The legal position of the presumption of marriage and the property

right of spouses in Tanzania

MARWA, Anna 1

Abstracts

This paper tends to shows the controversial matters and its solutions in
presumption of marriage in relation to property ownership of the presumed
marriage couples and the legal position of the parties. It also shows the legal
status of the children as well as the position of the law in protecting property right
of the parties.

1. The Concept of Marriage

Marriage is one of the oldest social recognized institution and essential for the procreation of
children and satisfaction of our sexual urges, marriage also is important in social and economic
development. In different societies, there are different methods of marriage. Some of the
societies allow a male to marry only a single female whereas in other societies a husband is
allowed to have more than one wife. Similarly some societies will not allow a woman to have
more than one husband, whereas other societies will not mind a woman having more than one
husband.

Therefore, definition of marriage has always to be done according to the context one
chooses and basing on its historical origins. Precisely definition of marriage varies historically
and within cultures, and development of a particular society. However the concept of marriage
refers to the people who are in sexual relationship.2

1
LL.B(SAUT ) LL.M candidates (Economic Law ) SAUT 2013
2
www. TheFreeDictionary.com
 Marriage is variously defined, according to Canon Law 3 marriage is a conjugal
union of a man and a woman which rises only from the free consent of each spouse, but this
freedom relates to the question whether two people real wish to enter into the matrimonial
family. Canon Law recognizes marriage as the permanent and absolute sacrament, by marriage
man and wife are made one flesh by the act of God. This is due to the fact that Christians do
believe that marriages are made in the heaven as such what God has joined together, no one man
put its asunder.

According to Islamic believe marriage is a religious duty and is consequently a

moral safeguard as well as a social necessity. A marriage acts as an outlet for sexual needs and
regulates it so one does not become a slave to his desires. It is also a social necessity because
through marriage, families are established and the family is the fundamental unit of our society.
Furthermore, marriage is the only legitimate way to indulge in intimacy between a man and a
woman4.

The Law of Marriage Act 5 defines the term marriage as the voluntary union of a
man and a woman intended to last for their joint lives. From this definition three important
elements need to be examined for the validity and illegality of marriage.

First the marriage must be voluntary union, it means that where marriage is
contracted without the consent of the other party that marriage is void. To contract a valid and
recognizable marriage in the eyes of law all parties to the marriage must have given a free
consent.

Second, the marriage must be a union between a man and a woman, which means
only heterosexual union, is recognized to form a legal and a valid marriage, the marriage of the
same sex is not a valid marriage under the Tanzanian laws.

Third element is that, the marriage must intends to last for the joint lives of the
parties, if the marriage intends to exist for the specific period of time, then such marriage is will
be rendered void for the contriving this definition.
3
Paras Diwan, Family Law, 5th ed..Allahabad Law Agency.2000 at pg 25
4
www.islamawerness .net/marriage article_001.html
5
S.9 CAP 29 R.E 2002
 However the English Law also give the definition of the marriage in the case of
Hyde v Hyde6, where Lord Penzance conceived the marriage as the voluntary union for the life
of one man and one woman to the exclusion of all others. This definition gives the same
elements as those provided under the definition of the Law of Marriage Act.

Generally marriage can be defined as a voluntary contract between a man and a woman with the
intention to live together jointly for their whole life

2. Contracting a Valid Marriage

In contracting a valid marriage there some requirements need to be fulfilled by the parties
themselves. These include, the capacity of the parties, consent and the formalities must be
complies with the law.

Parties to the marriage must have capacity to conclude marriage contract, some people are totally
incapable of marrying because they have no capacity to act, such us infants and mentally ill
persons. However the law prohibit the marriage of the persons already married 7, adoptive parent
and adoptive child, relative as well as guardians and wards, these also have no capacity to
marriage contract8

In Tanzania the Law of Marriage Act9 provides for the minimum age of contracting a marriage
contract which is eighteen years. But the same law provides for the exception that a person under
the age of eighteen may conclude a contract but with the consent of her parents and the consent
of the court10.

