Marriage payment is as much as the price for a wife.

I. INTRODUCTION

We discuss on the following statement: Marriage payment is as much as the price for a wife. This has been explicitly made clear by the law in the doctrine of unity by incorporating the existence of a woman into that of a man in all aspects.

The payment of the bride-price or bride-wealth (Marriage payment) has been considered as being a price for a wife or wife purchase. In fact, the question is, does the bride price has anything to do or to contribute as far as the incorporation of the existence of a woman into that of a man in all aspects is concerned? And what does the law in the doctrine of unity  say about  the incorporation of the existence of a woman into that of a man in all aspects?

Therefore, the aim of this discussion is to prove whether the bride-price is as much as the price for a wife and to describe the essence of the union that exists between a married man and woman by the law in the doctrine of unity, so as to see whether the incorporation of the existence of a woman into that of a man in all aspects results from the marriage-payment.

In order to achieve this aim let us find out what is the marriage payment and its significances, and then discuss about the doctrine of unity to see whether marriage payment is an essential element in the union between the husband and wife.

II. MARRIAGE-PAYMENT

In fact term is composed of two words that is marriage and payment, marriage being the key word  thus it will be better to define it. Marriage according to the English law, Lord Penzance in the case of Hyde Vs Hyde (1866) LR 1 PAD  defined marriage as the voluntary union for life of one man and one woman to the exclusion of all other. But in Tanzania the relevant definition of what marriage is overtaken from (Hyde Vs Hyde} in section 9 of LMA, 1971 and it provides for in S.9 (1) that marriage is a voluntary union of a man and woman intended to last for their joint lives.

As far as marriage payment is concerned, it is one of the essential requirements of the customary marriage; a part from the consent of spouses and their families. Under S.16 LMA 1971 as well as S.17 this led even the colonial rulers to label customary marriages as wife purchase.

Before going in deep with our discussion, let us put it clear that marriage payment in some other cultures or societies all over the world is known as dowry and it is paid  by the woman’s family to the man’s family but in some African Societies the situation is different. It is the man’s family that gives the dowry to the woman’s family, therefore, speaking of the marriage payment in this paper we are referring to the African patriarchal system.

In many African (tribes) societies, marriage payment has had several important purposes or significances, thus, variant marriages in Africa are established commonly by marriage-payment (bride-price, bride-wealth, or in French “dot”[1] Moreover, in many African societies instead of labeling the marriage payment as a price for a wife” it is labeled as “child price”, because the bride price is a means used in many African society to resolve major issues connected with the children of the marriage such as in Pauwels reports that courts in Kinshasa (DRC) will not grant the genitor over  (his) the husband’s illegitimate child unless he had made the marriage payment[2] and as in the Case of; Amina Rashid vs. Ramadhani Held; children born out of marriage belongs to maternal father. 

In addition, in many African societies the custom of giving dowries or marriage payment  may perform several positive functions. First, the marriage payment affirms an alliance between two families united by marriage. Second, the marriages payment may provide a bride with some protection against  an abusive husband, if she should leave her husband, a man’s family may demand that all or part of his payment to be returned. Third, a young couple may use the marriage payment to set up their own household. Finally, a marriage payment is a gift of property that accompanies a bride upon  marriage.[3]

In fact, we disagree with the statement that marriage payment is as well as a price for a wife. On the grounds that this has been the colonial rulers way of labeling customary marriage where by the marriage payment is an essential element for the validity of marriage, while in statutory marriages (Civil or religions) marriage payment is not as essential as in customary marriage but it amounts to a “civil debt” payable on demand.

Marriage payment or Bride-Price is not a payment or Price for a wife, but rather is seen as a way of valuing the labor of women, the effort involved by the bride’s family in raising the female, and the labor value of a woman’s offspring, also Bride price enable the husband to have some rights from wife and other authorities , for example, sexual rights and rights over children[4]

In sum let us say that Bride-Price, sometimes referred to as bride-wealth. Is a form of marriage payment in which the bride’s group receives a payment of goods, money, or livestock to compensate for the loss of a woman’s labor and the children she will bear. In other words marriage payments are thus a way of establishing and securing alliances and for allocating women’s labor’s power and fertility and not a price for a wife or a wife purchase. Much more this is clearly started by Max Gluckman in his book Ideas and Procedures in African customary Law, “marriage is to establish clearly conjugal and genetical rights, and  does not place the woman in the position of Slave to her husband, she has herself rights which involve duties for her husband”[5]

III. DOCTRINE OF UNITY

As said above after finding out all about marriage payment and its significances let us now discuss about the doctrine of unity, what is the essence of unity and see whether incorporating the existence of a woman into that of a man in all aspects, results from the  marriage payment.

