Learning notes on family law in tanzania

family law

Includes law of ‘marriage of succession and inheritance, it deals with how people enter into marital contract as per the Law of Marriage Act of 1971.  Law of succession i.e. Islamic law of succession; customary law of succession statutory law of succession.

Marriage is defined under the law of marriage Act s.9 as ‘a voluntary union of man and woman intended to last for their joint lives;

Therefore, there could be no temporary marriage. Monogamous marriage is the union of one man and one woman. In exclusion of all others. S.9 (b) i.e. marriage under Christian religion.

Qn. Hyde vs. Hyde P&D 133

Polygomamous marriage is a union which a husband my have more than one woman. S.59 (3)

Polyandry is where woman get married to more than one man and it is very rare to African societies.

Marriage is Gods plan since if it were so there could be no peace in this world.

The right to found a family among the fundamental human right.

Marriage during pre independence people.

Nature and modes.

Customary type of marriage. Obbi defined customary marriage as union of man and women for the duration of the women’s life being normally the first of a wider association between two families or sets of families

Characteristics of a customary marriage.

1.     Protection of children and extension of kinship.

2.  Profound interest and involvement of the families and contracting facts in arrangement in affecting such marriage.

3.    Marriage payment i.e. bride price, wealth e.t.c. this no conducted in patrilinear society.

4.     One sided exclusively sexual right of the husband on respect of the wife, [most of customary marriage are polygamous].

PRE CAPITALIST AFRICAN MARRIAGES

-         to marry a woman was like to add source of labor

-         more children more  wealthy as they provide labor and girls are marriage to add wealthy

-         marriage from wideness

-   More were endogamy in nature (marriage among the family members latter changed to exogamy. ( from other families)

-         concept of bride price came into place

-         S.14 no one shall marry his relative i.e. mother, wife, sister, etc.

RATIONALE FOR BRIDE PRICE;

-         this was paid to legitimate child

-         Bride price enable husband to have some rights from wife and other authorities i.e. .sexual rights, kissing, hugging e.t.c.

-         rights over children

Note; even if wife conceived from another man that child belong to the husband.

Case; Amina Rashid vs. Ramadhani

Held; children born out of marriage belongs to maternal father. 

 CEREMONY OF MARRIAGE UNDER PRE- CAPITALIST

-         A marriage without ceremony was invalid

-         The whole village would participate

-         Nature of marriage contracted was not of two people

-         Family participates in contributing bride price bringing food for ceremony. Most ceremonies were after harvest.

-      Where a wife could not bare children a husband can marry another wife and once the first wife conceive the children will belong to the second wife and her husband.

TYPES OF CUSTOMARY AFRICAN MARRIAGES

1.     Polygamous type. There are two forms polygamy and poligamic 

Polygamy where a man has more than one wife at the sometime

          Polyandry where a woman has more than one husband at a time.

Importance of polygamy.

-         enable the man to have more labor power

-         enable man to have many children

-         provide biological rational

2.     Leviratic marriage; happen where the husband died and leave the woman so young in the name of deceased brother. The children belong to the deceased husband. She was to accept to be married otherwise the bride price is to be returned. If she don’t want to be married. She has to remain in family as independent member of the family but no need to returning the bride price. The married on return of bride price.

3.     Ghost marriage. Happen where the husband died before attaining the marriage age. The family will choose a man to marry and bare children in his name. Rationale behind is that the family don’t want to loose the name of the decease

4.     Serorate. This kind of marriage were another woman is provided by the parents of the barren or deceased wife to there children for the husband or widower, to sustain kinship.

“Worry in the family matters”

  FORMS OF THE SOCIETIES

              PATRILINEAL SOCIETY AND MARTRILINEAL SOCIETIES.

PATRILIANEAL SOCIETY is the one where a husband plays a predominant part as far as the home is concerned. It is the rule of the father. In this case the husband plays a predominant role in the family in Tanzania this type of the society forms 80% of the families, in England for instance till the year 1992 woman had no say to her husband for instance the husband was free to demand sexual intercourse from the his wife at any time wherever he want.  As in R vs. R [1992] Ac 559. Also it the right of the husband to beat his wife with out counter resistance.  I.e. to chastises. It was the position in Tanzania also prior to enactment of the marriage act. In which the action is the criminal one as provided for under Section 66 of the Law of Marriage Act.

MATRILINIAL SOCIETY  as opposed to patrilianeal society are the ones in which women are playing the predominant role as far as families are concerned they form 20%in Tanzania societies like mwera, makua, zaramo, kaguru, luguru, kwere, makonde, wakwaya, kutu, tunda, zigua, doe and kulu. Other societies who were matrilineal who later moved to patrilineal are the wapare, wasambaa and wadigo. Other was patrilineal societies with element of matrilineal society such as sukuma. In most matrilineal societies man moved to women family as far as marriage is concerned. In this case women were powerful children also inherited from their mother lineage. Since it was matrilineal societies children inherited from maternal parents. The matrilineal society are also exogamous the same members of the clan could not get married and the clan members as opposed to endogamy. The bride price of children born out of matrilineal society went to their mother’s family.

STATE INTERVATION IN FAMILY LAW DURING THE COLONIAL PERIOD

During colonial period state started to intervene to regulate family law through statute regulation. In Tanganyika for instance the TOC which was enacted in 1920 the TOC established high court and subordinate thereto  who were conferred with criminal and civil jurisdiction since in pre colonial societies there were no court the Article 24 of TOC provided that customary law was applicable in all both civil and criminal cases except where the particular customary law is inconsistency with justice and morality, there were also native courts which were chaired by the chiefs, the appeal went straight to the district officer,  this is where the state intervention came into being since the district officer belong to the state.

        THE TREND OF COLONIAL JUDGES ON AFRICAN MARRIAGE CASES.

How did English judges defined marriage; the concept of marriage as far as English law is concerned is summarized in the case of Hyde  vs. Hyde [1866] LR 1 PAD  in this case marriage is defined as a voluntary union between man and a women which is intended to last for life.  3 essential element is concerned i.e. the marriage is of two people only contrary to the pre colonial societies marriages in which a man may marry more wives. Also it must be intended to last for life. However there was no uniformity in the views of judges.

 The colonial judges include the English element in judging the African cases.

1 .In Rex vs. Achoda  in which one African was charged of murder and stealing from one Indian several peaces of evidence were adduced in court they needed corroboration in which the only person to provide corroboration is his wife. The wife was reluctant to give corroboration basing on principle of compellability due to the fact that the husband and wife are not compelled to give the evidence one another, the judge refused to accept the argument of the wife, since for him African marriage was not marriage. He give reasons that African marriage were not between one man and woman and also brutally.

2. Also in Rex vs. Owuma Achalla 1915 ULR 152 in this case judge carter came out with the interested view about African marriage which overruled the decision in rex vs. achoda he said when interpreting African marriage regard heard in the local circumstances. However in 1970 the Ugandan amended their evidence ordinance on compellability principle provided that for the couple not to be compelled the couple must be in monogamous family.

3 .In Rex vs. Anukeyo  [ 1917] 7 EALR 14 in this case judge Hamilton  insisted on the concept on marriage as applicable in English law as on the concept of marriage as in Hyde vs. Hyde. He stated that using the word marriage to African is a misnormal the correct word is wife purchase since African ladies are not free agent are like chattels bargain took place in their absence and that was not the end of business the husband can purchase more wives.

The position was settled  in 1957 in the case of Maugi vs. Rex [1957] Ac 126 also can be found in 23 EACA 609 TANZANIA CASE in this case the privy council emphasized the point that marriage means the monogamous marriage and restated the principle in Hyde vs. Hyde. But it went on confided that this is as far as English law was concerned that regards should be heard in local circumstances when comes to the case of natives i.e. the customary law and Islamic law applicable at that time.

Here the state started interfering the marriage issues contrary to the pre colonial time were clans was concerned however African marriage survived due to customary law recognition

              POSITION OF COLONIAL JUDGE ON ISLAMIC MARRIAGES

They have the same view as customary marriage; it was also recognized in the TOC, for those east African based in Mombasa at that time part of Zanzibar under TOC also established special court to deal with Islamic marriages called the kadhi courts. Despite the recognition still the courts of Kenya and Zanzibar were reluctant to recognize the same i.e. the Islamic marriage. They said that they were not competent to deal with Islamic marriage since were not taught Islamic marriage, they could only apply English law to avoid these trouble the Kenya established the Mohammedan Marriage Divorce and Succession Ordinance in order to compel the judge to use the law, started that the high court in Kenya was competent to impose Islamic law.

In Tanganyika was a problem of Asiatic marriages especial for those non Christian Asians since Christian were recognized under the Christian marriage. In the case of Fatma Bacho vs. Majothi [1946] TLR 163 the court said that it has no jurisdiction to entertain cases arise out of non Christian.

THE EFFECTS OF UNIFICATION OF [CUSTOMARY] LAW AND FAMILY LAW

In order to ensure the situation left by the colonialists   there has been a need for unification of the two laws

In 1969 the government issued white paper number one [1]where it was recommended that one family law should be enacted whereas in this law the try to recognize different system of marriage such as Islamic, Christianity and customary marriage.