Parties must also give their free consent before concluding a marriage contract 11, which means
there must be an agreement that the parties want to marry each other, the consent must not be
adduced by coercion, duress or misrepresentation12.
6
1866 LRIP &D 1301
7
S.15(3) ibid
8
S. 14 CAP 29 R.E 2002
9
S.13 ibid
10
S. 13(2) ibid
11
Ahmmed Said Kidevu V. Sharifa Shamte (1989) TLR 148, where it was observed that a marriage is a voluntary
union of a man and a woman contracted with the free consent of the parties.
12
S. 16 ibid
Furthermore, parties must adhere to the legal requirements of concluding a marriage contract;
both parties must be personally present at the time of concluding a marriage contract. Marriage
by proxy is not permissible. The Marriage Act require that, marriage shall be solemnized in a
church or other building which is used for religious services, or in a public office or private
dwelling house and in the presence of the parties themselves with two competent witnesses 13.
Non compliance with these requirements will render the marriage void under the law.

3. Types of Marriages

14
Types of marriage vary from culture to culture, in most European States, in US and in China
legally sanctioned marriages are monogamous, in Islamic world a man, in certain conditions is
allowed to marry up to four wives15. In most African societies polygamous marriage is permitted
in which a man could have multiple wives, thought even in such society some men have only one
wife. Polyandry is a situation where a woman could have more than one husband, in most of our
jurisdiction this is not commonly applicable.

Tanzania has two kind of marriage, these marriage either be monogamous or intended to
be monogamous or polygamous or potentially polygamous16.

Monogamous marriage is a union involving one man and one woman with the exclusion
of others, and it is prohibited under the law to conclude another marriage while it still exists. The
polygamous marriage is a union in which the husband may during the subsistence of marriage be
married or marry to another women.

This type of marriage gives the right to the husband to contract another marriage
while the other subsists. The marriage contracted under Islamic rites presumed to be polygamous
or potential polygamous unless the centrally is proved. The reason to this presumption is that,
under Islamic law the husband can marry up to four wives maximum.

13
S. 11 ibid
14
This is so common in the early of 21 st century Chinese society; thought there are some of the society till
sanctioning polygamy socially. In imperial China, formal marriage was sanctioned only between a man and a
woman, thought a man could take several concubines and the children from the union were considered legitimate.
15
See Chapter 4 of the Holy Koran
16
S. 10 ibid
 The types of marriage can also be classified into the way the marriage can be
contracted, though all these ways of contracting marriage are governed by the single Act still
they may differ in a manner they are executed. It follows therefore the marriage contracted under
customary rites is regarded as customary marriage; hence we have civil and Islamic marriage.

3.1 The Islamic Marriage

The Muslim marriage is regarded as a contract which has its own terms and conditions,
including an agreement by the parties to bring it to an end in case of incompatibility 17. There is a
rebuttable presumption that the Islamic marriage is potentially polygamy marriage unless proved
other wise.18 In Muslim law, marriage depends upon the free volition of the parties concerned, so
does its dissolution, though the wife’s volition in this regard is subordinate to that of the
husband, since the Muslim jurist subscribe to the notion that of the two partners, the husband, on
the account of the physical and intellectual superiority has to play the dominant role and the wife
is therefore subordinate to him so that she enjoys no marital freedom. 19 Therefore in the Muslim
jurisprudence unlike in the Christianity, the husband enjoys the absolute power of divorcing his
wife. The wife can successfully claim divorcing her husband only where the husband agree to
her proposal.

3.2The Customary Marriage

Customary marriages are those marriages contracted basing on the customary law requirements,
normally these types of marriages are presumed to be polygamous marriages20. These marriages
are also recognize as valid marriages for all legal purposes and make the requirement of
registration of customary marriages as mandatory but with no penalty for failure to register. This
is an achievement to protect spouses under customary marriage. The law recognizes unregistered
customary marriages as being valid and with the same protection like any other form of
marriage.

17
MAKARAMBA,R.V “Religion, Rule of Law and Justice in Tanzania”, in MUKANDALA ,R., et al (eds),
Justice, Rights and Worship: Religion and Politics in Tanzania, Dar es Salaam: Research and Education for
Democracy in Tanzania (REDET), 2006P365.
18
S.10(20 CAP 29 R.E 2002
19
DIWAN, P. Law of Marriage and Divorce, 4th edition, Delhi: University Law Publishing 2002.
20
S. 10(20) CAP 29 ibid
 The non-recognition of customary marriages may led to severe hardship to the children who are
not regarded as legitimate and to the wives of customary marriages who are not given the same
status as wives from civil marriages in matters of intestate succession and maintenance21.