In fact, under the legal effects of marriage it is said that by marriage {the  voluntary union of a man and woman S.9 (1) LMA 1971}the husband and wife are one person in law, that is the very being or legal existence of the woman is suspended during the marriage and at least is incorporated and consolidated in that of the husband under whose wing, protection and cover she performs everything and her condition during marriage is her coverture, this is the doctrine of unity of husband and wife in which all the legal rights, duties and disabilities that either of them acquire by the marriage. In other words, we speak of doctrine of unity 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. [6]

In fact, the essence of the unity between man and woman is born from the definition of marriage as provided by S.9{1}LMA 1971 and the English law in the case of Hyde Vs Hyde. The doctrine of unity is based on the union itself of the husband and wife and not on the marriage payment, what is essential there is that there is a perfect union all aspects of man and woman. Which results in the following rights and duties under marriage:

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.

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 LMA 1971.

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 1971 and 110 of the Act.  Exceptions.  The wife will only be under duty to maintain her husband if incapacitated by mental or physical injury. 

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 1971

In sum, the law in the doctrine of unity by incorporating the existence of a woman into that of a man in all aspects, clearly explicit by saying that the condition for a woman to be married is her covertures that comes from her incorporation and consolidation of her existence into that of her husband under whose wing, protection and cover she performs everything. Hence, marriage payment is not a price for a wife nor the essence of the doctrine of unity, but rather the essence of the doctrine unity is from the very nature of marriage itself as a voluntary union.

IV. CONCLUSION

          As discussed above it is clear that marriage payment or bride price is not a price for a wife nor a wife purchase but rather it is a way of establishing and securing alliances and allocating women’s labor power, and the husband’s right over the children. However, in customary marriage it is an essential element but in statutory marriages it not essential.

As said above the essence of unity is from the nature itself of a marriage as a voluntary union of a man and a woman for life, and this union results into duties and rights of each spouse under marriage, such as consortium that resembles ownership(the husband owns his wife and the wife owns her husband, they both enjoy the bundle of rights) where as in customary marriage, marriage payment gives much more rights to the husband over his wife, for example, sexual rights and rights over children. Thus marriage payment has nothing to with the legal effects of marriage.

The consummation of marriage is one of the questions governed by the Law of Marriage Act under Section 39 (a) (i) (b) of 1971. The Act provides that a marriage shall be voidable if at a time of marriage either party was incapable of consummating it and if the marriage has not yet been consummated owing to the wilful refusal of one party to consummate it. This paper will go through different contemporary birth control methods and evaluate them in relation to the Law of Consummation, how they may or may not affect it in a way to make a marriage void. The paper will also take Tanzania Law of Marriage Act 1971 [CAP 29 R. E. 2002] as its scope and limitation and finally concluding with critical opinions whether to amend this law of consummation, not to enforce it or to enforce it with regards to the Law of Marriage Act in Tanzania 1971.

The Presumption of Marriage

As provided for under Section 160 (1) LMA 1971, that where it is proved that a man and a woman have lived together for two years or more in such circumstances as to have acquired the reputation of being a husband and wife, there shall be a rebuttable presumption that they were duly married. In the case of Zacharia Lugendo v. Shadrack Lumilang’omba (1987) TLR 31, Z. Lugendo claimed 5 heads of cattle as damages for adultery at Magu Primary Court from S. Lumilang’omba. Z. Lugendo was unsuccessful at the District Court on the basis that there was no proof of marriage between him and his concubine Thabita Yakobo where it was held that where a man and a woman live as husband and wife under the belief that they are legally married  ( solemnisation of marriage) their cohabitation amounts to concubine and that there must be evidence of customary law of marriage to constitute a marriage such as handing over ceremony by parents of the girl to the boy as provided for under Section 25 (1) (d) LMA, 1971.

This proves that the completion and perfection of a marriage is hereby according to the customary law of marriage, a handing over ceremony whereas cohabitation and consummation come thereafter. In this respect, the conjugal union between parties is complete and perfect only when the regulations as provided by the LMA, 1971 Section 25 (1) (b) (d) are observed not only the sexual intercourse itself which remains a duty of the parties. As it is also hereby defined that consummation is the completion of a thing; the completion of a marriage between wedded persons by cohabitation and consummation of marriage is done by sexual union between husband and wife. [7] Hence marriage is not the effect of chance or the product of evolution of unconscious natural forces, but the wise institution of the Creator to realise in mankind his design of love. Marriage is an act of the free will intended to endure and to grow by means of the joys and sorrows of daily life in such a way that husband and wife become one only heart and one only soul and together attain their human perfection.[8] The law of consummation should consider the viewpoint of perfection of marriage rather, from a complete and perfection sexual union which sometime being it illegally conducted; it is completely and perfectly conducted before marriage. 

