ROBERT ARANJO v ZENA MWIJUMA 1984 TLR 7 (HC)

ROBERT ARANJO v ZENA MWIJUMA 1984 TLR 7 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Maina J

March 14, 1985

G CIVIL APPEAL 22 OF 1984

Flynote

Family Law - Division of matrimonial assets upon dissolution of marriage - Whether

court has to consider extent party has contributed to the breakdown of marriage for

the purpose of division of matrimonial assets - H Law of Marriage Act, 1971, s.114

-Headnote

This is a second appeal by Robert Aranjo. The Primary Court granted divorce and also

ordered that I the appellant should pay his former wife, the respondent, the sum of

Shs. 70,818/50 being one quarter of the matrimonial assets acquired during the

subsistence of the

1984 TLR p8

MAINA J

marriage. The subsequent appeal by the appellant was dismissed by the District Court

and hence the A present appeal.

Held: (i) Section 114 of the Law of Marriage Act, 1971 does not make a distinction for

the purpose of division of matrimonial assets between an innocent and guilty party; B

(ii) there is no provision in the Law of Marriage Act requiring the court to

consider to what extent a party has contributed to the breakdown of the marriage for

the purpose of division of matrimonial assets.

Case Information

Appeal dismissed C

Case referred to:

1. Bi Hawa Mohamed v Ally Sefu Court of Appeal Civil Appeal No. 9 of

1983; D

[zJDz]Judgment

Maina, J.: This is a second appeal by Robert Aranjo. He had petitioned for divorce at

the Kilosa Urban Primary Court against Zena Mwijuma who was then his wife. The

Primary Court granted the E divorce and also ordered that the appellant should pay

his former wife, the respondent, the sum of Shs 70,819/50, being one quarter of the

matrimonial assets acquired during the subsistence of the marriage. The appellant

filed an appeal in the District Court, and after full hearing the appeal was dismissed.

The appeal before this court is not against the dissolution of the marriage but it is

against the order F giving the wife one quarter of the matrimonial assets. The ground

for this complaint is that, according to the appellant, the marriage was dissolved due

to the wife's desertion and not on appellant's cruelty as held by the District Court.

The appellant also claims that the respondent did not contribute anything in the

acquiring of those assets. One thing, however, was beyond dispute. G All the assets

were acquired during the subsistence of the marriage.

Let me point out that the order for division of matrimonial assets was made under

section 114 of the Law of Marriage Act, 1971. The court has powers, when granting a

decree of divorce or separation, H to make an order for division of matrimonial

assets acquired during the marriage by the joint efforts of the parties. The appellant

claimed that all the assets were acquired in his own name.

But they were acquired after he was married to the respondent during subsistence of

the marriage. I The respondent was a housewife. The

1984 TLR p9

MAINA J

A appellant said he acquired those assets through his own efforts. There has been a

lot of dispute as to whether the domestic work done by a housewife should count in

the acquisition of matrimonial assets. That

B dispute was settled by the Court of Appeal in the case of Bi Hawa Mohamed v Ally

Sefu in Civil Appeal No. 9 of 1983. In that case, the Court of Appeal held that the

contribution of a spouse to the welfare of the family should be considered as

contribution to the acquisition of matrimonial assets. In this case, while the

respondent looked after the house and the welfare of the seven children of the

marriage apart from other household chores like cooking, the appellant was able to

run his business C and acquire the assets. All the assets were therefore acquired by

the joint efforts of the parties. The respondent was entitled to a share.

The appellant further argued that the District Court should have held that the

marriage was D dissolved due to the respondent's desertion and not due to the

appellant's cruelty. There was evidence that the respondent left the matrimonial

home due to the acts of the appellant and those acts were held to amount to cruelty.

Be that as it may, the marriage had broken down irreparably and it had to be

dissolved. There is no dispute about that. Now, whether the appellant was guilty of E

cruelty or the respondent was guilty of desertion, it makes no difference as regards

division of matrimonial assets. Section 114 of the Law of Marriage Act does not make

a distinction for the F purpose of division of matrimonial assets between an innocent

and guilty party. There is no provision in the Law of Marriage Act requiring the court

to consider to what extent a party has contributed to the breakdown of the marriage

for the purpose of division of matrimonial assets.

There was ample evidence upon which the lower courts held that the value of the

matrimonial assets G was Shs. 282,474. The lower courts considered and gave good

reasons for awarding the respondent one quarter of the value of those assets, that is,

Shs. 70,818.50. The respondent was not only doing domestic work. She even had

assisted in the appellant's bakery business. The marriage had lasted for many years,

from 1968 till 1982 when it was dissolved. There were seven children of H the

marriage, all living with the appellant. All these were relevant factors. I cannot say

that the lower courts erred in awarding the respondent one-quarter of the

matrimonial assets. In the result, this appeal is dismissed with costs.

I Appeal dismissed.

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A