3.3 The Civil Marriage

The civil marriages are those marriages contracted in the presence either to the Judge, Resident
Magistrate or a District magistrate and shall be recorded in writing, signed by the husband and
the wife and the person before whom it is made 22. These marriages are regulated by the Law of
Marriage Act of 1971 unlike other form of marriages which are regulated either by the religious
rules or by customary rules.

However the law has relief to the spouses who wish to convert their marriage from monogamous
to potentially polygamous and if the husband has one wife from potentially polygamous to
monogamously by declaration23.However this shall not be applied to Christian marriage, since
the Christian faith does not recognize the marriage of more than one wife.

4. The Presumption of Marriage

The concept of presumption of marriage is provided under S.160 of The Law of Marriage Act,
that once a woman and a man lived together for more than two years and it has proved they
acquired the rebuttable presumption of husband and wife. The idea of a presumed marriage was
introduced with the aim of protecting women who live with men for a long period of time and
bear children with them without legally being married.
Also to remedy the injustice such men inflict upon such women when the union fails. Such
women could not sue the man for maintenance and their children were being treated as
illegitimate.
The Government proposed that 24if a man cohabits with a woman for a period of more than two
years then he would be presumed to have married that woman, and if they have children such
children would be deemed to be legitimate children of such spouses as long as that man at the
time he started co-habitation with such a woman was legally capable of being married.
21
F. KAGANAS & C. MURRAY, Law and women’s rights in South Africa: An overview, ACTA JURIDICA 1-38 (1991)
22
S. 11 (2 ibid
23
ibid
24
Para 13 of GN NO. 1 of 1969
In practice, presumption of marriage is always raised when one party to such a matrimonial
relationship has asserted that there is indeed no such relationship, and the party rebutting the
presumption is required to prove that the parties have not qualified to have the reputation of
husband and wife25
However the intention of presumption of marriage is not to create another form of marriage but
rather to protect parties who have not followed the due procedure of contracting a valid
marriage26.

4.1Elements of Presumption of Marriage

In practice court has developed several and different elements that exist for the presumption of
marriage to stand. In the case of John Kirakwe v Iddi Siko27 Mwalusanya J., (as he then was)
held that, there are only three important elements to constitute a presumption of marriage:
(i) That the parties have cohabited for more than two years,
(ii) That the parties have acquired the reputation of husband and wife, and
(iii) That there was no formal marriage ceremony between the said couples.
Also the presumption of marriage to exist neighbors are given chance to spell the status of the
relation of the presumed couples, that did the relationship constitute a marriage in the eyes of the
neighbors?
Failure to prove this condition expels the whole concept of presumption even if the parties have
cohabited for more than the stipulated period of two years or upwards. The lifestyle of boyfriend
and girlfriend cannot be equated with that of a wife and husband so as to accommodate the
presumption of marriage. This was similar to the case of Charles Ruyembe v Mwajuma Salehe 28,
in this case the presumption of marriage was rebutted on the evidence adduced by their neighbor
who considered the parties as boy and girlfriends.

5. Legal Consequence of Presumption of Marriage

25
Zacharaia Lugendo v. shadrack Lumilang’oma,(1987) T.L.R 3
26
Zaina Ismail v said Mkondo (1982) T.L.R 34
27
(1989)T.L.R 215
28
(1982) T.L.R 304
According to s.160 (2) of the of the Act, if the marriage is rebutted, the woman is entitled to
apply for maintenance for herself and for every child of the union since the wife is deemed to be
a legal wife, upon satisfying the court that she and the man live together as husband and wife for
more than two years or more.
Also the same Act gives the rights to either party in relationship to maintain, custody of
children and any other relief the court is competent to give under the Act. 29 The court has power
to make consequence orders as in the dissolution of marriage or separation, including division of
matrimonial property acquired by the parties during their relationship.
However the Act is silent on whether parties living a matrimonial relationship that is
capable of being presumed as a marriage can petition for divorce, though in practice it is
common ground that parties under such a relationship cannot petition for divorce as no legal
marriage has been pronounced. This means that once a couple is living in a relationship that can
be presumed as a marriage, divorce cannot be issued, except that the presumption of marriage is
used when the court is called upon to determine whether or not the parties to such a relationship
have acquired the matrimonial status in determining their matrimonial rights upon the dissolution
of their relationship30.

6. Rights of the Parties under Presumption of Marriage

The presumed marriage once rebutted becomes a valid marriage that recognized in the eyes of
law. The rights of the parties under presumption of marriage are similar to those with the parties
under normal marriage that followed due procedure.
However the Law of Marriage Act is silent on the right of the parties under presumption of
marriage who does not have capacity to it, and those which the law considers them as a mere
concubines.

