Malawi

            Under Section 48, married women can keep their maiden names, use their husband’s surnames, or both, including after the dissolution of the marriage. To qualify for divorce under Section 61, the court must find the marriage can no longer function, and has “irretrievably broken down.” The court can consider factors under Section 64, such as a rape conviction, homosexual acts or other “unnatural” offenses, or cruelty. Under Section 61, no rights to consummation continue after the termination of the marriage.

All civil, customary and religious marriages under Section 12 of the Act, as long as either between a man and a woman, or cohabitation of a man and a woman as if they were married for a significant period of time, all qualify for the legal status of marriage. However, under Section 14, to qualify as having the capacity to be married under the law, the man and the woman must be older than 18 years of age, be of sound mind and not be within prohibited degrees of family relations.

Under Section 48 spouses may also deny the other spouse of their right to consummate on reasonable grounds during the course of the marriage, which include (i) poor health, (ii) recuperation from child birth, (iii) recovery from surgery, (iv) a reasonable fear that sexual intercourse is likely to cause physical or psychological injury to one or both spouses, and (v) respect for custom. Under Section 62, a husband commits rape if he has sexual intercourse with his wife without her consent during judicial separation.

The petitioner sought a dissolution of her marriage to the respondent on the grounds of cruelty and additionally sought custody of their four-year-old child. As the respondent had already admitted to beating the petitioner throughout the course of their marriage and pleaded guilty to domestic violence in a lower court, the court ordered that the couples’ marriage be dissolved.

The petitioner and respondent cross-petitioned to dissolve their marriage on the grounds of cruelty and adultery. The petitioner husband argued that he should have been granted custody of the couple’s 10-year-old daughter since the respondent wife treated him with cruelty on multiple occasions by exposing him naked in public and depriving him of his conjugal rights while alleging that he was HIV positive and demanding that he get tested. The petitioner additionally alleged that the respondent deserted the matrimonial home for no good reason and took marital property with her.

The landmark case stating that a married woman may, during the course of her marriage, acquire property independent of her husband. As long as the wife carries the burden of proof of showing that the property was purchased or received independently, she may own any property independent of her husband during the marriage, and will continue to own it independently after a divorce. The plaintiff was the daughter of the deceased and the defendant was the husband of the deceased. The deceased and the defendant had children, who were in the custody of the plaintiff.

The Supreme Court of Appeal heard an appeal over property rights and division of matrimonial property that occurred during a polygamous marriage, when a wife evicted the fourth wife and her children from the property after the death of the husband. Use of a matrimonial home by one wife did not mean the wife had property rights over the home, according to the court; proof of joint ownership is required for a wife to acquire the property after the death of her husband.

The appellant challenged his concurrent sentences for six violations of the Trafficking in Persons Act as manifestly excessive. The sentences ranged from 10-14 years of imprisonment including hard labor.

The defendant employed the plaintiff as a librarian in 1995, but dismissed her from her position in 2000 because she married a polygamist. The plaintiff challenged the dismissal as unfair and asked for an order that her former employer, the defendant, pay compensation and long service pay. In siding with the plaintiff, the Court considered the anti-discrimination provisions of the Constitution, given that the facts underlying the offence took place prior to the Employment Act coming into effect.

The respondent employed the applicant on a fixed term contract as a data entry clerk. The applicant’s contract term was four years expiring on January 10, 2005. However, the respondent terminated her on December 22, 2003. The reason given for her termination was that she had become pregnant out of wedlock. The applicant challenged the dismissal and took legal action against the respondent. The respondent conceded that the reason for termination was invalid and asked the court to decide on a remedy. The applicant asked for reinstatement as the remedy.