Hence Christian marriage is similar to Hyde case was recognize though Islamic and customary marriage was still there

                                     CONTRACT TO MARRIAGE

A marriage is usual provided with a contract to marry or promise to marry due to fulfill of promise this

[Notes yet to be written]

                        THE NATURE OF MARRIAGE IN TANZANIA

The law of marriage is basically provides two types of marriage in Tanzania the monogamous and polygamous [under s.9, 10 together in L.M .A] monogamous marriages are those conducted under civil ceremony and under the church. Whereas polygamous are these which are conducted under Islamic law and customary laws, the Islamic is limited for four wives while customary law is unlimited one can marry many wives.

                                   PRELIMINARIES TO MARRIAGE

Prior to marriage there are things to be taken into account.

1.     Under section 18 (1) of Law of Marriage Act. Parties must give notice to the register of marriage at least twenty-one days before marriage showing their intention to marriage;

2.      Once the notice has been given the register shall cause the notice to be published. As per Section 19 [publication of notice] to the Act.

3.     After publication, any party may raise and objection if any to the register with reasons. If it is an Islamic marriage and the husband want to marry the second wife the  first wife can raise the objection that having regards to the means of her husband the second marriage may cause the hardship to the marriage, also she can raise the objection that the intended wife is having the notorious character or the disease which can cause trouble to the family [s.20]

If there is objection the marriage can not be conducted, but it will be dismissed. If there is no objection it will be conducted

The forms of ceremonies

Religious, civil and customary ceremonies [section 25 of LMA] provide for those three ways in which marriage can be conducted in Tanzania

CIVIL MARRIAGE;

Is provided for [under s 29] which is usually conducted by the district register and normally presumed to be a monogamous until the contrary is proved. [The parties should opt whether monogamous or not]

RELIGIOUS MARRIAGES; [Christian and Islamic] 

1.     CHRISTIAN MARRIAGE; [RC. PROTESTANTS, PENTECOSTALS] For the RC church the marriage is monogamous and it is among those seven sacraments, where it is believed to be witnessed by God. For this reason the marriage is insoluble to death they never recognize the divorce. The same to Anglican Church, and for protestant like Lutheran it is a covenant, the two people enter into a contract, they actually enter into it before God. It is monogamous marriage the church never accept divorce. Even if the divorce decree is entered by court of law the church will not recognize it. Hyde vs. Hyde.

2.     ISLAMIC MARRIAGE; For Muslim the marriage is voluntary union between the woman and man or woman and man it is polygamous but should be not more that four, for them there is a room for divorce if there is trouble in marriage. Apart from those two elements it shares features like a marriage for life. Except in one situation that is ‘mutta’ marriages which are temporary in nature [specific period of time common among Shia. Though it is a controversial issue between the Shia and suni. Under law of marriage the mutta marriage is not allowed. NOTE though Muslim are allowed to marry four wives, but in order to do so, they must show that they are capable of maintaining all the wives. Also he will treat them equally and fairly. Also right of sexual intercourse. CASE; Bashford vs. Tully [1971] HCD 76          

 CUSTOMARY MARRIAGES;

            It only mentioned the Law of Marriage Act[1] but it is not well articulated, it is the ward executive officer and divisional executive officer who can register marriage. It is celebrated according to custom of a particular community; it must be recognized by customary law. It must take place among the people who observe that particular custom. Impliedly customary marriage is mostly conducted in villages.

 NOTE; in both civil and religious marriage those who conduct them are doing it under assisted registers and they must be appointed in Government Gazette not in their official capacity.[2] Position of ‘ndoa ya mkeka’ is not a valid marriage. Since there is no intention to marry each other.

PRESUMPTION OF MARRIAGE [provided for under s. 160 (1) of LMA]

If a man and women have lived for two years it is presumed to be a marriage. Under common law it is ‘called a common law wives’ they normally look for extent of period i.e. how long. The practice developed on Tanzania where couples have lived for several years, when the man is tired can separate.  The presumption is based on his cohabitation for two years or more and the husband has gained the reputation to be a husband and a wife. [Depend on how the neighbor regard the two couples] this does not apply automatically it is only applicable where there is a dispute i.e. marital problem between two parties it was there to protect women. On issues of inheritance. If the husband has died and the relative don’t allow the woman to have inheritance.

If section 160 have been given restrictive interpretation it would have remain a simple instrument for recovering financial support for woman, order of child support and custody and decrees for division of assets.

HOW DIFFERENT JUDGES INTERPRETES THE SECTION 160 OF L.M.A OF 1971.

A good number of high courts judged bears a valid if the presumption is not rebutted while other judges are reluctant to accept that position.

In Salum Itandale’s case [1982] TLR 333.  In this case a man seduced the respondent  daughter, impregnate her and cohabit with her, her father demanded 5 cows as a customary refund for elopement for her daughter 2, cow constitute customary dowry while 3 should be down payment for bride price. The husband did not pay and lived for almost 5 years got 3 children later separate. The question for the custody of children came about. Husband sued in court to recover the custody of children    Whereas Chipeta. J. held that all evidence shows full indication of marriage. Although their status remain till regarded by court of law.

Yonathan Guandengo vs. Constant.  Daniel [1994] in this case man applied to court to be declared a husband to his wife, by virtue of local cohabitation but mainly he wants a share of wife’s’ house. It was held that presumption could not arise where there is no marital problem.

In Francis Leo vs. Paschal Maganga. [1978] LRT 22 In this case Mfalila J. as he then was said that s.160 (1) has been a victim of confusion and thus is does not automatically for two years to transfer concubine into wives for presumption to raise the parties must have under gone marriage ceremony [ not correct interpretation of the section ]

It must also be noted that section 160 never cure defects which go to the root of marriage [ it cannot be invoked to validate marriage which was void abi initio] factor such as age, or where the man has subsist marriage [monogamous] and decide to marry again the second. The cohabitation would be for their own peril.

Charles Uyembe  vs. Mwajuma Salehe.  1982 TLR 304

Elizabeth Swaliba vs. Peter Obora [1975] LRT 225

Ramadhani Muhamed vs. Omary Ramadhani [1976] LRT 8

       Elizabeth Ismail vs Haroun [1992] TLR 322

LEGAL EFFECT OF MARRIAGE

Where marriage is celebrated successfully where ceremony has resulted to valid marriage it create some duties and right of parties to that particular marriage. By marriage become one. Legal existence is suspended and incorporated by legal existence of husband lots of things a wife cannot do on her own.

DUTIES AND RIGHT UNDER MARIAGE

1.   duties to cohabit; [living together] goes hand in hand with right to enjoy each one consortium, that is bundles of right in a marriage like, sex, companion, sharing love intimacy,  originate from common law. i.e. the common law saw consortium will only be enjoyed if parties are living together. If any one interferes with rights of consortium of marriage couple. Then either party of marriage can claim for damages. Common law provides exception under which husband cannot claim for damage for interference for right of consortium, i.e. when wife goes out for sex due to quality of husband or breach of duty of husband to provide a sexual intercourse.

 POSITION IN TANZANIA 

No any specific provision under law of Marriage act which provides for duty to cohabit but section 111 of LMA it is impliedly talks about decree of separation section 67 of LMA  expressly provides that parties to marriage may ought to have apart by written agreement, no duty to cohabit  as in Ahmad vs Kidevu 1989 TLR 148. Wendwa Mtinangi vs Juma 1984. TLR 47. 

2.     Right to use husbands surname under common law the wife has the right even after the divorce.

3. Marital confidentiality. No party to marriage is allowed to dispose any information about other party obtained during subsistence of marriage unless commanded by the court to do so. If happens other party may sue the other for exposure of secret.

4.     [In evidence law] couples have the right not to be compelled to give evidence to each other thought competent to give evidence section 80.

5. Duty of husband to maintain the wife in two circumstances, during subsistence and maintenance after the divorce.  Law provides that when determining question of maintenance court shall put into account customs of community to which parties belong section 63 of LMA and 110 of the Act.  Exceptions.  The wife will only be under duty to maintain her husband if incapacitated by mental or physical injury. 

Section 110 (3) LMA, maintenance after divorce or separation court may order husband to pay maintenance for the wife as in Domitilla Willy vs. A.S. Willy 1976 unreported. The wife petition for divorce at the sometimes pray for and order that husband should pay her certain amount of money for maintenance. The husband refused because were still living under one roof and was still providing her maintenance.  Patel J. since petitioner still living in one roof with respondent, it will be unfair for petitioner to seek amount since was still maintained.

Samuel Maura vs. Wakavu unreported. 1975. in which the wife a house wife petitioned for and order of maintenance ordered to be paid by cash on monthly basis. Maganga J. held that not propert to maintain a wife by cash who has never earned monthly salary. Life style of couples also was taken into consideration.

6.     the right of wife to pledge her husband credit. The wife has the right to take things on credit to be paid by her husband. The income of the wife is not regarded section 64 of LMA. C

CIRCUMSTANCES FOR THAT RIGHT TO EXIST

Under the common law the case of Miss Gray vs. Lord Catchcart 1922 38 TLR or in Times New Law Report. 562. in which miss Gray was a very rich woman on her own, she went to the boutique and order expensive dresses upon delivery, husband was to pay the husband refused. The wife had no authority to pledge on his credit for said goods. The wife was on receipt of allowance which was sufficient to maintain her and should not exceed. The order was extravagant eight dresses were too many.  Marcadid J. held that, marriage in itself never give wife the right to pledge on her husband credit it is only presumed right t section 64 and under only necessaries of life. The test Is always kind of life the couple are living. The husband can negate his liability by showing the following

-         He has warned credit man not to supply things on credit to his wife.