29
Elizabeth Ismail v Melikizedek Haruni(1982) T.L.R 304
30
MASHAMBA C.J(2010) Introduction to Family Law in Tanzania
Generally rights of the parties under presumption of marriage is provided for under s.160(2) 31,
that, the woman under presumed marriage has the rights to apply for the maintenance of her self
and for every child of the union as well as any other relieves such as custody of children and
division of property. The parties have no rights to partition for divorce since there is no valid
marriage at all.
Also the provision of S. 56 of the Act married women and men have the right to acquire hold and
dispose of property, whether movable or immovable and the same rights to contract, the rights to
sue and be sued in the tortuous liability.

7. Fundamental Property Rights

Property rights may be defined as a bundle of rights which describes what people may or may
not do with the resources they own32. This bundle of rights can be classified into three categories ,
namely, those which create and establish over things, those which entitle one to exercise
ownership rights and lastly the protection rights.
The rights which create and establish rights over things include those that accrue from
legal provisions which describe the manner and procedure in which one lawfully creates and or
acquires resources. They include purchasing, allocating, by the government, receiving as a gift
and inheritance.
The second category includes the rights of ownership of property, these rights give a
person the powers and authorities over the resources they are signified by the powers to sue, and
powers to dispose which includes selling and mortgage the resources.
The third category of the rights collectively refer to as the protection rights, these are those rights
that are provided by the law with an intention of providing security of the property that one own.
Property rights are among the rights which were recognized from the long time ago
and were equated to the right to liberty or freedom and even valued more than the life itself33 .
As a general rule marriage does not operate to affect the status of property ownership of the
marriages couples, the marriage does not affect the property ownership vested in each party at

31
Ibid CAP 29 R.E 2002
32
CCOTER, R and ULLEN, T (2004) Law and Economics, 4th Delhi India , Pearson Education, 77
33
BISIMBA, H and PETER M, (2005), Justice and the and the Rule of Law in Tanzania- selected Judgments and
writings of Justice James L, Mwalusanya and Commentaries,150
the time of marriage. This applies even where the spouse in matrimonial home jointly uses the
property. For example a property owned by the wife before the marriage shall remain to be her
own property unless there is an expression agreement to the contrary.
The law of Marriage Act of 1971 has been enacted to regulate the issue of property
ownership of married couples as well as to regulate the division of property when the marriage is
dissolved since property right is a constitutional right.

8. Property Rights of Parties in Marriage

The constitution of United Republic of Tanzania of 1971 34 provides for the protection of property
rights, that every person has the right to own property and the deprivation of it must be
accompanied with the duly compensation.
Under S.56 of the Law of Marriage Act the parties to marriage have he rights to acquire, hold
and dispose of the property, whether movable or immovable for the interest and benefit of their
family.
Any property that acquired during the subsistence of marriage by the name of wife or husband
shall be a rebuttable presumption that the property belong to the person who has acquired the
said property and whose name has appeared, but when the property is acquired jointly by the
husband and wife jointly, there is a rebuttable presumption that the beneficial interest is equal to
all35.
The provision of S. 61 of the Act is to the effect that where during the subsistence of
marriage, either spouse gives any property as a gift to the other, there shall be rebuttable
presumption that the property belong absolutely to the done. This presumption mat be rebutted if
there is a proof that there was an agreement to the effect that the ownership of the gift might be
retained by the donor if the done breeched certain conditions.

8.1 Separate Property Rights of Husband and Wife

The law recognizes separate property ownership between married couples36. This implies that a
spouse has the right to ownership of property acquired before the marriage or the right to acquire
or dispose the separate property during the subsistence of marriage.
34
Article 24
35
S. 60(b) ibid Cap 29 R.E 2002
36
S. 58 ibid R.E 2002
In Tanzania when he parties are engaged or under the promise to marry they may share or own
property, since the engagement dos not constitute itself as marriage the property will not be
considered as the matrimonial assets rather should be directed to each individual. The separate
property of husband and wife is not subject to division as the matrimonial assets when the
marriage is dissolved

