parties were aware of the requirements of parental consent and the giving of notice at least twenty - one days in advance. Though the respondent may not, on his own evidence, have been an enthusiastic participant in the ceremony at the Boma, I find nonetheless that he was well aware that he 25 was participating in a ceremony of marriage and acquiesced in the matter. Section 32 (2) of the Marriage Act in part reads as follows: ■ ■ "(2) A marriage shall be null and void if both parties knowingly and wilfully acquiesce in its solemnisation - . . . (c) without 30 the Registrar's certificate of notice or special licence having been duly issued;" ■ The above subsection was considered by Doyle, C. J., in the case of Siwo v Siwo 1970 S. J. Z, 148 at p.152. In that case the parties were married 35 by a licensed minister in a licensed church after banns and according to the rites of the church concerned, but without the prior issue of the Registrar's certificate of notice. Doyle, C. J., held that the wife was unaware that the Registrar's certificate had not been obtained or that one was necessary: the marriage was therefore not invalidated by the Marriage Act. The facts 40 of the present case are further complicated than those of Siwo inasmuch as the petitioner married without the prior written consent of her mother and both parties were aware that notice had to be published. It seems to me that the petitioner's mother by her attendance as a witness at the ceremony can be taken to have impliedly consented to the marriage. Nonetheless section 17 45 of the Marriage Act reads as follows: ■ ■ ■ 1976 ZR p150 CULLINAN J "17. If either party to an intended marriage, not being a widower or widow, is under twenty - one years of age, the written consent of the father, or if he be dead or of unsound mind or absent from Zambia, of the mother, or if both be dead or of unsound mind or 5 absent from Zambia, of the guardian of such party shall be produced and shall be annexed to the affidavit required under sections ten and twelve and, save as is otherwise provided in section nineteen, no special licence shall be granted or certificate issued without the production of such consent." In 10 the case of Balfour v Carpenter 1810 1 Phillim 204 and 221; ER 161 961 and 966 Sir John Nicoll in declaring the marriage of a minor aged 19 years without consent to be null and void observed: ■ I "The act of Parliament declares the marriage of a minor null and void without the previous consent of the father." That 15 case however was decided on the relevant legislation at the time. The case of The King v The Inhabitants of Birmingham 1828 8 B. & C. 29; ER 108 954 concerned the provisions of section 16 of the Marriage Act of 1823, which read: ■ ".... the father, if living, of any party under twenty - one years of 20 age (such party not being a widower or widow), or if the father shall be dead, the guardian or guardians, shall have authority to give consent to the marriage of such party; and such consent is hereby required for the marriage of such party so under age, unless there shall be no person authorised to give such consent." In 25 considering those provisions Lord Tenterden, C. J., observed: ■ "The language of this section is merely to require consent, it does not proceed to make the marriage void, if solemnised without consent. Then the twenty - second section declares, that certain marriages shall be null and void, and a marriage by licence without 30 consent is not specified." ■ ■ In the case of Catteral v Sweetman 1845 1 Rob. ECC 304; 163 ER, 1047 at p.1051 Dr Lushington referred to Birmingham with approval. He observed (at p.1052): "From this examination I draw two conclusions: 1st. That, so far 35 as my research extends, it appears that there never has been a decision that any words in a statute as to marriage, though prohibitory and negative, have been held to infer a nullity, unless that nullity was declared in the act. 2nd. That, viewing the successive Marriage Acts, it appears that prohibitory words, without 40 declaration of nullity, were not considered by the Legislature as creating a nullity, and that this is a legislative interpretation of acts relative to marriage." The judgment in the case of Chichester v Mure 1863 3 S. W. & T. R 223; ER 164 1259 at p. 1263 in its reference to the case of Birmingham 45 reads: ■ ■ ■ 1976 ZR p151 CULLINAN J "There was there no previous impediment creating an incapacity to contract at all. There were no words in I ■ section 16 of the [Marriage Act of 1823] applicable to the question then under consideration; there were not even prohibitory words. The case depended on the 16th section (construed with reference to other 5 sections in the statute), and the 16th section merely required a consent, and that requirement was held to be directory only." Section 33 (1) of the Marriage Act quite clearly provides that the marriage of a minor under the age of sixteen years shall be void, except where on application a judge of the High Court gives his consent to the 10 marriage. The words of section 17 of the Marriage Act are partly directory. They are prohibitory to