-         The wife was already supplied with sufficient of those goods.

-         The wife was supplied with sufficient allowance or that she has sufficient means to buy her own goods without pledging on credit.

-         The husband can forbid wife not to pledge on his credit.

-     The order though was of necessaries of life, it was excessive and regarding to husband income it was extravagant thus no liability to pay a bill. Section 64 of LMA is based on this case though is much wider than the English position on as gives wife to sell immovable property of her husband to buy her necessaries of the life.

                      ADULTERY AND RIGHT TO COMPENSATION

A male person is committing adultery when she or he is having an affair with the third party out of the marriage. Under common law damages for adultery are available. Under the following principles;

1.     Damages should not be punitive but compensatory.

2.    Damages should be actual loss depend on actual value of woman if wife is not prostitute.

3.     Damage may base on peculiar loss and loss of right of consortium.

POSITION IN TANZANIA.

Section 72 up to 75 of LMA different tribes with different character customs and tradition should be taken into consideration, for example among the Maasai is not a problem. For Sukuma a number of cattle is paid. When assessing damage for adultery one must be carefully.

1.     We should not impose English culture in Tanzania which have mixed culture.

2.    Damages should be in discretion of the court since it is difficulty to assess the same.

3.     Damage is only compensatory and not punitive.

4.     Damage should not be awarded if proved wife conniver i.e. consenting with the husband to commit adultery, on either of party.

5.  To condone to adultery is to keep quit with knowledge of one party being committed adultery

In Jumainne Jingi s Joka Kiduda. 1984 TLR 51. in which Lugakingira J.  Said, damage is only payable when there is only valid marriage. Suits under section 72 (2) shall be dismissed if defendant satisfy court that he or she did not and could not by exercise of reasonable diligent had known that person with whom one committed the acts of adultery was married.

Gaipensulle vs Sumi Magoye 1984 TLR 289 in which Mwalusanya J said that, it is not that law that there should be direct evidence of person to be called fragrant delicto. In order to prove adultery, since it is very rare to find such situation. Only circumstantial evidence that one has done it. Circumstantial evidence is enough. In assessing damages for adultery the court shall take into account customs of the community to which parties belong. As in Juma  Misanya v. Lister Durumay 1987 TLR 22.  no damage of adultery under presumption of marriage. As in Zakaria Lugendo vs Shadrack 1987 TLR 31.

                                             NULLITY OF MARRIAGE

English common law is used prior to reformation English marriages were based to Catholics which were binding to all

After reformation few changes were made though issue of nullity remained church has no devorce. It is prepared to agree that there are circumstances which hinder nullity. Divorce differs from decree of annulment.

Divorce is where a valid subsisting marriage while decree of annulment is to the effect that there is initial impediment preventing formation of valid marriage into its fullest sense.

Two circumstances in which a marriage annulity may be done.

1.     where a marriage is void

2.     Where a marriage if avoidable.

Void marriage means that the ceremony did not create marriage at all. I.e. void abi initio. S. 38 of LMA whereas voidable marriage are one in which although imperfect but regarded as valid subsisting marriage until annulled by the court of law

Dereneville vs. Dereneville [1948] ALR 56

GROUNDS UPON WHICH A MARRIAGE IS DECLARED VOID

Section 38 provides for those grounds;

1.     Where parties are of the same sex. As in Cobert vs. Cobert [1970] WLR 1306 in which a defendant, Mr. Ashling decided to change his sex by severing his male organs and fixing female organs. It was successfully done. Thus she become a courier model, latter she got married to a man who did not know all this parts; but letter on he discovered that he was not a really woman. It was held that sex is biological fixed at birth can not changed artificially. Thus Ashling cannot by no way be a woman

2.     Also if parties who practice marriage are within prohibited relationships as provided by section 14 of LMA also in the case of Michael Mangare vs. Mangana [1976] LRT 19  and Fatma Massoud vs. Massoud [1977] LRT 3.

3.     Where either party to that marriage is below the age for marriage. As in Alhaji Muhamed vs. Knott [1968] 2ALR 563 in which alhaji a Nigerian married 14 years of age girl, according to the Nigerian it was a valid marriage, they went to England where validity of marriage was disputed. Also in the case of Pugh vs. Pugh Neville [1961] 2ALL 680

4.     Where there is a valid subsisting marriage especially monogamous .later on purport to have the second marriage thus the latter is void abi initio. In Ramadhani Said vs. Mohamed Kilu in which couples were in conflict. Decide to separate for long time, a woman believed that they were dully divorced, she contracted another marriage, it was held that the second marriage was void abi initio, a mere fact that decided separate is not regarded as divorce only a court of law can divorce. As In King vs. King [1963] 3ALL 561; Hayward vs. Hayward[1961] ALL 236; Kassim vs. Kassim [1962] 3 ALL 426

5.     Another grounds may include where consent to either parties was not freely given

6.     marriage express to be temporary in nature it is void abi initio

7.   If a wife married in Islamic form and contracts another before expire period of Islamic customary month called ‘idda’, rationale behind is to find out if she can be pregnant.

            GROUNDS UPON WHICH MARRIAGE CAN BE HELD VOIDABLE.

1.   Either parties to the marriage are incapable of consummating the marriage; marriage is consummated by first act of sexual intercourse after celebration of marriage. E.g. when a man is impotent either part may seek this decree. Even capable as in Harthan vs. Harthan [1948] 2 ALL 644, sexual intercourse before marriage is irrelevant but never amount to consummation.  Also in Dredge vs. Dredge. [1947] 1 ALL 29.

the purpose of consummation, sexual intercourse should be complete and ordinary; it should not be partial by artificial means i.e. full penetration in ordinary means.

In Baxter vs. Baxter [1947] 2ALL 886 in which the wife did not allow husband to do sex without contraceptive sheaths because she did not want children, otherwise no sex was allowed without sheath. Husband sought decree of nullity under ground that marriage did not consummate. It was held that the use of sheath is by law means only method of contraception in common use. They could use other method such as pills.

In Coen vs. Coen [1945] 2ALL 197 also in Mohamed Ndetwa vs. Hamisi Omari [1988] TLR 137 in which In the Primary Court, the appellant won his claim for recovery of dowry and various  traditional payments plus costs of the suit, on the ground that his wife had unreasonably refused to consummate the marriage. The respondent appealed to the District Court of Kondoa and the appellant was awarded just restitution of bride price. Hence this appeal against the decision of the District Court.  Held: Once a marriage has taken place any gifts, whether traditional or otherwise, given in contemplation of the marriage become the absolute property of the recipient and it cannot be diverted by subsequent divorce: s.7 of the Law of Marriage Act of 1971,  which also supersedes rules of customary or Islamic law.

Incapacity to consummate marriage. In W vs. W [1967] 3 ALL 178 in which a husband was able to penetrate his wife but as soon as the penis enters, it collapse in the vagina and come out. It was held that marriage was not consummated.

In order for petition to succeed on ground of incapacity to consummate it is important at the time of hearing and that impotency is incurable in the sense that either it cannot be cured even if operation is taken is likely to succeed. In S vs. S [1954] 3 ALL 736. In which a wife’s hymen was so thick that it prevented a full penetration by the husband, the husband suggest that she could seek medical advice but he could not take her to any doctor. Letter he went to live with another woman and sought decree of annulment.

The issue was whether she was incapable at the day of hearing. It was held that, consummation was improbable but due to fact that husband was living with another woman, operation was possible to make her able to penetrate.

NOTE:  ejaculation and incapacity for woman to conceive are irrelevant. As R vs. R [1967] 1 ALL 1194. It was held that there may be no ejaculation provided there is penetration, consummation is complete.

S vs. S [1962] 3 ALL 55. A woman was incapable of conceiving since she had no uterus. Husband petition for decree of annulment. Incapacity was irrelevant.

           PROPERTY RIGHT BETWEEN COUPLES DURING MARRIAGE

Property relation is among legal effect of marriage

                    HISTORICAL DEVELOPMENT AT COMMON LAW

It is the duty for the husband to maintain the wife and wife can even sue the husband for failure to do so. Even this duty at common law in the past, one a woman was married she was required to surrender all her properties to her husband, since it is the duty of husband to maintain the wife the husband become the trustee of wife’s property

Due to life stress it was observed that men died earlier than women. When the husband died all the property was vested to wife and children but it arose the problem when the wife was the first to die. That when the wife dies first all the property were vested to children and the property were taken form the possession of husband even if the matrimonial property home is the place where couple usually reside  belong to wife were taken to children. As a result, reforms were made to the law, the law changed and made women property act of [1882] was enacted under this act the position was the married woman has the right to own property obtained prior and after the marriage. [Still the position in UK to date]

                                     

THE POSITION IN TANZANIA

 Section 56 of LMA. [Provide that woman has the right to acquire property as man did] under the law of marriage act are divided into two 

Personal property section 58 of LMA. This section recognizes the existence of separate property of husband and those of wife. I.e. marriage does not change ownership of property acquired before the marriage. It does not prevent spouse from owning, acquiring or disposing property during subsistence of marriage.Abdallah Shamte vs Mussa 1972 HCD 9

Joined property; joint property of married couple includes matrimonial home and other property jointly acquired during subsistence of marriage. Section 2 of LMA defines matrimonial home.  Matrimonial home is presumed to be under ownership of couple neither of parties can alienate one self without the consent of …section 59 (1) LMA the same position is reflected under Land Act Section 114[as amended] 2004 according to these provision if there is not such consent from the other part in case of creation of mortgage then the mortgage will be considered invalid in eyes of law.