8.2 Matrimonial Property Right on the Death of the Other Party

Woman and men have equal rights to hold property acquired during the subsistence of marriage
as the matrimonial property. If the man has two or more wives they as such enjoy equal rights
and are subject to equal liabilities in law37.
The term matrimonial property or assets acquired during the marriage shall include
properties acquired before the marriage by the either of the parties which have been substantially
improved by their joint efforts38.
Oregon’s domestic relations laws provide that any assets acquired during a marriage, including
appreciation of pre-marital assets, are considered to be marital property. This is generally true
regardless of how title is held.
Marital property is presumed to be owned equally by both spouses unless one spouse
can prove otherwise. Thus, upon dissolution, each spouse would receive an equal share of the
asset.
For example, if you owned a closely-held business prior to marriage, this asset would be
considered a premarital asset and not be subject to distribution39.
However it the law that once a person dies his estate must be wound up and assets
inherited and liabilities settled. Such estate must be closed with heirs get their share of the estate
and creditors if any being paid.40
In Tanzania there are two categories of devolution of the deceased property which
include, devolution where the deceased leaves a will and where the deceased leaves no will
(Dies intestate)41

37
S. 57 ibid
38
S.114(3) ibid
39
www.buckley-law.com/article/marital-property-whats-mine-is your-may-not be the -case
40
Simon Mlelema v. Ningistiiwa Kachwele ( 1989)TLR
41
Mashamba C.J Op.cit
9. Devolution of Property by Will
In Tanzania a person of a sound mind may make will disposing his property as he wishes to
distribute to the heirs. A valid will must be attested before the wife or wives and at least two
people of whom one must be a relative of the deceased42. Failure not to adhere this, the will be
declared defective and the deceased will be taken to have died intestate and the administration of
his property is to e done in accordance with the law applicable law.
Under Rules 19 and 2043 require that the will of the illiterate person must be witnessed by
minimum of two clan members and two non- clan remembers44.
Therefore a wife will have to acquire the property of the deceased husband in accordance with
the will written by the deceased person.

9.1 Devolution of Property on Intestacy

When a spouse dies intestate, the law provide that, after the payment of debt and other expenses,
an administrator of administratrix appointed by the court under section 33 and 34 of the
Probable and Administration of Estate Act, must distribute the property according to the rule of
intestate succession provided for tin the law, amongst the hairs include the surviving spouse,
children and dependant of the deceased.
However the right of the childless widow to a share in a property of the marriage is not
contingent upon any consideration , but is one secured if the statues 45

10. Right of the Children in a Presumption of Marriage

Every child has the right to grow to adulthood in health, peace and dignity. Young children are
vulnerable and dependent on adults for their basic needs such as food, health care and education.
Ensuring the rights of the children to health, nutrition, education and social emotional, emotional
and cognitive development is imperative for every country and entail obligations for every
government. Ensuring that children enjoy fundamental rights and freedoms not only advances a
more equitable society but fosters a healthier and more literate in due course.

42
George A v. Mmari and Anande A. Mmari(1995) TLR146
43
Local Customary Law ( Declaration) No 4 Order 1963
44
Abdul Sadiki v. Wilfred Rutakunikwa(1988) TLR
45
Rule 77 Customary Law Declaration Order G.N 279 of 1963
Generally children rights are closely tied to women’s rights even before being a child’s survival
and development is dependent on the mother’s heath and opportunities. Women are the main
care giver of the children, to ensure children enjoyment of human right.46

10.1 Rights of the Children Born Out of Wedlock

In Tanzania under customary law regime, claim for the maintenance of a child born out of the
wed lock can stand only if the said child was legitimized before it was weaned according to the
rule 181 of the Local Customary Law Declaration Order of 1963.47
The law makes its mandatory that, once a woman declares the particular man as
responsible for her pregnancy, she cannot after ward be held to represent otherwise 48. This
customary rule of family law requires a putative farther to make payment either monetary or in
kind to the mother in order to legitimize a child. After the child has been legitimized has the right
to inherent his father’s properties by his name.