the extent that they prohibit the issue of a Registrar's certificate of notice or a special licence without the written parental consent being annexed to the affidavit specified in sections 10 and 12. Section 17 however does not provide that marriage without prior 15 written consent shall be void and, as I see it, ■ the marriage of a minor aged sixteen years without such written consent, whether or not actual consent can be implied and other considerations apart, is a valid marriage. However, as a Registrar cannot issue a certificate of notice, or an authorised officer a special licence to a minor without written consent 20 being obtained, the marriage of a minor without such consent can only be Solemnised "without the Registrar's certificate of notice or special licence having been duly issued"; which brings us back to the provisions of section .32 (2). In the case of Collett v Collett 1967 2 All ER 426 a marriage took 25 place in a British Consulate which was invalid by the lex loci contractus. The marriage depended for its validity on the Foreign Marriage Act, 1892. The provisions of that Act were not complied with however, in that no notice was filed or registered, the consent of the wife's parents to her marriage as a minor was not obtained or dispensed with, no oath was taken 30 and ■ the marriage itself was not registered. After reviewing the authorities Ormrod, J., observed (at p. 431 at d): ■ ■ "In my judgment, the principle which emerges from the corpus of legislation regulating the formation of marriages in England and from the reported cases arising therefrom is that, if a ceremony of 35 marriage has actually taken place which, as a ceremony, would be sufficient to constitute a valid marriage, the courts will hold the marriage valid unless constrained by express statutory enactment to hold otherwise. This is consistent with the traditional concept, both of the common law and of the canon law, that the essence of 40 marriage is the formal exchange of voluntary consents to take one another for husband and wife." Ormrod, J., refused a decree of nullity on the grounds that the mandatory provisions of section 8 of the 1892 Act regarding the solemnisation of the actual ceremony of marriage had been complied with, "whereas the other 45 sections to which I have referred are essentially administrative or procedural and are directory rather than mandatory in nature". It appears ■ ■ ■ 1976 ZR p152 CULLINAN J however that the learned judge was not " constrained by express statutory enactment" similar to the provisions of section 32 of the Marriage Act. In the case of Dormer v Williams 1838 1 Curt 870; ER 163 301 at 303, which turned on the partly similar I provisions of section 22 of the Marriage Act 5 1823, a marriage under a licence issued by a person having no authority to grant the same, the wife being unaware of the illegality of the licence, was held to be valid. Dr Lushington in the course of his judgment observed that in order to render a marriage null and void both parties "must have willfully intended to disregard and defeat the law", and further on in his 10 judgment: "By the present act in order to render a marriage null and void both the parties to the marriage must have ■ willfully violated the Act with the full knowledge of the consequences"; I And again (at p.304): 15 "In Tongue v Tongue 1 Moo. P. C. 88; 12 ER 745 the Judicial Committee were agreed that there must be evidence to establish a disregard of the law knowingly and willfully by both parties." In the case of Greaves v Greaves 1872 LR 2 P. & D. 423, which also turned on the 1823 provisions, Lord Penzance held a marriage celebrated 20 before a licensed minister ■ without licence was valid, as the wife at the time of marriage was unaware that the licence had not issued. The judgment reads (at p. 424): "The parties in this case did not doubt intermarry without a licence first had and obtained; but the question is, ■ ■ whether they did so 25 knowingly and willfully. I understand the meaning of this provision to be that the marriage is only to be annulled if it is established affirmatively to the satisfaction of the Court, that at the time when the ceremony was solemnised both parties were cognizant of the fact that a licence had not issued, and being cognizant of that fact 30 willfully intermarried. It may be a question whether, if either party was not aware that a licence was necessary, although cognizant of the fact that there was no licence, he or she could be considered to have 'willfully' intermarried without licence. It may be argued that it is not an unfair interpretation of the statute that, in order to 35 bring a marriage without a licence within the scope of its provisions, both parties must be aware that a licence is a necessary formality, besides being aware that no licence is in existence." I agree with the latter interpretation when applied to section 32 (2) of the Marriage Act. In Greaves a vicar told the respondent husband that 40 "there would not be time to get a licence by the next morning, but the marriage need not be put off, and he would marry them and take the risk"; it