                                OTHER MATRIMONIAL PROPERTY

Section 60 of LMA provide for presumption of property acquired during the subsistence of marriage if the property is in the name of husband and wife then there shall be rebut able presumption that the beneficial interest there in are equal if it is the name of husband alone or wife alone there shall be rebutable presumption that the property belong absolutely to that person whose name appear to that property

Bi Hawa Muhamed vs. Ally Sefu [1983] TLR 62  The appellant and respondent were wife and husband respectively until the dissolution of   their marriage by a court decree of the Primary Court of Ilala District at Kariakoo, Dar es Salaam in 1980. In subsequent proceedings the Primary Court held that the appellant was not entitled to any share in the matrimonial assets as she was a mere wife and that the house was bought by the husband's money. On appeal to the High Court, the Primary Court's decision was substantially upheld. This is a second appeal.

Held: 
(i) Since the welfare of the family is an essential component of the economic activities of a family man or woman it is proper to consider contribution by a spouse to the welfare of the family as contribution to the acquisition of matrimonial or family assets;

(ii) the "joint efforts" and 'work towards the acquiring of the assets' have to be construed as embracing the domestic "efforts' or "work" of husband and wife;

(iii) where a spouse commits a matrimonial mis-conduct which reduced to nothing her contribution towards the welfare of the family and consequential acquisition of matrimonial or family assets she or he would not be entitled to a share in the property.

Rimmer vs. Rimmer [1952] 2 ALL 863 ,  Cobb vs. Cobb. [1955] 2 All 696 , Button vs. Button [1968] 1WLR 457   Miriam Tumbo vs. Harold Tumbo. Family Law - Petition for Divorce - Requirement of reference to Marriage Conciliatory Board prior to petition - S. 101 of the Law of Marriage Act, 1971.  F 

Family Law - Divorce - Evidence of breakdown of marriage - Cruelty - Constructive desertion - Adultery - S. 107 of the law of Marriage Act, 1971.

Family Law - Custody of children - Welfare of infant children - Independent opinions of children- Age of children to be taken into account.  Family Law - Division of matrimonial assets - Meaning of work towards the acquisition of assets- Whether housekeeping is contribution to acquisition of matrimonial assets. The parties to this proceeding were married under Christian rites in 1958 and have seven issues of the marriage.  The petitioner sought dissolution of marriage alleging adultery, cruelty and desertion.  She also prayed for custody of the youngest five children and for the division of assets.  The respondent has cross-petitioned for divorce, alleging cruelty I and desertion.  He also prayed for custody of the youngest three children.

LUGAKINGIRA J

Held: (i) Under paragraph (f) of the proviso to s. 101 of the Law of Marriage Act, 1971    the court may dispense with reference to the Marriage Conciliatory Board where it is satisfied that there are extraordinary circumstances which make reference impracticable;

          (ii) it is one thing to tolerate a spouse's misconduct, it is another to put up with    the consequences thereof; in contemplation of this the legislature enacted s. 85 of the Law of Marriage Act, 1971 that evidence of misconduct by a husband or a wife shall not be inadmissible in any matrimonial proceeding on the ground that the misconduct was condoned by the aggrieved spouse;    

      (iii) when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances, would consider that the conduct complained of is such that this spouse should not be called on to tolerate it;    

        (iv) it is settled that where one spouse behaves in such a manner that the other is virtually compelled to leave, the former may in law be the deserter; it is imperative for there to be conduct which amounts to dismissal from the consortium;    

        (v) in matters of custody the welfare of the infant is of paramount consideration, but where the infant is of an age to express an independent opinion, the court is obliged to have regard to his or her wishes;

        (vi) in accordance with s. 114(2) (b) of the Law of Marriage Act, 1971, the    court is required in exercising its power of division of assets to have regard to the extent of contributions made by each party in money, property or work towards the acquiring of the assets; housekeeping is a conjugal obligation and cannot be equated to work which refers to the physical participation in the production of the asset itself.

Order accordingly. Cases referred to:

          1.       Khan v Khan [1973] LRT n. 57.

          2.       Russell v Russell [1897] A.C. 395 (H.L.).

          3.       Gollins v Gollins [1963] 2 All E.R. 966.  H 

          4.       Buchler v Buchler [1947] 1 All E.R. 319.

          5.       Marwa v Akeyo [1977] L.R.T. n. 39.

DISSOLUTION OF MARRIAGE.

 Means bringing marriage to an end. Usually by action of court.

CAUSES

1.     By death of either of parties; section 12 LMA, 12 By 5 days disappear.

2.     By divorce granted by the court; section 16 and 94.

In case of death the parties are called widow or widower for wife and husband respectively while in case of divorce they are called divorcee.

Divorce is when marriage brought to an end by court decree.

HISTORICAL DEVELOPMENT OF DIVORCE.

In Hyde vs. Hyde in England and in Europe divorce was not accepted, when the church gave way to secular is when the divorce was initiated.

However Roman did not accept divorce only secular law recognize. In 1850 during that time in England divorce was an issue in 1850 discussion was established for 18 years in 1856 and 1857 Matrimonial Causes Act was passed allowed expressly grant of divorce. Decree of divorce operates as punishment to a party who is at faulty. After 1838 there was more to change a law than law to punish the sinners after World War there were further changes following those 1951 a commission was formed called Morton Commission 1951 duted with changing law in England and Britain recommended matrimonial offenses should be abolished came up with report called Putting Down Assunder which had softer approach to divorce law.

The recommendations were as follows.

1.     Instead of matrimonial offenses such as adultery, cruelty, and desertion. Should be one ground for divorce, and that ground was that a marriage has broken down irreparably.

2.     Only court to decide upon evidence under exclusive power to grant divorce.

3.  The court in determine it shall look beyond the offenses committed such as adultery, desertion, and cruelty since adultery is a sign that marriage has irreparably broken down. In its own cannot stand but those should be other reasons.

4.   Surrounding environment should be glanced at large, history and background also matter.

5. The court must carry a detailed and through inquiry to facts and cause of marriage death. Called a social postmortem. Of marriage. A name of process ‘put asunder’

the royal reform commission for consideration came about with another recommendations called ‘freedom of choice’ in 1969 reform stated that, there is a need for having a divorce law in England and provided for criteria for a good divorce law.  The recommendations were;

1.  good law should seek remedy rather undermining the stability of marriage institution

2.     .

3.    When regrettably a marriage is irreparable broken down but when happen such law should able to allow legal shelf to be destroyed with maximum fairness and with minimum bitterness and humiliation and distress.

There should be a balance e between maintenance and support and allowed to be and end only if is inevitable.

The rationale is an individual affair, the union between two couples. Stability is a public affair.

Marriage is broken and then should be given a decent burial nothing should be done not only couples but children too.

Dignity, decency and harmony should be a paramount important thing to consider such as matrimonial distribution of property. .

In 1969 the Divorce Act was born due to the two prior commission, introduced marriage down principle and abolished the reason e.g. matrimonial offenses the ground was irreparable broken down of marriage.

To date in England there is only one ground that is marriage has broken down irreparably.

In Uganda and Kenya, law applicable prior to 1938 divorce was considered as a punishment to party at faulty that is a law applicable in Uganda to date, still have matrimonial offenses.

The same position is shared in Kenya, in which old English law of divorce recognizes matrimonial offenses.

In Tanzania, LMA to a greater extent based on English Divorce Act of 1969 only one ground of divorce unlike Kenya and Uganda, that is marriage has broken down irreparable

                           JURISDICTION OF MATRIMONIAL CASES

FACTORS WHICH TO PROVE THAT THE MARRIAGE HAS BROKEN DOWN IRRETRIVABLY. [Irreparable].Section 107 (2) of LMA provides for this factors,

1.     ADULTERY.  section 107 (2) (a) in Tanzania adultery is of two different approaches, may attract payment of damages[compensation] also can be used to prove the fact that the marriage has broken down irreparable in Kenya and Uganda adultery stand independent ground for divorce and the law never provide damage for adultery. No one has ever attempted to define adultery but in Denis vs. Denis [1965] 2 All ER 51 in which the man was sexually impotent but were caught fragrante delittle with the woman with whom he has committed adultery   Mr., justice Synditone said that ‘I don’t think that adultery is proved without penetration it is not necessary the complete sexual intercourse take place but penetration of a man to a woman is enough to prove adultery. He further remarked that if a man and woman are attached together, take off their apparel and lie together there will arise the presumption of adultery and in most cases it may be difficult to rebut it but the inference can be rebutted if the man is found to be impotent. Also adultery must be consetual between the adultery. Where the married woman is raped she has not committed adultery it can be defined as sexual intercourse between two person of whom one or both are married but who are not married to each other so any degree of penetration however slight will suffice to amount to adultery.  DANIEL MLINGWA v MWAJA MKOTYO 1997 TLR 39 (HC)  Court   High Court of Tanzania - Dar es Salaam. The appellant had sued the respondent in the Primary Court at Dodoma for   C  adultery, claiming seven head of cattle as compensation. The trial court held that the respondent had committed adultery with appellant's lawful wife and awarded three head of cattle as compensation. The District Court on appeal held that there was no valid marriage between the appellant and PW 2. In a further appeal  Held

     (i)That there was no serious dispute that there was a valid marriage contracted under customary rites between the appellant and PW 2;

      ii) That the magistrate who had sat in the first appeal had erred when he said that payment of a dowry was a necessary prerequisite to validate a marriage. Non-payment of dowry did not invalidate an otherwise valid marriage.  