10.2 The Rights of a Child Born out of the Cohabitation without Marriage
The principle regarding custody of the children born out of wedlock under customary law is
regulated by the law of the Persons, which requires legitimization of such a child before it is
weaned. In the case of Zaina Ismail v Said Mkondo49 it was held that, respondent was not
lawfully married to the appellant hence the child born was illegitimate , the respondent could
have legitimated the child before weaned under Rule 181 of G.N no 279 of 1963. Where the
respondent has not done and it is too late in the day now for him to claim this child from the
appellant.
The child born out of the wedlock under the customary law has the absolute right by her mother;
the mother has absolute right to custody of the child born out of the wedlock.50

11. The Law of Marriage Act and the Presumption of Marriage

46
KAMULI R.(2012) Human Rights Law Global, Africa and Tanzania Perspectives
47
Popularly known as the Law of Person G.N No 279 of 1963
48
Per Lugakingira , J. (as he then was) in Sareh Malongo v William Vahaye (1993) T.L.R
49
(1985) TLR
50
Festina Kibutuv Mbaya Ngajimba(1985)TLR 42
The Law of Marriage Act does recognize the presumption of marriage as a valid marriage51.
The same law requires that for the presumed marriage to have the force of law it should be
registered so as the party be recognized under the law, failure to register marriage as required by
the law render it null ad void52.
However the Act is not clear with the proper meaning of the presumption of marriage since it
require the registration of that marriage as a condition, the presumed marriage is that kind of
marriage which does not follow the due procedure require by the Act 53, why does the law require
the registration of marriage since it recognize long cohabitation of parties as married couples.
Requirement of registration mean the proper procedure of contracting valid marriage is properly
followed hence it removes the clear meaning of the presumption of marriage54.
Furthermore, the Law Reform Commission of Tanzania on the Law of Marriage Act
of 1971 shows that, Section 160 is superfluous and contradictory to the whole spirit of the
marriage institution as promoted by the LMA of 1971. The presumption of marriage diminishes
the sanctity of marriage institution and a mockery those who marry according to established
rites, religious or otherwise.
Also Commission shows that the section has raised number of issue of interest such as
misconstruction of the section itself. The courts have been mixing up when interpreting section
160 and sometimes came out with disastrous results. The centre of the confusion is the statement
appearing at the end of section 160(1) “Where duly married” The problem is clearly
demonstrated in a High Court decision in the case of;
Francis leo vs Paschal Simon Maganga55 The first point that comes very clearly out of sub-
section (1) is that this section does not automatically convert concubines into wives at the end of
two years or more of cohabitation. All that this section does is to provide for a presumption
which is rebuttable, that such people were duly married and this being duly married surely must
refer to the form and procedures for marriage provided for under the Law of Marriage Act.
Therefore, all that is required to rebut the presumption is to establish
that the two never went through a ceremony of marriage recognized under Act. Once this is

51
S.160 CAP 29 R.E 2002
52
S.41(f) ibid,
53
Francis Leo vs Paschal Simon Maganga(1978)TLR.n.22
54
Advocate Muna of Muna & Co advocate, the interview conducted on 25th February 2013
55
(1978) TLR.n.22
established the two can no longer be regarded as husband and wife even if they have lived
together for hundreds of years.
Save for the fact that this provision does not automatically convert
concubines into wives at the end of two years or more of cohabitation.
It is the opinion of the Commission that, the construction of S. 160(1) of the LMA, 1971 is
erroneous. This construction does not take into account whether or not the cohabitants are
capable of getting married to each other in terms of the LMA, 1971
Further it legalizes illicit cohabitation between a legally married husband and wife, that is to say
a woman who cohabits with some other woman’s husband for two years or more gets the
protection envisaged under section 160 according to this interpretation.
The second problem comes out of this provision is whether or not the protection accorded
extends to women who cohabit with men who are incompetent to get married with such women.
This provision does not protect women who cohabit with men who are incompetent by subsisting
monogamous marriage with another woman or in any other way provided for in the Act, More
often parties who lived together under circumstances provided for under section 160 do find
themselves in a bureaucratic tangle where they are asked to produce evidence of marriage and
they happen to have none.
There is no provision in the law for issuing of any form of document to signify parties living in
such relationship. The law should do so even for the limited purpose.
However, what is happening in recent years is that, courts have assumed
jurisdiction under section 160(2) to distribute a couple's property even in cases where parties had
no initial capacity to contract a valid marriage. Some have alluded to the jurisprudential
difficulties of extending this section to cohabitants who lack initial capacity to contract a valid
marriage.
I’m of the view that, this interpretation is unfortunate, because those who, on a
correct interpretation of the section, are excluded from being protected by the section. These are
the persons whose protection was originally contemplated. The basis of my argument against a
wide interpretation of section 160 is that, it seems absurd that the LMA should presume the
existence of a marriage relationship, which it specifically prohibits and which is also renders
invalid if formed in contravention with its provisions56.