seems to me that the observations made by Dr Lushington in Dormer v Williams at p. 304 could well be applied to the present case: ■ ■ "the surrogate, who granted it [the licence], must have been 45 ignorant or grossly negligent of the duty he had to perform . . . here is a clergyman . . . who ought to have read, and who must; have ■ CULLINAN J read, the licence, who, in neglect of his duty or in ignorance of the law, celebrated this marriage in virtue of a 1976 ZR p153 I ■ licence which on the face of it, was no authority at all." I find that I can more readily appreciate that a licensed minister might be in ignorance of the requirement of the issue of the Registrar's certificate 5 of notice before marriage, than that the Registrar himself could be so ignorant. The marriage certificate is before me, that is, a copy of the entry in the Marriage Register Book maintained by the Registrar -General. The document is endorsed "Not certified as a true copy. Ceremony defective 10 to the knowledge of both parties" and is signed by the Registrar-General; the back thereof contains further signed endorsements touching upon the validity of the marriage. As I see it, section 29 of the Marriage Act clearly indicates that the Registrar -General is obliged to register "all certificates which shall be transmitted to him" in the Marriage Register Book, to 15 allow searches therein and to give certified copies therefrom. Section 30 allows correction only of clerical errors in a marriage certificate filed in his office and in the Marriage Register Book "upon production to him of the certificate delivered to the parties". I do not see that the section would cover an endorsement in the margin reflecting any possible invalidity - see 20 e.g. Dinizulu v Attorney-General and Registrar -General 1958 3 All ER 555 at p. 556 where Paull, J., dealt with the wider provisions of section 61 of the Marriage Act, 1949, which cover errors in "form or substance". The Registrar -General has in fact testified that the document before me, apart from the extraneous endorsements on the front and the back thereof, which 25 I assume are not to be found in the Marriage Register Book, is in fact a true copy of an entry in that book. The certificate is therefore under section 31 admissible as evidence of the marriage and of the marriage ceremony itself. There is no evidence before me that the ceremony did not comply with the provisions of section 26 of the Act and the prescribed procedure: 30 omnia praesumuntur rite esse acta Maherdevan v Maherdevan 1962 3 All ER 1108 at p. 1116. I am satisfied therefore that the ceremony as a ceremony of marriage was perfectly valid: Sir Jocelyn Simon, P., in the case of Mahadervan referred to the following extract I from Halsbury's Laws 3 Ed. 19 p. 813: 35 ■ ■ ■ ■ "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." Authority 40 for that statement is found in the case of Piers v Piers 1849 9 ER 1118. It seems however that the presumption as to the grant of a special licence was supported ■ by the particular facts of that case, notably that the marriage was solemnised before a clergyman in a private house, even though no trace of such licence could be found and the Bishop of the 45 diocese many years later testified he could not recollect granting such licence. In the present case the fact that there is no record of the grant of ■ 1976 ZR p154 ■ CULLINAN J any special licence is not sufficient: the evidence however shows that the parties approached the District Secretary and not an authorised officer in an effort to overcome their difficulties: I consider that evidence to be sufficient to rebut such presumption. I I 5 am satisfied as I have said that both parties were aware of the requirement of notice and parental consent. While I do not accept the respondent's evidence that he was "just not interested", I do accept his evidence that he was "not aware that I was going through any ceremony of marriage which was null and void". The petitioner testified "I intended 10 to get married and get married permanently . . . As far as I was concerned I didn't know I had to get the Registrar's certificate." The fact that the parties were aware that they had to wait some twenty - one days after notice and that parental consent was necessary does not necessarily establish that either of them was aware that the Registrar's certificate of 15 notice must issue before marriage. It seems to me that neither party willfully intended to disregard and defeat the law as the petitioner's mother attended the ceremony as a witness and they had approached the Registrar who had "waived these conditions": I cannot see that a young couple faced by a middle - aged Registrar would have such a detailed knowledge of 20 the Marriage Act that they must have known that the latter had no power to do so. I am not satisfied that the petitioner or indeed the respondent knowingly and willfully acquiesced in the solemnisation of marriage without the Registrar's certificate of notice having been duly issued. I 25 accordingly dismiss the prayer for a decree of nullity. Decree of nullity not granted ■ ■ ■ 1976 ZR p154