Appeal allowed and decision of Primary Court restored.

Cases referred to:

Lalata Msangawe v Henry Mwamlima [1979] LRT No 3    Circumstances in which adultery can be proved.

      (a) Spending a night in the hotel. Graspin vs. Graspin 1952 2 All E.R 349.

      (b) Visiting brothel. [DANGURO] England vs. England 1953 2 All E.R 784.

      (c) Conviction of bigamy. Holinton vs. Holinton 1943 KB 597,

                                   Kambunga vs.  Lugaijamu 1972 HCD 19 .

      (d) Birth of a child,

      (e) Cohabitation with third party. Mariam Tumbo v. Haroud Tumbo

      (f) Venereal diseases.

      (g) Confession.

 However suspicion by itself won’t suffice, the court will not act on that there must be irresistible inference leads to adultery. It is difficulty to prove for adultery. Adultery as evidence of marriage broken down irreparable it does not automatically leads to divorce even where it is proved the court must look at the circumstances of the case and look out whether the marriage has broken down irreparable it also depend on the circumstance of each case. [adultery may be there but marriage may be retrieved] vs. Cleary it was said that the petitioner may rely not only on the adultery, but also on any other matter, to show that father cohabitation would be intolerable, in this case the husband took the wife back after adultery but the wife continued to correspond with the man   with whom she committed adultery she went out with him at night finally she left her husband and went to leave with her mother so that she can meet he man. The husband stated he could no longer leave with her since there is not future for the marriage at all. Held that he had established irretrievable breakdown of the marriage notwistanding that he found life with her intolerable not on account of adultery but on account of he subsequent conduct.

Mariamu Tumbo vs. Harold Tumbo [1983] TLR 293  The Petitioner was a wife   claimed on adultery, desertion and cruelty , on adultery she alleged that the husband was cohabiting with the second the woman thought true of cohabitation the husband did not deny but he pleaded condonation [the other party has the knowledge but she or he kept quiet ] in this case in respect of ground the court stated ‘I have no hesitation in finding that there was condo nation, the petitioner might have initial felt slight humiliated and offended when the respondent took on the second woman but in the end she became reconciled to it and tolerated it taking no step to register her protest and for four years from 1977 to 1981 she voluntarily submitted to respondent in embraces  thereby  registering her forgiveness she can not now be held to complain. [Ground of adultery wasn’t accepted]                                                                                                                                       STANDARD OF PROOF OF ADULTERY   [camps of thoughts]. There has been considered judicial controversy over the standard of proof of adultery. Other says that the standard of proof of adultery should be like that  of criminal i.e. beyond reasonable doubt, the parties must be caught red handed while other says the proof should be like that of civil case i.e. based on balance of probabilities.

 In Smith vs. Smith the it was held so far at least as British Columbia is concerned the standard  of proof required to prove adultery in a divorce action where the legitimacy of children  is not in question is the civil standard of proof by preponderance of evidence rather than the criminal standard of proof beyond reasonable doubt.

 Blyth vs. Blyth [1966] 1 All E.R 524. 

Bastable vs. Bastable [1968] 3 All E.R 701.

All in all the standard of proof in adultery cases on matter of divorce needs its own standard of proof.

2.   CRUELTY; section  107 ( c) of LMA  Just like adultery cruelty is also not capable of precise definition in Gollins vs. Gollins 1963] 2 ALL ER 966 it was stated in Mariamu Tumbo vs. Harold Tumbo[3] that, it is impossible to give the comprehensive definition of cruelty but when the reprehensible conduct or departure from the normal standard of conjugal kindness causes injury to health or and apprehension at it, it is I think cruelty if a reasonable person after taking due account of the temperament,  and all other particular circumstances would consider that the conduct complained off is such that this pause should not be called on to tolerate. Therefore even apprehension of danger suffices if prove the one who will prove his intention will be cruelty also in BROMLEY Family Law 3 Ed Page 95 ‘ there is no need for the injury to be actually suffered, a reasonable apprehension of  injury will result if the conduct is persisted in will suffice for the court will not wait for the petitioner to be actual injured before affording him or her relief in Said Mohamed vs. Zena Ally  1985 TLR  13  in which the respondent petition the divorce on ground of cruelty in primary court where she failed on appeal in District Court  she won the case the husband appeal in the high court. The husband was in habit of biting the wife and threatens to kill her and he once strike her naked in font of other people including her in laws. Held that, by Lubuva j. the appellant conduct of not only biting but also undressed the wife in front of other people generally and her father in law in particular was and embracing and distressing act for cruelty which inflicted considerable physical and mental torture to respondent.

Juliana Mazengo vs. Jackson Leganga [1986] TLR 244.  NOTE. Reasonable wear and tear is acceptable between married couples. In Mc Ewan vs. Mc Ewan [1946]   [READ THE WHOLE CASE]   in which Lord Denning observed, married couples have the put up with all the nexatins the quarrels and the troubles which are ordinary incidents of the marriage life.  They have taken each other for better and for worse, they must put up with temperament and deflects of character of each other but there may come a time when defects of character or temperament may be such as to amount to cruelty but it all depends on the facts of the case. Similarly, it is common ground to expect misunderstanding in the marriage life which may culminate in person assaulting his or her spouse , if such incidents occur, and a person twice assaulted ones spouse I don’t think that alone would be suffice to justify a reasonable tribunal to conclude that the marriage vows have been torn apart beyond repaired. The marriage bond or contract for such matter sanctity as it should not be set aside lightly in the absence so evidence that the same has founded beyond repair.

Charles Auko vs. Regina 1984 TLR 44.

WILLIAMS VS. WILLIAMS 1963 2 All ER 994.

COLBERG VS. COLBERG 1961 EA 431.

MARIAM TUMBO VS. HAROLD TUMBO. Note that malpractices in sexual intercourse amount to cruelty but depends the circumstances of each case. If either party is engage in UN natural offense even with the third party amount to cruelty e.g sodomy lesbians.

Gadner Vs. Gadner 1947 1 All ER.  630;

 Caskett VS. Casket 1950 1 All ER 677;

 Walshan Vs. Walshan 1949 1 All ER 744,

3.     DESERTION: is another factor to prove marriage broken down irreparably, courts has declined in defining desertion however,  desertion can be defined as separation of one spouse from the other  with an intention on the party of deserting spouse to bring cohabitation permanently to an end without reasonable course and without the consent of the other spouse. But this definition lacks some aspects since in law there are simple and constructive desertions.

Simple desertion is physical separation where one party decides to leave the matrimonial home without intention to come back.  While constructive desertion occurs where one spouse does not actual leave the house but he or she conducts oneself in such as way that make the other party leave the matrimonial home. The deserted party is the one who has left the matrimonial home. In Tanzania the period determines desertion by spouse in marriage at least three years. Section 107 (2) (e) of LMA.  In Uganda two years.  In Kenya at least three years.

There are four elements in desertion

1.     Physical Separation.[factum]

2.     The intention to desert permanently [animus desevendi]

3.     Without Reasonable Cause.

4.     Without the Consent of the Other Spouse. 

For this purpose every case is to be decided in its own merit. Since the court must look at the conduct of the parties in each particular case. However sometimes factum among the four element may be disregarded.  Since there are situation in which the parties may leave under the same roof but there is desertion. This is where one party to the marriage decides to forfeit conjugal rights [it is desertion in eyes of law]

In Buchler vs. Buchler [1947] 1All E.R 319 in which the House of Lords denied the wife’s’ a decree of divorce on the ground of constructive desertion thought husband conduct caused the wife intense unhappiness. The husband establish an remarkable association with a man in his office as friend to extent of ignoring his wife it was held that, the conduct did not justify the wife in treating it as dismissal from the consortium and in leaving the matrimonial home. Lord Green in this case said.’ constructive desertion therefore requires both factum and animus desevendi and an indication by the husband to the wife that she may leave if she likes [anumus] is not enough unless the conduct is such as to amount to an expulsion [factum] the mere wish to expel even if it exists without acts equivalent to its expulsion is in my opinion insufficient to constitute constructive desertion

Weggary vs. Weggary [1947]   AC 628

Smith vs. Smith 1949 4 All ER. 533

Pardy vs. Pardy 1939 3 ALL ER 779

Patel vs. Patel 1965 EA 560

Rex vs. Said [1948] EACA 110

     BURDEN OF PROOF AND STANDARD OF PROOF ON DESERTION

The burden of proof lies upon the party who alleges desertion by the other party he or she has to show that there is desertion without reasonable cause and one has never consented to desertion.

The standard of proof of that to balance of probabilities like the one in civil cases. In Tanzania the period determines desertion by spouse in marriage at least three years. Section 107 (2) (e) of LMA.  In Uganda two years.  In Kenya at least three years.

