PRELIMINARY
The Marriage Conciliation Board is a neutral third
party board, which acts as an expert mediator with experience in the marriage
matters. The function of the body is to reconcile the disputed parties and
not to separate them, when happen the reconciliation board fail to reach
reasonable solution, then the matter may be refered to court for full
litigation.
Conciliation
is an out of court dispute resolution instrument, through which parties under
dispute can seek to an amicable dispute resolution with the assistance of
a third party who acts as a neutral party. Conciliation is a voluntary,
flexible and confidential. The third party is sought for the conciliation
proceedings are known as a conciliator. The decision whether to settle depends
on the parties.
In United Republic of Tanzania, the marriage conciliation boards
established under section 102 (1) of The
Law of Marriage Act[1]
and the minister has been empowered by this law to establish marriage
re-conciliation board in every ward;
“The minister shall establish in every ward a board to be known as a
marriage conciliation board and may, if he considers it desirable so to do,
establish two or more such boards in any ward”.
Also,
where the minister is satisfied that any community in Tanzania has established
for itself a committee or a body of persons to perform the function of a
marriage conciliation board and that it is desirable that such committee or
body of persons be designated to be the Board having jurisdiction over the
members of that community, the minister may so designate such committee or body
of persons[2].
The
marriage conciliation board must consist a chairman
and not less than two and not more than five other members, the decision of
the board must be respected by the parties but if one of the party in dispute
not satisfied with decision, he/she is allowed to go ahead to other organs with
high jurisdiction like court.
ROLES
OF MARRIAGE RE-CONCILIATORY BOARDS
To settle the disputes between
parties (husband and wife), this is the main
function of re-conciliatory board, the boards of reconciliation empowered by
The Law of Marriage Act to settle the difference between husband and wife
without showing bias and with the aim to construct again the marriage and bring
them together. When a board of reconciliation fail to reach good solution and
if the parties are dis-satisfied with decision, they are allowed to go ahead
with their matter to the court of law for full litigation.
Always
when the parties are not satisfied by decision, the conciliation board must
issue a certificate to the court that, they failed to reach the good decision
and the parties may continue with their case at the court. No one can be
accepted at the court without starting at the ordinary level like BAKWATA for muslims and CHURCH BOARDS for christians.
Re- conciliatory board has a duty to
disclose all information received from one party to the other party so as to
give the other party an opportunity to present their side of the case. Some disputes arose from the secret
occupancy of properties or the issue of private properties to the couple, so,
during the proceedings, the board may ask one party or both to bring the
documents or information about a disputed issue. Most of these disputes happens
when one person in marriage, secretly occupy or own a property without the consent of another
partner, and the problem come when one partner anticipate that he/she is being
hidden from something.
The board may order partners to bring things like business
licences, or other documents before the board and the board may disclose it to
another party so as to smoothern the process to solve the dispute.
Re- conciliatory board has a duty to
invite or summons another person to attend the board sessions[3]. In some circumstances, there are other people who can be involved
to solve dispute, and the board may use it’s power to summon a person to attend
the proceedings. When a person willingly reject to attend the sessions of the
board, the board may ask from primary court a summon to be issued to call that
person and the failure to abide a court summon may result to legal punishment[4].
The summons of the board is same as of the court, it
must be clearly stated in the summon paper the names of the person or people
summoned, the place that a summoned person is to attend for board session, the
date that the session will be held and the exactly time when the session will
start and end. Those things must be stated clearly so as to avoid the mistakes
that may be done by a summoned person which may elongate the time to finish a
dispute.
To advise parties to dispute on
further steps that they may take after the failure of the re conciliation board
to reconcile them. Not
all disputes can be settled at the reconciliatory boards, some of it need the
courts of law to settle it. When happens that failure, the boards of
conciliation have to direct the parties of dispute where to go, and they have
to provide them a certificate that indicate that, they failed to reach
decision.
Without giving them a certificate of failure, it will
be difficult to access further organs of justice because, it is a law that, all
matters relating to marriage must start at the ordinary level through tribunals
and religious conciliation boards before taken to the court.
It is only allowed for a person to
rash direct to the court without involving reconciliation board in matters of
marriage when there is a serious crime committed and connected to marriage
issues, but apart from that, it is totally forbidden to skip ordinary boards
for conciliation.
DISSOLUTION OF MARRIAGE BY COURT
A dissolution of marriage is a legal process that terminates the marital
rights and responsibilities between spouses. It will substantially affect
financial and personal life. Issues commonly involved in a dissolution case are
grounds for dissolution, classification and division of assets of the spouses,
ongoing obligations to provide for a spouse after dissolution, the welfare of
any children of the marriage, and tax consequences. These materials are
intended for uncontested matters without complex issues.
Dissolution of marriage by court must be done by considering
reasonable grounds for dissolution, no one is allowed to request dissolution
without a clear problem caused by one or both spouses in marriage.
