The main aim of this paper is to compare and contrast parental rights and obligations towards their children at customary law and statutory law in Malawi.

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  1. INTRODUCTION

The main aim of this paper is to compare and contrast parental rights and obligations towards their children at customary law and statutory law in Malawi. We will therefore look at the parental rights and obligations under statutory law marriages and under customary law marriages.  Statutory law marriages are those marriages that are contracted under in accordance with statutory law; such as the Marriage Act.  On the other hand, customary law marriages are a form of marriage contracted under customary law. Customary law marriages are either patrilineal or matrilineal in nature. Matrilineal marriages are those marriages that are arranged in accordance with the matrilineal customary law. Under the matrilineal customary law for there to be a valid marriage, there should be a meeting of the marriage advocates or ankhoswe for either spouse. The matrilineal system of customary law is widely practiced in the southern and central regions of this country except in the northern part of Kasungu, Nkhotakota, Chikwawa and Nsanje districts. On the other hand, patrilineal marriages arranged in accordance with the patrilineal system of law. Under this system, there is a need for payment of bride price or lobola to validate the marriage. The patrilineal system is widely practiced in all the districts of the northern region, in Nsanje Chikwawa, northern part of Kasungu and Nkhotakota districts.

Parental obligations are all duties, powers and responsibilities a parent of a child has in relation to the child. Parental rights are a sum total of the rights of the parent or parents in and to the parent or parents.

A child is defined in a number of ways under Malawian law. Under the Constitution , a child has been defined as a person less than sixteen years of age. Under the Children and Young Persons Act, a child is any person under the age of fourteen years. Under the Adoption of Children Act,  a child is defined as a person less than twenty years of age. On the other hand, the Employment of Women and Children Act  defines a child as any person below the age of twelve. On the international plane the United Nations Convention on The Rights Of The Child, 1989 which Malawi ratified in 1992 defines a child as a person under eighteen years. However, since the Constitution provides that the Constitution is the supreme law in this country and as such all other statutes and laws are subject to it, the constitutional definitions of the child in Malawi. Hence, the child is any person under sixteen years. Further, the legitimate child is a child born in a lawful and valid wedlock while an illegitimate child is a child born outside lawful wedlock.

Under Malawian circumstances, a parent is the natural father or mother, or an adoptive father or mother, or a putative blood father of an illegitimate child.

Before making a thorough comparison of the parental rights and obligations towards their children at customary law and statutory law in Malawi, we will look at the relevance of custody of children, the relevance of affiliation of children and the rights and obligation the parents have towards their adopted children.

2. THE RELEVANCE OF CUSTODY OF CHILDREN

The word custody has two, meanings. In the wide sense it means the ‘bundle of powers’ exercisable over the child. This is synonymous with the expression ‘parental rights.’

Thus a person who has custody of a child, does not only keep the child in his care, but can give consent to surgery, determine the child’s religion and so on. In it’s restricted meaning, custody means ‘care and control’ of the child. The court might split up parental rights. This apparently would mean that the right to physical possession would be granted to the parent given’ care and control’ of the child, but all the other parental rights are vested in the other parent whose consent would be necessary to a change of schooling, to surgery and so on. This dual aspect of the meaning of custody was emphasized in the case of Hewer v Bryant.   In that case, the question was whether the plaintiff was in the custody of his father at the time, he was fifteen years old and was sent to a residential farm-training center where he received his keep and wages. The court held that he was not in the custody of his father at the time. Sachs LJ said,

            “in its wider meaning, the word , ‘custody’ is used as if it were almost

 the equivalent of guardianship in the fullest sense …Adapting the convenient       phraseology of counsel, such guardianship embraces a “bundle of rights” or

to be more exact a “bundle of powers,” which continue until a male attains 18

or a female infant marries. These include the power to control education, the choice of religion, and the administration of the infant’s property. These include entitlement to veto the issue of a passport and to withhold consent to marriage.

They include also both the personal power physically to control the infant until the years of discretion and the tight to apply to the courts to exercise the powers of the crown as parens patriae. It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, namely such personal power of physical control as a parent or guardian may have.”

In this paper, custody connotes the whole bundle of rights and powers vested in a parent exercisable over a child. The question of who is to have the custody of a child may be decided in matrimonial proceedings for divorce, nullity, or judicial separation.

CUSTODY AT CUSTOMARY LAW IN MALAWI

In matrilineal marriages, the father of legitimate children is not entitled to the custody of the children. The custody of the children is granted to the mother. In Mkandawire v Mkandawire, the marriage between the parties was contracted in accordance with the matrilineal system of the central region. The wife was granted a decree of divorce because her husband had treated her with cruelty. The National Traditional Appeal court dismissed the husband’s claim to have the custody of the children. The court stated that,

                 “on the question of the children … this marriage was contracted under

                   the customary law of Lilongwe (central region) and it is a matrilineal

                   society. The custody of the children is always granted to the mother.”