In Mariamu Tumbo vs. Harold Tumbo[4]. In which the petitioner was the wife alleged desertion on the ground that the prevailing cruelty physical and mental of her husband made her to leave the matrimonial house, thus she alleges constructive desertion the court found that, the respondent is on constructive desertion but since it was only for period one year it was not the ground Lugakingira J. as he then was stated. The petitioners’ departure from matrimonial home was not prompted merely by incompatibility of temperament and unhappiness in the matrimonial relationship the petitioner was the victim of persistent physical and mental cruelty the conduct of respondent amounted to the dismissal of the petitioner from the consortium. On the  other hand his persistent invitation to the petitioner to leave his apparent pleasure at her departure and his failure to induce her to return are evidences of an intention to bring cohabitation to an end there was a factum as well as the animus  I am satisfied the construction was in  satisfied desertion . I am aware thought under our law desertion is not a ground for divorce unless it has persisted for at least 3 yrs. prior to the presentation of petition. In our case the period is one year I believe to be irrelevant to make finding in the issue since in our country proof in matrimonial offense [i.e. adultery cruelty] would not by itself entitle a spouse to a decree of divorce and therefore a failure to prove such offence would not by itself disentitle a spouse to a decree of divorce what is relevant is whether the marriage has broken down irreparably.

In this case divorce was granted because the marriage was broken down irreparable  also by considering of the  whole situation of the marriage and cruelty.

            SPECIAL FEATURES OF DIVORCE LAW IN TANZANIA.

Section 99 provides for right to petition for divorce. Section 109 provides for principle braking down of marriage. Section 107 provides factors to prove marriage broken down irreparable. Section 108 duty of the court to inquire whether the marriage has broken 110 provides the nature of broken down

However the principle of broken down of marriage irreparably has been misconceived by judged in Tanzania most judges think that if one of 3 ground is alleges then automatically the divorce is granted which is not solely ground for that.

In Joseph Warioba Butiku vs. Perus Uganda [1987] TLR 1

In this case both parties pleaded that the marriage has broken down irreparably there sought divorce both parties agreed to be divorced. Biron J. held the petitioner in his petition and the respondent in her answer established that the marriage has irreparably broken down as both asset it has and each spouse is praying for a divorce consequently. I have note the slightest hesitation in formerly finding that, the marriage has in fact and in law irreparable broken down, accordingly the marriage has dissolved.

               LIMITATION TO DIVORCE.

 [CONDITION TO BE FULFILLED PRIOR TO GRANT OF DIVORCE.]

1.     Before filing the petition for divorce one must go to Conciliation Board. Section 101, to 104 of LMA.  If the board failed it will issue certificate to show failure. The petitioner will go with the certificate before the court. Sometimes the parties may go strait to the court and file petition if there is exceptional circumstances.  But are not mentioned though may include if one party go to reconciliation board and the other party is not appearing many occasion. Also where there is cruelty the court may consider without the board certificate   ATHANAS MAKUNGWA v DARINI HASSANI [1983] TLR 132 (HC) 1983 TLR 132, This is an appeal against the judgment of the District Court at Kisutu in which the learned District Magistrate reversed the judgment of Kinondoni Primary Court and granted divorce to the respondent in this appeal. The Primary Court had dismissed the petition on the ground that there was no reference to the Conciliation Board prior to the filing of the suit. The District Court had found that the marriage between the parties had irreparably broken down and that exhibit 3 (which was in the form of a letter) in the trial court was a document from the Conciliation Board showing that the matter had been referred to them. The main issues on appeal are whether the marriage had broken down    irreparably and whether the matter was referred to the Conciliation Board prior to the filing of the petition for divorce in the Primary Court.     

Held: (i) Where the petition is founded exclusively on the petitioner's own wrong-doing I in the absence of any special reason a divorce decree should not be granted; in this case the petition of divorce was not held since they did not go to the reconciliation board.

2.  One can not file a petition for divorce in Tanzania unless two years of marriage has expired. section 100 of LMA however the section says petition for divorce may be filed regardless the couple has lived more yrs but exceptional hardships.

3.     The petition for divorce wont be granted if the ground for divorce is founded on petitioner own wrong doing. Faults. In Atanas Makungwa vs. Darini Hasani the evidence adduced was the appellant the husband told the respondent he was tired of her and that he no longer enjoys sex life with her. But on the other hand the husband said that the wife insisted on getting the’ talak’ on him else she would stab him with the knife, the wife used to sleep out of matrimonial home with other man, the wife petition for divorce.  It was held that.  The respondent wife did not in her evidence proved any matrimonial offense against the appellant on the contrary the matrimonial offense appears to have been referred to in the case is said to have been committed by the respondent wife. i.e. sleeping with other man it would appear then the petition is founded in exclusively in the responded wrong doing and that if that happens, in the absence of not any special reason the divorce decree should not be granted.

4.     collusion;  s. 37 of LMA, this is where the parties to a divorce petition procure the institution of the suit by an agreement to hide facts or fabricate certain false facts in order to procure the dissolution of marriage.  Noble vs. Noble 1964 2 All E.R 557.

5.   condonation;   this happens where the facts are known to other spouse and decides to forgive and the life continued if proved the party condoned can not be held to petition on divorce on the ground. Knowledge of the offense committed, there must be forgiveness. Both parties must be aware of each others intention to forgive.  There can also be condo nation where one may keep quiet it implies condo nation also. Refer the case of Mariam Tumbo. Section 86.

6.     Connivance; this factor applies in adultery; the parties to marriage may conny to adultery. Types of connivance.  Active. Wife and husband actual agree to adultery and passive where one couple agrees and accepts and not sure that one is right. I.e. Fifty fifty. But this must be distinguished from mere negligence or over confidence i.e. the husband is overconfidence that his wife can not do that,  it can not be called [connivance] in Richmond vs. Richmond 1952  1 ALL ER. 138.  In which two couple went for a caravan holiday and decided to swap their wife. But as far as holiday caravan was concerned after the caravan holiday they assumed that the swapping was over Mr. Buffet continued with Richmond.  Mrs. Richmond petitions the divorce in the case of adultery.  Held, it was not proper to separate the caravan and after caravan event. There was connivance since what is relevant was the fact that one first consented and fact that they continued is immaterial. Divorce therefore cannot apply.

Dening L j; Bebirfield a Barens 1952 2 ALL ER.  237 at 243.

[Question 2 of family law. GN No. 279 OF [1963] Provides that, payment of bride price is not essential to valid marriage,].GN No.  279 of 1963 has overridden customary law over the validity of payment of bride price]

12^th December, 2006.

                                                    ISLAMIC DIVORCE

As much as we know the law of marriage act in Tanzania  is the unification of different belief, customs, laws therefore it has recognize procedure in which the marriage can dissolve. Section 107 (3)

Condition for Islamic divorce

1.     Parties must be married in an Islamic form.

2.     must also  go to reconciliation board

3.     One of part must have pronounced talak. Or must have done act under which under Islamic dissolve the marriage.  But it should be proved by the court.

                         TYPES OF DIVORCE UNDER ISLAMIC LAW.

                        [Which act the party can do to amount to divorce]

1.     talak divorce, is an arbitrary act of husband to divorce a wife,

2.   mubaraat divorce, is divorce by  agreement, the parties to Islamic marriage agree to cease to be husband and wife

3.   Khula divorce; this is done by the wife making the payment for a certain amount or in form of valuable property to her husband to buy her release. After payment he will pronounce a talak. the act itself Is called ‘kului’

4.     Ila divorce is where a husband swears not to have a marital intercourse with the wife thus the wife may take it as a withdrawal advantage from conjugal rights.

It suffices to say that where one party has done an act amount to divorce, the court must find out that the marriage has broken down irreparable. The court must however insure that the marriage has broken down irreparable.

BIBIE MAULID VS MUHAMED IBRAHIM [1989] TLR 162. The parties were married under Islamic Law in 1979. In 1986 the respondent issued talaka in accordance with Islamic Law. Their dispute had been referred to a Marriage Conciliation Board which certified that it had failed to reconcile the spouses and the    Primary Court granted a decree of divorce. On appeal to a District Court, at the instance of the husband it was held that there was no evidence that the marriage had broken down irreparably and the decree of divorce and the order of division of matrimonial assets was set aside. Appellant now appeals to High Court.  

Held: 
(i) The Principal District Magistrate had apparently overlooked the provisions of section 107(3) of the Law of Marriage Act 1971; 
(ii) once the Marriage Conciliation Board has certified that it has failed to   reconcile the spouses, and a talaka has been issued, then the court has to find that the marriage has irreparably broken;

(iii) there must be evidence to show the extent of contribution before making an order for distribution of matrimonial assets;

(iv) Performance of domestic duties amounts to contribution towards such acquisition but not necessarily 50%. 

IN which parties in 1979 married under Islamic law. In 1986 the husband issued a talaka after passed a reconciliation board. The primary court did not solve the matter on the ground that there is no evidence that the marriage has broken down irreparable .they appealed to district and last appeal court. Held Mainer J. found district magistrate overlooked the provision of s 107 (3) … if talak is issued the court should not make any other inquiry but should grant divorce. Criticism the court should go back to look at the circumstances of the parties. Since after all these three procedure the court must go back to the circumstances of the case and find out whether the marriage has broken down irreparable.