56
Rwezaura B, 1995 University of Louisville, Journal of Family Law
12. The legal protection of property right of spouses under presumption of
marriage
The Constitution of United Republic of Tanzania of 1977 as amended recognize the right to
property, that every person has the right to own property and must have the protection of that
property57.
The right to property has also been construed in many international instrument of protection of
human of human. In most of these instrument the right to property has been construed in a
manner that does not entail positive fulfillment of the right by the respective states, most of
international human instrument provide for circumstances under which the state allowed
derogation from its obligation to provide protection of property.
However these instruments do not provide for the right to property rather they
provide for protection of property, which means which means one has to earn the property first
and then get protection and the right to peaceful enjoyment of that property.
Taking example under Universal Declaration of Human Rights 58, provide a similar declaratory
terms like article 24 of the Constitution of United Republic of Tanzania , that everyone has the
rights to own property either alone or in association with others and prohibit arbitrary
deprivation of the same59.
The rights to acquire and own the fixed property between men and women
remain a huge gap. The Convection on Elimination of all Forms of Discrimination against
women of 197960, require that state parties to take all appropriate measures to eliminate
discrimination against women in all matters pertaining to marriage and family relation to ensure
the basis of equality of men and women.
Moreover state parties are required to take purposeful measures including
the modification of legislations to abolish the existing laws that constitute discrimination against
women. The Convention requires the state party to take appropriate measure to curb
discrimination against women in rural areas61. Tanzania being the state party to the Convection is
required to take positive steps to eradicate customary practices which discriminate women.
57
Article 24
58
Article 17(1)
59
Peter .CM(1970),Human Rights in Tanzania Selected cases and Material
60
Article 16
61
Article 14
Generally marriage does not exist to effect ownership of property of the spouses. The spouses
have equal rights of ownership during the subsisting of marriage and during the dissolution of
marriage62. The Law of marriage Act also recognizes ownership of property between married
couples, and the rights to dispose of the matrimonial property63.
Generally parties under presumption of marriage are not clearly protected under the Law of
Marriage Act, what the law proved is the protection of the matrimonial property 64. There is no
clear provision which provide for the protection of property rights of spouses under presumption
of marriage.
What has been happening in recent years however is that courts have assumed
jurisdiction under section 160(2) of the Act to distribute a couple's property even in cases in
which parties had no initial capacity to contract marriage. Some have alluded to the
jurisprudential difficulties of extending this section to cohabitants who lack initial capacity to
contract a marriage65.
The Interpretation of section 160 seems to have absurd since it is not clear and straight forward.
But once the presumption of marriage is rebutted the law presumes it as valid
marriage hence the couples are protected as the normal couples under the valid marriage 66.
However when the court proves that there is no marriage between the cohabitants the law
requires the parties to claim for the property acquired individual since there is no marriage at all.
The court will grant the right in accordance with what the individual has contributed to acquire
such property.
The case of Joseph Sindo v. Pasaka Mkondola , the provides the latest evidence
that courts are reluctant to turn away applicants where majority are women who seek the
remedies that section 160 of Act allows marriages to be properly presumed.
This case came to the High Court as a second appeal from the district court.
The Court had to decide two main issues. First, the court had to determine whether the lower
court had jurisdiction to dissolve a relationship of courtship (i.e. cohabitation outside marriage),
and second, it had to decide whether the court had jurisdiction to order the division of property
the parties acquired during their cohabitation.
62
Article 16(1) Universal Declaration of Human Rights
63
S. 56 Law of Marriage Act R.E 2002
64
S.2 and S.58(1) Cap 29 R.E 2002
65
Rwezaura B(1995) Building a new Family law out of a Plural Legal System
66
Advocate Muna, on interview hold on 25 February 2013
 The appellate judge answered the first question in the negative, noting that because
the parties merely had lived in concubinage and were not married, the court had no power to
dissolve their union. Concerning the second question, the court held that section 160(2)
authorizes courts to order division of property where it has been proved that both man and
woman have contributed to the acquisition of such property.
The significance of this decision and other similarly decided earlier cases is that
the post divorce remedies available to married couples now have been extended to cohabitants
and their children. This is a spectacular development of the law made outside Tanzania. In this
respect, Tanzania law has been reformed well ahead of countries such as Britain, where despite
the social acceptance of non marital cohabitation, courts have no power to make property
orders in favor of such couples67.
However when a marriage ends or couples separate, the properties that they have
must be divided. Women and men may bring their own property into a marriage. They may also
acquire or improve property together while they are husband and wife. It is important to
understand women’s property rights in divorce and separation. It is common for women to lose
property in divorce even if it was their personal property or they contributed to it because many
cultures and traditions say that only men can own property, or they limit the properties that
women can have68.
Under the Law of Marriage Act 69, the court is given power to order a division of
any property which was acquired by the spouses during the lifetime of their marriage. The
matrimonial assets that are subject to the division are those which acquired during the existence
of marriage and through joint efforts70.in other words the property acquired before marriage are
not subject to that division for they are not matrimonial property.
In exercising this power the court should consider the customary law of the parties, with the
consideration of this it shall be the duty of the court to divide the property equally and without
any discrimination71.