Dr. J.O. Ibik  writing about the Chewa matrilineal society in his book said,

“the husband is not entitled to the custody of the children, although he    may determine their education and training with the consent of their maternal father.”

This is in support of the fact that in matrilineal societies, the husband is not entitled to the custody of children.

However, the husband may have custody of the children if the wife so permits or if the maternal uncle gives consent. To that effect is the case of Kasasi v Bakaimaniwhere the putative father of an illegitimate child wanted the child to be affiliated to his clan. The relevant customary law was that of matrilineal system in the southern region. The court held that the father was not entitled to the custody of the child, unless the mother or the maternal uncle of the children allowed him.

Custody of illegitimate children is granted to the wife.

On the other hand, in patrilineal marriages, the general rule is that the custody of legitimate children is given to the father, subject to local variation. To this effect, is the case of Mwakasula v Moyo, where after the dissolution of the marriage in favour of the respondent wife, a marriage that had been contracted in accordance with the patrilineal system of law, the court ordered that the appellant should lose both the children and the dowry he may have paid towards the marriage. The National Traditional appeal Court allowed the appeal and found it justifiable to grant the custody of the children to the husband.

However, in Mzimba and Karonga districts, the party responsible for the breakdown of the marriage loses custody of the children. In the case of Nyalongwe v Lungu,the parties had contracted a marriage in accordance with the patrilineal system of Mzimba.The lower court granted a decree of divorce to Mr. Lungu on the flimsy reasons that his wife had privately gone to seek some African medicine; that the wife had an unexplainable cut on her neck and that she had locked her mother outside the house. On the wife’s appeal to the National Traditional Court, the lower court’s judgment was set aside on the ground that the respondent was the one divorcing his wife because of her lack of education and the wife was ordered to return to her matrimonial home. In delivering its judgment, the court held that the lower court had erred grossly when it awarded dowry to the appellant but gave custody of the five children of the marriage to the respondent. Because the custom in Mzimba is that, the party who is found to be at fault in a case of divorce loses both the dowry and the children. The mother has the custody of the children, incase of illegitimate children, because there is no marriage between the cohabiting parties.

CUSTODY AT STATUTORY LAW

As regards marriages celebrated under the Marriage Act, the Divorce Act provides that,    

“on suits for dissolution of marriage or for nullity of marriage, or judicial separation, the court may at any stage of the proceedings, or after a decree absolute has been pronounced, make such orders as if thinks fit and may from time to time vary or discharge the said orders with respect to custody, maintenance and education of the minor children of the marriage….”

This in effect means that it is the duty of the court to make such orders relating to the custody of the children of the dissolved marriage, or of a marriage which has been nullified or of a marriage to which the parties have separated. When making such orders, the court has to bear in mind the best interests of the child.To this effect is the case of Chitaukire v Chitaukire,where the applicant and the respondent were married in Rhodesia where they lived for six years.

They had two children who were at the time of the application, eight years old and five years old respectively. The respondent, who was a Malawi national, left the applicant and returned to Malawi bringing the children with her. The applicant duly obtained a divorce in the District Commissioner’s court in Salisbury, in the absence of the respondent and was awarded the custody of children. The applicant made an application for the custody of his two children.

The High Court held that although it must bear in mind the principle that a party at fault should not necessarily be allowed to profit from his own wrong- and it appeared that the respondent had wrongfully removed the children from their father and their father’s country- the children’s welfare, being the paramount consideration, required that custody be granted to the respondent. The court found that the children had lived all their lives with the respondent or her relatives and were reasonably happy in their environment and that they had adapted their lives to conditions in Malawi, including changing their language to Chichewa. Further, the Married Women (Maintenance Act) provides that the court to which an application under that Act is made may make an order providing that…the legal custody of any children of the marriage between the applicant and her husband, while under the sixteen years, be committed to the applicant.  This provision is in line with the requirement that before granting custody the court should have in mind the welfare of the child.  This is so because the mother is in a better position to take care of the child.  

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As regards the custody o illegitimate children, the Affiliation Act provides that where ‘an order has been made under that act against the putative father for payments in respect of a child, the court may at the time of making such order or from time to time thereafter, appoint some other person other than the mother to have the custody of the child if the court is satisfied that the mother is not a fit and proper person to have the custody of such a child or if the mother dies or becomes of unsound mind or is in prison ...

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