HALIMA ATHUMANI VS MAULID HAMIS. [1991] TLR 178. ‘The appellant successfully applied for divorce at Utemini Primary Court in Singida District, against her husband, the   respondent. She sought divorce on the ground of cruelty on the part of her husband. The trial Court was satisfied that the husband had treated his wife with cruelty and granted the application for divorce. The respondent successfully appealed to the District Court. The district magistrate reversed the decision of the Primary Court for two reasons. First, that as the couple was Islamic, the body that attempted to reconcile them had no jurisdiction as it   was not an Islamic body.

Second, that the Marriage Conciliatory Board did not certify that it failed to reconcile the parties. The appellant appealed to the High Court.  MWALUSANYA J.   Held:

 (i)  The mere fact that the Board that reconciled the parties was not a Moslem Conciliatory Board did not render the reconciliation a nullity;

(ii) under section 101

(f) of the Law of Marriage Act the court may dispense with reference to a Marriage    Conciliatory Board if it is satisfied that there are extraordinary circumstances which make reference to the Board impracticable;

(iii) the appellant had succeeded to prove that the marriage was broken down beyond repair.In which Mwalusanya J. likened that of Bibie Maulid., he stated ’for a female Muslim, she can demand a kului or divorce Mubarak before sheikh. And for a male Muslim he can issue 3 talak. Then the concern Muslim merely goes to court to ask divorce to be officially given without proving that marriage has broken down.

Court, or most of the judges, has misconceived principle contained principle under section 107 (3) to the Act. After grant of divorce iddat period should be observed. Just like when the husband is dead. Section 38 (1) (j) of LMA

 In  Mwinyihamisi Kasimu vs. Zainabu Bakari. [1985] TLR 217 The parties were married under Islamic Law and after living together for over 13 years, the respondent petitioned for divorce.  The Primary Court dismissed the petition and her    appeal to the District Court was also dismissed.  But the District Court magistrate advised that because theirs was an Islamic marriage, the respondent could still obtain divorce by redeeming herself (kujikhului) by returning the dowry which the appellant had paid and that this would be in accord with s.107(3)(c) of the Law of Marriage Act,    1971.  Subsequently the respondent applied to the court to redeem herself as advised, and her application was allowed ex-parte.  The husband brought this appeal to the High Court.

Held:  (i)  In order for the court to make a finding that a marriage is irreparably broken    down and to grant a decree of divorce as per s.107(3) of the Law of Marriage Act, 1971, it must be proved firstly, that the parties were married under Islamic Law, secondly, that a Marriage Conciliation Board has certified its failure to reconcile the parties and, thirdly, that subsequent to the Board's failure to reconcile them one of the  E  parties has done an act which, under Islamic Law, is sufficient to terminate the marriage;

(ii)  in order for s.107(3) of the Law of Marriage Act, 1971, to come into play, all the three things must be proved to the satisfaction of the court hearing the petition for divorce, and they must be proved before judgment is entered, not after; 

(iii)  while it was established to the satisfaction of the court before judgment was entered that the parties were married according to Islamic Law  and that the Conciliation Board had failed to reconcile them, the third requirement, that any one of them had done    an act sufficient to terminate the marriage under Islamic Law, was not so established;

(iv)  even if the act of the respondent redeeming herself by returning the dowry could constitute an act to terminate marriage under Islamic Law, that act was legally ineffectual in this case because it was done after the court had pronounced judgment; 

(v)  as s.140 of the Law of Marriage Act, 1971, does not empower any court to compel a wife to live with her husband or a husband with his wife, an application for an order to compel the respondent to return to the appellant cannot be entertained;  

ADJUSTMENT AFTER DIVORCE

There are two aspects the division of matrimonial property and the custody of children.

1.     Division of matrimonial property; this is provided for provided for under sS.114 of LMA [matter of controversy in several years. Contained under section 114 (1) of LMA.] This provides that court shall have power to order division of matrimonial property gained under joint efforts. The term joins effort. I.e. most contravention aspect is whether the domestic services of husband or wife amounted to joint efforts towards acquisition of matrimonial properties. Liberal position, argued that domestic services shall be regarded as jointly effort towards the acquisition of matrimonial property.  But the conservative opposes. Two Positions continued for 10 years in courts of Tanzania depended on the minds of presiding judge whether he is conservative or liberal. HAMID AMIR VS MAIMUNA AMIR [1977] LRT 55 for 10 years there was no case refers to the court of appeal. Thus contradiction continued to exist till 1983 in the case of Bi hawa Mohamed vs. Ali Seif [1983] TLR 32 an appeal from high court to court of appeal. Nyalali C J. as he then was said.’ since the welfare of the family is crucial component for economic activities it is property to consider contribution. Thus contribution to matrimonial division should be looked at. It is a step forward since it is binding thus domestic service of husband or wife shall be taken a joint work to matrimonial property.the position was settled since the high court is the superior court and the decision binds the subordinate thereof. Lukerial Kundugu vs. Samwe Kundugu [1985] TLR 7.

Robert Aranjo vs. Zena Mwinjuma [1986] TLR 207. ‘The appellant had petitioned for divorce on the ground of his wife's desertion.  The Primary Court granted the decree on the grounds of the respondent's desertion  and her persistent denial of sexual intercourse to the appellant.  The Court further ordered a division of the matrimonial assets and awarded a quarter thereof to the respondent wife.  The appellant challenged the award to the wife on the ground that she was the cause of the breakdown of the marriage. Held: Consideration of the conduct of the party who causes the breakdown of the   marriage is relevant only in relation to the acquisition of the matrimonial assets not in relation to the breakdown of the marriage.    

Omari Chikamba vs. Fatuma Mazunga [1989] TLR 39. ‘The appellant and the respondent were husband and wife who were married according to Islamic Law. During the subsistence of their marriage the appellant and the respondent    had acquired four houses, a coconut farm and a stock of animals. Matrimonial problems developed and the marriage was dissolved by an Urban Primary Court. The respondent was proved to have been living an adulterous life. Trial Court found that the properties were jointly acquired through their joint efforts and awarded two houses to    the appellant and two houses to the respondent. The farm and stock were awarded to the appellant while the respondent was awarded Tshs.10,000/= as her share of the farm and animals. Respondent appealed to the District Court which, inter alia, found that one of the houses was given as a gift to the respondent's mother and should not have been a    subject of division.

KAZIMOTO J.The appellant appealed to the High Court arguing, inter alia, respondent's alleged    misconduct and mismanagement of property to be crucial in distribution of matrimonial property. 

Held: 
(i) Where during the subsistence of a marriage either spouse or both spouses give    matrimonial property to another as a gift,it is presumed that such property has been permanently given to that other person unless there is evidence to the contrary;

(ii) the house given to the respondent's mother was not a matrimonial property and should not have been subjected to these proceedings. The District Court was right    to exclude it from the list of matrimonial property;

(iii) although evidence in this case shows that respondent was of loose and immoral character both Islamic law and section ll4(2)(a) of the Law of Marriage Act,    l97l provide that a divorced woman is entitled to, and does not forfeit her share, in the division of matrimonial property because of immoral or loose character;

NOTE; Division of matrimonial property is not fifty fifty. [PARIPASU] The consideration is put on the welfare of children.

2.     Custody of children;   in granting or deciding in whose custody should the child be placed, the court shall consider the welfare of the child, called the principle of welfare of the child. Section 125 (1) of LMA is to the effect that the custody of child shall be placed in her or his mother or father. The court shall consider the parents. in some Exceptional circumstances the relative may be considered. Section 125 (2) of LMA provides that the court shall take into account the welfare of a child and wish of parent or wish of a child if is capable to express his or her independent opinion and custom and tradition of parties. Welfare of child principle is not confined to only food shelter and cloth it include the aspect of culture of the parties, and more important is the  education of child. 

Steven Christopher‘s case [1975] LRT 24. In which the father of a child who was a boy was a British man. He wanted to leave and go back to England thus intended to take his child. The mother a British had no an intention of going back to England, Mfalila j. held because the boy was an English child should go with his father to be taken care of under English culture.  Also the age of a child should be considered Section 125 (3) of the Act provides that it is a rebuttable presumption that a child below age of 7 yrs. should be kept in custody of his mother. But there may be some circumstance may cause the principle to be disregarded. For instance when the court proves that the mother of the child is irresponsible may be she is a prostitute.  Section 126 to 127 of LMA. 

Magret Wilson vs. Wilfred Seleman [1976] LRT 48. In which the court had to consider the custody of four children. The primary court placed the custody of two elder children to their father and the youngest to their father but the mother refused the father to stay with some children Mwakasendo held the two children should continue to stay with thief father placing them in their mother won’t benefit them. Since the father was a teacher by profession. Staying with mother will distort them educationally.

Restina Kibutu vs. Mbaya Kajiba [1985] TLR 42 ‘Marriage between the appellant and the respondent was declared null and void because the respondent was    incompetent to marry under the provisions of section 38 (c) and (e) of the Law of Marriage Act, 1971.  When the marriage was annulled the appellant was five months pregnant.  She then gave birth to a baby girl.  When the  E  child was two years old the respondent instituted proceedings for the custody of the child.  The Primary Court awarded him custody of the child.  On appeal by the appellant to the District Court the decision of the Primary Court was overruled.  Custody was given to the appellant until the child reached the age of seven years.  The    court ordered the respondent to pay Shs.50/= a month towards the maintenance of the child.