When coming to the relation of complete and perfect consummation of marriage different plans and wishes of the parties have to be considered such as birth control plans. This is comprehended in both these terms as they differ principally in application whereas wishes are consummated, and plans are completed.[9] To make it clear, the consummation of marriage as provided for under Section 39 (a) (i) (b) of 1971 should consider apart from the perfection and completion of the conjugal union, the wishes and plans between parties although a marriage is consummated when completely by ordinary and complete sexual intercourse and not necessarily intercourse which may result in conception: ejaculation is irrelevant but if either party is important or wilfully refuses to consummate the marriage such marriage is voidable by a decree of nullity.[10]

In the case where the couple had started relationship in 1995 but married in July 2000. Shortly after the marriage the wife gave up her job. She suffered a miscarriage in August 2002. The marriage broke down in April 2003 when the husband left the wife for another woman. Having seen and held the partied extensively cross- examined [ Singer J] concluded that the husband was to blame for the breakdown of the marriage and gave much less weight to the duration of marriage found that the wife was to blame foe its breakdown or that the parties had separated consensually each acknowledging unexpected incompatibility. [11] This may be the same as breaking the marriage due to the fact of incomplete and partial consummation of  a marriage as a slight cause of miscarriage the led a marriage to be void. So as a man was found to blame for the breakdown of the marriage because of miscarriage, likewise any of the parties should be found to blame due to the breakdown of a marriage because of imperfect conjugal union which may be due to the result of poor parental pre-marital education.

The claim that there is a sexual component in every manifestation of human energy, argues that a healthy and well-adjusted sexual life is a necessary for the proper development of personality and stable relationships  hence complete and perfect conjugal union should not only consider marriage, but also family planning which may go through birth control methods. There have been developments in moral, philosophy, theology, and changes in economic status and social habits. The easy availability of effective contraceptives which offer the possibility of sex without children due to the threat of over- population, congestion and famine, are a good example of this development, illegitimacy and abortion which remain as formidable social evils counts to this[12].

Contemporary Birth Control Methods

         There are traditional birth control methods where some herbs are taken especially by a woman so that not conceive even at the complete and perfect conjugal union, and other methods are scientific such as sterilization, the use of contraceptives and many others where the married parties decide which is the best to use for family planning or rather birth control at a specific period of time or with a plan to have no more children. Some of these methods are the use condoms and sometime men withdraw before ejaculation so that ejaculation does not lead into pregnancy. In relation to the Law of Consummation under the Law of Marriage Act 1971, these methods may cause a marriage to be void, but the question is that how far do they cause a marriage to be void? Against the Christian ethics, nothing shall separate the married couples unless death. Nevertheless, in African traditional perspectives concerning divorce and nullity of a marriage, sexual intercourse does not count whether perfect and complete or partial, imperfect and incomplete. The point is a matter of having children and a marriage handled with all respects disregarding some regulations pertaining to the Law of Consummation as far as conjugal union between parties is concerned. Except for death and adultery, importance and partial sexual intercourse can not cause a marriage void in Christian and African traditional perception of a marriage.

Conclusion

I hereby conquer with the Law of consummation as for the Apostle Paul in his epistle to the 1 Corinthians 7: 3-4[13] but at least seeing the importance for the wishes and plans of a marriage to be left under decisions of the parties whether to conduct a complete and perfect conjugal union consummated as wishes or to conduct it as imperfect and incomplete under their particular plans as far as birth control for family planning is concerned. This is best described in 1 Corinthians 7: 5[14] the consents between parties should be a matter to this fact unless one of the parties claims otherwise. From the African traditional and Biblical point of view, the Law of Consummation should be re-enforced so that not to stop pro-creation of the human race, but to adjust it to the wills of the parties provided that one of the parties’ will wish is not violated in relation to the Law of Marriage Act Section 39 (a) (i) (b) of 1971 [CAP 29 R. E. 2002]

BRIDE-PRICE

In many societies where the economic aspects of life are intimately associated with group interests, bride-price is present as an arrangement between corporate groups that negotiate transfers of wealth and rights. Bride-price, sometimes referred to as bride-wealth, is a form of marriage payment in which the bride's group receives a payment of goods, money, or livestock to compensate for the loss of a woman's labor and the children she bears. These exchange relations between families may persist over many years and in some societies constitute the chief means for the circulation of wealth. In these situations, marriage is a corporate enterprise in which a;;control over prestige valuables is exercised by an older generation of men. Marriage payments are thus a way of establishing and securing alliances and for allocating women's labor power and fertility.