In United Republic of Tanzania, The Laws of Marriage Act,[5]
section 107 (2) (a), (b), (c), (d), (e),
(f), (g), (h), (i) provides the grounds for a spouse in a marriage to ask
court to dissolve his or her marriage.
THE ROLE OF THE COURT IN DISSOLUTION OF
MARRIAGE
A court is responsible for helping to resolve issues that have not
been resolved through mediation or by the spouses on their own. A court
must try to settle the matter first, but if the parties are reluctant to
continue with marriage, Therefore, a court will decide on disagreements of the
following issues pertaining to divorce and child custody:
Division of assets or marital property, if the parties decide to dissolve their marriage, and the court is
satisfied with the grounds for dissolution of such marriage, then, there is
things to be considered during division of properties.
Section 114 (2) (a), (b), (c), and (d)[6], in exercising it’s power, the court must
consider the following in division of properties to the spouses;
a.
The customs of the community to which the parties belong.
b.
The extent of the contribution made by each party in money, property or
work towards the acquiring of the assets.
c.
The debts owing by either party which were contracted for their joint
benefit and;
d.
The needs of the infant children, if any, of the marriage, and subject to
those considerations, shall incline towards equality of division.
Those factors may be used to divide how
much and which property a spouse should be given, sometimes the customs used in
marriage cases when the court see that it is necessary to use, and if the
parties have accepted it.
To make order for custody and maintenance of children, This is another role of the court during
dissolution of marriage, the court must satisfy it self that, the kids are safe
and secured after the breach of marriage. The court will decide about the
custody of childrens, according to various reasons, a mother may be appointed
to stay with kids especially those kids with years below seven. But if the kids
are above seven, they can choose to stay with a mother or father.
But the court may consider other reasons
include, the wishes of the parents to the infant, the wishes of the infant,
where he or she is of an age to express an independent opinion and to consider
the customs of the community to which the parties belong.
Section 125 (1) of The laws of Marriage Act[7], provides that;
“The court may, at any time, by order, place
an infant in the custody of his or her father or his or her mother or, where
there are exceptional circustances making it undersirable that the infant be
entrusted to either parent, of any other relative of the infant or of any
association the objects of which include child welfare”.
Where there are two or more children of a
marriage, the court shall not be bound to place both or all in the custody of
the same person but shall consider the welfare of each independently.
To make order for child visitation, the amount of child support and factors
around safety such as orders of protection. If the court has decided to terminate marriage, then, the court may
arrange the time when a parent whom is far from kid is suppose to attend to see
his or her son ar daughter. The arrangement of time can be made by court or by
the spouses themselves according to their schedules.
After the visitation order to be made by
court, the breach of it may result to legal punishment to a person whom willful
did or attempted to breach such order of the court.
To declare unfitness of the parent to have custody, the court has also be given the role to
declare unfitness of parent to take kids, this may happen during dissolution of
marriage or after the time from dissolution.
Section 127 (1) of The Laws of Marriage Act[8], declare that, the court may, when granting
a decree of divorce or at any time thereafter, on the application of father or
the mother of any infant of marriage, or where the father or mother is dead, on
the application of a relative of the deceased parent, make an order declaring
either parent to be a person unfit to have the custody of the infant and may at
any time rescind any such order.
Most of the marriage cases proceedings
begin at the mediation boards and if happens the board fail to reconcile
parties, then, the certificate of failure must be issued to the parties so as
to take further steps in solving their matter. Always, it is not acceptable to
rash directly to the court without passing through reconciliation boards.
BIBLIOGRAPHY
BOOKS
1.
Prennetta,
JP Jr (2000) book review ‘Family Values and the New Society: Dilemmas of the
21st Century by George P Smith, II Connecticut: Praeger, 1998’ Journal of
Contemporary Health Law and Policy 16.
2.
Richards,
MPM (1995) ‘Private Worlds and Public Intentions—the Role of the State at
Divorce’ in A Bainham, D Pearl and R Pickford (eds), Frontiers of Family Law
(Chichester, Wiley).
3.
Carbone,
J (1996) ‘Symposium: Ethics, Public Policy, and the Future of the Family:
Morality, Public Property and the Family: The Role of Marriage and the
Public/Private Divide’ Santa Clara Law Review 36.
4.
Cretney,
SM (2000) Family Law (London, Sweet & Maxwell). —— (1998) Law, Law
Reform and the Family (Oxford, Oxford University Press).
5.
Dolgin, JL (1997) Defining the Family, Law,
Technology, and Reproduction in an Uneasy Age, 1997 (New York and
London, New York University Press).
6.
Duncan,
WC (2001) ‘“Don’t Ever Take a Fence Down”: The “Functional” Definition of
Family—Displacing Marriage in Family Law’ Journal of Law and Family Studies 3.
STATUTE
The Law of Marriage Act, Cap 29
R;E 2010
The Children and Young Person
Act, Cap 13 R;E 2002
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