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Family Law Notes in Tanzania - Mkundi Legal Service
Family Law Notes in Tanzania - Mkundi Legal Service
family law
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;
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.
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Note; even if wife conceived from another man that child belong to the
husband.
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.
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
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of the decease
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.
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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
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
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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 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
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
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 thenotorious character or the disease which
can cause trouble to the family [s.20]
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If there is objection the marriage can not be conducted, but it will be dismissed.
If there is no objection it will be conducted
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]
CUSTOMARY MARRIAGES;
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.
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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.
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.
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.
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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
1976unreported. 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
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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
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.
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;
POSITION IN TANZANIA.
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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.
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
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
inAlhaji 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. InRamadhani 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.
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
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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.
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.
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]
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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
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.
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DISSOLUTION OF MARRIAGE.
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.
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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.
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 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.
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Marriage is broken and then should be given a decent burial nothing should be
done not only couples but children too.
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.
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.
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
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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]
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 crueltyalso 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
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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
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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
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.
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
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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.]
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 Hasanithe 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
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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.
ISLAMIC DIVORCE
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.
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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.
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;
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(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;
There are two aspects the division of matrimonial property and the custody of
children.
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
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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;
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.
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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.
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
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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.
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
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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 14th Edition
[12] Pope Paul VI. Encyclical Letter, July 25, 1968, 5
[13] Concise Law Dictionary 3rd Ed. 2006
[14] Osborn’s Concise Law Dictionary 8th 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
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THE LAW OF MARRIAGE ACT, Marriage, Divorce, Polygamy & family law notes in tanzania
TANZANIA Wife Obedience in Tanzania
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To my knowledge you are a very good lawyer. That's why I want a solution from you.
My grandfather wrote me a piece of land but I did not reject the land.
About fifteen years later, my cousins want to share in that land.
What should I do now? I hope you will try to solve my problem.You may like this post on
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