67
Rwezaura B, Op cit
68
ICRW, Property Rights in Marriage and Family, icrw.org/files/property-Rights-and-Gender A- Training Toolkit-
Property-Rights-in-marriage-and-Family.Pdf
69
S.114 Cap 29 R.E 2002
70
S.114(1) Cap 29 R.E2002
71
.114(2) ibid
 Today court recognize domestic service as the contributions towards the acquisition
of matrimonial assets, this principle was developed in the land mark case of Bi. Hawa Mohamed
v. Ally Seif 72, In this case it was held that, since the welfare of the family is essential component
of the economic activities of the of a family man and a woman, it is proper to consider
contribution by a spouse to the welfare of the family as the contribution to the acquisition of
matrimonial or family assets.

13. Position of the Children of Presumed Marriage

There are different positions on the children of the presumed marriage. There is normally no
problem when the parties have presumed to be dully marriage as the children with no doubt will
be regarded as the legitimate children 73. The contradiction arises when the presumption is
rebutted. High court judges have been disagreeing each other on the position of the children of
74
the presumption marriage. In the case of Charles Ruyembe v Mwajuma Salehe the court point
out that where the presumption of the valid marriage has been rebutted under the law of Marriage
Act, the children of the association are illegitimate in the sense that the marriage never exist in
the eyes of the law from the beginning hence the children should treated in the same way.
On the other hand, there is argument that children of the rebutted presumption of
marriage should be deemed legitimate and should not need any legitimatization. 75 The judges
stated that the children are legitimate and there is no need for legitimization on the sense that, the
S.160 (2) of the Act give the new right to the parties to apply for maintenance custody of the
children and any other reliefs despite the fact that that marriage was formed un procedural as
stipulated under the Law of Marriage Act.
However in practice, the children of the rebutted presumption of marriage are deemed to
illegitimate children and unless measured has been taken to legitimize them under customary
law, either through paying some amount of money or payment of dowry76.
If there is no efforts don to legitimize such children they will continue to be illegitimate children
with no rights to inherit from their further’s property rather from their mother.

72
(1983) TLR 32
73
Ntemi N.Kilekamajenga, journal on Family Law
74
(1982) T.L.R 304
75
Seif v Amina Rajabu(1986) T.L.R 221
76
Franscis v. Paskali Magaga (1978) 22. Also the interview holds on 21 February 2013 with Magau Pascal the
primary court magistrate of Serengeti District.
14. The Perception of the Society towards the Presumption of Marriage
Today presumption of marriage seems to attract many people particular youth since they tends to
live together without being duly married to each other fearing cost of the marriage ceremony.
On the other side the religious believers are against this type of marriage, the parties to this
marriage are regarded as adulterers.77
Religious leaders have criticized it as promoting sinful cohabitation between unmarried men and
women. If the state wishes to protect interest of children born out of such relationships they
should not enact a law to facilitate such protection without referring the sinful relationship
between men and women as a marriage for the limited purposes78.

15. Conclusion
The presumption of marriage under section 160 of the LMA is an unnecessary encroachment of
the sanctity of marriage and contrary to idea of the Law of Marriage Act, 1971. This provision
has no place here. Cohabitation should never be mixed up with issues of marriages. Defacto
arrangements may be considered elsewhere such as in Affiliation law and not in the LMA .am of
the views that section 160 should be deleted from the Act, there should be another Act which
will clear explain in detail on the issues of the presumption of marriage, since the presumption of
marriage based on morality and not on the law.

77
Hoka Mbofu v Pastory Mwika (1983) 286
78
The Law Reform Commission of Tanzania Report on the Law of Marriage act, 1971