     When the child reached the age of seven years the respondent sought to be given custody of the child.  The case was before a Primary Court which heard both the parties and also heard the child who expressed that she wished    to live with the appellant.  Custody of the child was given to the respondent.  The appellant's appeal to the District Court was not entertained. She appealed to the High Court challenging the award of custody of the child to the respondent.  She also attacked the maintenance award as being too low.  

Held: 

      (i) The mother's entitlement to custody of a child born out of a void marriage is not absolute; it is conditional upon the absence of agreement between the parties or court order vesting custody to another person;

    (ii)  the wishes of a child of tender age should not be permitted to subvert the whole law of the family or  I  to prevail against the desire and KAZIMOTO J Authority of a parent unless the welfare of the child cannot otherwise be secured;   

a.     under the circumstances of this case it was not in the best interest of the child to have given custody to the respondent which would have adversely affected her educationally and psychologically;  in deciding what amount of maintenance should be paid the court should hold an enquiry as to the means of both parents in order to arrive at a just decision; where applicable the court should take into account the customs of the parties and the conditions prevailing at any particular time.  

MariamTumbo vs. Harold Tumbo. [case contain three grounds of divorce] Contain three grounds for divorce.

Halima Kahama vs. Jayantlal Karia. [1987] TLR 147. At trial the appellant admitted in writing her inability to take care of the child.  The trial court unanimously granted custody to the father.  Appellant's appeal to the District    Court was rejected.  She is appealing to the High Court arguing that there are material changes in her circumstances, to enable her to maintain the child.  

Held: 
(i) The welfare of the child requires that it be in the hands of either parent not   child's grandparents;
(ii) Where there are material changes in the circumstances of the parties after a custody order has been made, the aggrieved party has to apply to the    same original court so that it varies its earlier order; Obiter: Under s.125 (3) of Law of Marriage Act, 1971, there is a rebuttable presumption that it is for the good of an infant to be with the mother.  The younger the    child, the harder it is to rebut that presumption. ‘

Amina Bakari vs. Ramadhani Rajabu. [1984] TLR 41.’ This was a suit for the custody of a child who was born after his parents were formally divorced. The appellant claimed that the child was sired by a person other than her former husband. The trial court   refused to grant the respondent's claim for the reason that the appellant had named another person as the father of the child. On appeal the District Court reversed the decision and hence the present appeal.  Held: Whatever be the correct English expression of "children born in wedlock belong to the father", it provides no justification for denying the spirit of the customary rule from which Rule 175 derives, namely, the preservation of the sanctity and dignity of the marriage institution by refusing    to recognize adultery, a trespass to the marriage, as taking precedence over and ousting the husband's rights.

Order accordingly.

Cases referred to:

1. Richard Mapesa v Rashid Bwana [1978] LRT n.4.

2. Mungasio Munchari v Moseti Meremo [1978] LRT n.6.

3. Masuka v Sigonjwe [1971] H.C.D. n. 92.

4. Mgowa Madolo v Mgogolo Dododo [1973] LRT n.7.

HOKA MBOFU v PASTORY MWIJAGE 1983 TLR 286 (HC)

Court High Court of Tanzania - Mwanza   

Judge Mushi J      

November 30, 1983

CIVIL APPEAL 94 OF 1983  D 

[zFNz]Flynote

Family Law - Concubinage - Concubinage for 16 years - Whether s. 160 of the Law of Marriage Act, 1971 applicable where there is no allegation of presumption of marriage.

Customary Law - Concubinage - Division of property upon termination of concubinage -  E  Rule 93 and 94 of the Customary Law (Declaration) Order G.N. No. 279 of 1963.

[zHNz]Headnote

The appellant was appealing against the decision of the District Court of Magu which reversed the Nyaluhande Primary Court decision which awarded the appellant Shs.  F  5,900/= being her share of property acquired during her concubinage for 16 years with the Respondent.  The District court purported to reverse the decision of the Primary Court on account that there could be no division of property between the parties if their presumed marriage had not been dissolved.  The parties had not alleged presumption of marriage, hence this appeal.  G 

Held: (i) Where there is no allegation of presumption of marriage, section 160 of the Law of Marriage Act, 1971 cannot be invoked merely on account of concubinage association;

          (ii) rule 93 of the Customary Law (Declaration) Order, G.N. No. 279/1963 is applicable in the division of property acquired during concubinage association.  H 

[zCIz]Case Information

Order accordingly.   I 

No case referred to.

1983 TLR p287

MUSHI J

[zJDz]Judgment

Mushi, J.: The appellant, Hoka Mbofu, filed a suit in the Primary Court claiming half of  A  property earned or acquired during the period of 16 years in which she lived with the respondent.  The Primary Court awarded the appellant Shs. 5,900/= as her share.  The respondent, Pastory Mwijage, appealed to the District Court.  The learned Appeal Magistrate scrutinized the evidence and found that since the parties lived together in  B  concubinage for 16 years, the provision of section 160 of Marriage Act No. 1971 applied and that on the application of that provision the parties were presumed husband and wife.  The learned magistrate went to conclude that as there had been no divorce, the Primary Court could not divide the property acquired during that period.  The court  C  quashed the proceedings and declared that the parties were husband and wife and it was upon an aggrieved party to file  a suit for separation or divorce.  The appellant was dissatisfied with that decision and she has appealed to this court.

Before this court, the appellant stated that she did not agree with the court's decision that  D  she was a wife of the respondent since she was never married to him and thus she cannot file any divorce.  The respondent agreed that they did not perform any ceremony of marriage although they lived together for 16 years or so.

It is an accepted fact that the parties in this case were not married by any known law of  E  Tanzania.  There was no customary, Civil or religious marriage.  The parties only lived in concubinage.  If the association is to be given the status of constituting marriage this can only be done by invoking section 160 (1) of the Law of Marriage Act No. 5 of the 1971 which reads:  F 

          "Where it is proved that a man and a woman have lived together for two years or upwards, in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable resumption that they were fully married".  G 

Since there were allegations that the parties had lived together for about 16 years, the learned appeal magistrate felt that the case was fully covered by section 160(1) of the Marriage Act quoted above.  But was it necessary to invoke the Marriage Act provisions? I am of the settled view that it was not necessary to apply the above  H  provision.  Right from the institution of the claim, the appellant has not asserted that she was ever married by the respondent.  She has maintained that her association with the respondent was purely that of concubinage.  But she says that during the concubinage association, she and the respondent acquired some property/money, and that since  I  respondent  has decided to terminate that

1983 TLR p288

MUSHI J

association, the appellant has no objection except that she should get what they acquired  A  together.  In her evidence in the original court and her statement before this court, she has not based her claim on  her association having acquired the status of a wife.  Similarly the respondent's evidence in the Primary Court did not assert that the appellant was his wife.  The respondent merely stated how it came about that the appellant came  B  to stay with him.  In fact from careful scrutiny of the respondent's statement, it would appear that although the parties were living under one roof, they were each leading an independent life.  For example the appellant lived with the children of her brother against the respondent's wish and also according to the respondent the appellant had a different  C  plot which she cultivated separately with the help of the children of her brother.  In this regard, even if section 160(1) of the Act was to be invoked, it would have been necessary to look more into the lives of the parties rather than the mere fact that they lived under one roof.  The respondent has not claimed that the appellant is his wife, in  D  which case the appellant's claim could not be entertained unless there was divorce  or separation.  The whole claim has been made outside the Marriage Act and without requiring its assistance in order to be legally blessed.  The claim is maintainable under customary law because there is no mention of section 160(1) of the Marriage Act in the  E  whole trial.  Rule 93 and 94 of Local Customary Law (Declaration) order of Government Notice Number 279 of 1963 are applicable in this case.  Rule 93 authorises the property acquired during concubinage association to be divided between the parties if they decide to part company and section 94 sets out the manner in which the property shall be divided.  F 

For the above reasons, this appeal is allowed.  The district court decision is set aside and the Primary Court decision is restored.  As regards the amount awarded, there seems to be sufficient evidence to support the claim and the amount is reasonable and the same remains undisturbed.  G 

Each party to bear her/his costs in this court.

This judgment to be certified to the original court for reading to the parties.cx

---

[1] 1971

[2] Section 30 (2)of Law Of Marriage Act

[3] [1983] TLR

[4] Supra.

[5] Gluckman  1969, 60

[6] Gluckman, 1969, 60

[7] www.google.com 08.05.2007, “Marriage-Payment and dowry”

[8] www.google.com  9-05-2007, “marriage Payment”

[9] Gluckman, 1969, 60

[10] www.google.com 9-05-2007, “marriage payment”

[11] Whalton’s Law Lexicon 14^th Edition

[12] Pope Paul VI. Encyclical Letter, July 25, 1968, 5

[13] Concise Law Dictionary 3^rd Ed. 2006

[14] Osborn’s Concise Law Dictionary 8^th Edition 

[15] All England Annual Review 2005, 258/9

[16] Sex and Morality: A report presented to the British Council of Churches,11

[17] ‘‘The husband should give to his wife her conjugal rights, and likewise the wife to her husband. For the wife does not rule over her body, bur the husband does; likewise the husband does not rule over his body, but the wife does’’

[18] ‘‘Do not refuse one another except perhaps by agreement for a season…;but then come together again…’’

Mr. Justice Malisa Anthony   Tumaini University-Makumira University College