Bride-price is not a payment for women, but rather is seen as a way of valuing the labor of women, the effort involved by the bride's family in raising the female, and the labor value of a woman's offspring. The payment is a way of securing the rights of the husband's group over the woman's children. Although women are valued in such societies, their status relative to men's is lower because it is the men who make the corporate household decisions. Often, payments are made in installments in case the couple divorces or fails to produce a child.

A cluster of variables has been identified as being associated with bride-price. It is more common in descent systems that are patrilineal, although when it is found in a matrilineal system, it is the case that the wife moves to the residence of the husband's group. Subsistence economies that are horticultural or pastoral and marked with a relative absence of social stratification also feature bride-price, and there is evidence that it is common where land is abundant and the labor of women and children contributes to group welfare.

In societies that have some type of economic transaction with marriage, bride-price accounts for almost half the cases, making it the most common form of marriage payment arrangement. Often bride-price is contrasted with a rarer form of marriage payment, dowry, which is a transfer of wealth by the relatives of the bride to her and her husband and which operates in stratified societies. It has been noted that shifts from bride-price to indirect dowry (a contribution by the groom to the bride for her use) have occurred in African society in response to shifts in economic behavior.

Bride-price is an important variable that is particularly useful for charting social change, broad patterns of cultural evolution, the economics of inheritance, and the status of women. Studies of bride-price also shed light on strategies for bargaining and negotiation because these are important dynamics in setting the level of bride-price payment that in turn is dependent on local economic conditions, such as the availability of land.

Because the transfer of wealth has implications for status and power, the study of the mechanisms and variables associated with bride-price is an important topic of study for anthropologists, demographers, and social historians. Evolutionary ecological studies have also examined bride-price because of the significance of women's labor and reproductive value to evolutionary hypotheses. In this area of study, researchers make assumptions about maximizing the material, social, or political value of the exchange.

A dowry is a type of payment or gift of property that accompanies a bride upon marriage. The custom has been most common in settled agricultural societies where it may form an important part of the financial arrangements for a marriage. The types of property included in a dowry vary tremendously depending on the economic circumstances of the families involved and the customary expectations of the society. A woman's dowry might include personal possessions (such as clothing and jewels), money, servants, or land. Societies vary in regarding a dowry as the property of the bride, her husband, or her husband's family. Where the custom exists, women frequently receive dowries in lieu of a right of inheritance from their father's estates (Goody and Tambiah 1973).

The custom of giving dowries may perform several positive functions. First, as with other common forms of marital exchange such as bride-wealth (also called bride-price), a dowry affirms an alliance between two families united by marriage. Second, a dowry may provide a bride with some protection against an abusive husband. Should she leave her husband, a woman's family may demand that all or part of her dowry be returned. Third, a young couple may use the dowry to set up their own household. Finally, a woman may need to rely upon her dowry for support should her husband die and she has no rights to inheritance. These are by no means universal functions. They are contingent on the ways that people conceive of the dowry and, especially, on whether the wife controls all or part of it.

Dowry often has a marked political dimension. In medieval Europe, noble families down on their fortunes often sought to marry their sons to women from rich families whose dowries would thus enhance their own financial situations. By the same token, a newly wealthy family could improve its social standing by using rich dowries to form marital alliances with those of a higher class. In northern India, marrying daughters upwards, using the enticement of dowries, has long provided one of the chief means for families to raise their status (by very small increments) within the rigidly hierarchical caste system, a process technically known as hypergamy. In general, the custom of dowry imposes a financial burden upon families with daughters that can be especially heavy when the family has few or no sons who might themselves attract wives with dowries.

Dowry had disappeared from most of Europe by the beginning of the twentieth century, but remains a common practice in south Asia. In India it has become a matter of some controversy and a subject for legal reform because of a large number of incidents in which women have been harassed and even murdered by their in-laws in attempts to extort richer dowries. Debate continues as to whether dowry deaths should be understood as a byproduct of the custom itself or as the result of modern conditions that have undermined the traditional connections between families brought together in marriage while inflating the cash value of dowries (Menski 1999).

---

[1] Gluckman  1969, 60

[2] Gluckman, 1969, 60

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

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

[5] Gluckman, 1969, 60

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

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

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

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

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

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

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

[13] ‘‘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’’

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