LEGAL EFFECT OF MARRIAGE

Where marriage is celebrated successfully where ceremony has resulted to valid marriage it
create some duties and right of parties to that particular marriage. By marriage become one.
Legal existence is suspended and incorporated by legal existence of husband lots of things a wife
cannot do on her own.

DUTIES AND RIGHT UNDER MARIAGE

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 anyone 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 and 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.

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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
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
proper 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

ADULTERY AND RIGHT TO COMPENSATION

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;
1. Damages should not be punitive but compensatory.
2. Damages should be actual loss depend on actual value of woman if wife is not prostitute.
3. Damage may base on peculiar loss and loss of right of consortium.

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 POSITION IN TANZANIA.

Section 72 up to 75 of LMA different tribes with different character customs and tradition should
be taken into consideration, for example among the Maasai is not a problem. For Sukuma a
number of cattle is paid. When assessing damage for adultery one must be carefully.

1. We should not impose English culture in Tanzania which have mixed culture.
2. Damages should be in discretion of the court since it is difficult to assess the same.
3. Damage is only compensatory and not punitive.
4. Damage should not be awarded if proved wife conniver i.e. consenting with the husband to
commit adultery, on either of party.
5. To condone to adultery is to keep quit with knowledge of one party being committed adultery

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
Two circumstances in which a marriage nullity may be done.

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1. Where a marriage is void
2. Where a marriage if avoidable.

Void marriage means that the ceremony did not create marriage at all. I.e. void abi initio. S. 38
of LMA whereas voidable marriage is one in which although imperfect but regarded as valid
subsisting marriage until annulled by the court of law

GROUNDS UPON WHICH A MARRIAGE IS DECLARED VOID

Section 38 provides for those grounds;
1. Where parties are of the same sex. As in Cobert vs. Cobert [1970] WLR 1306 in which a
defendant, Mr. Ash ling 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

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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.

GROUNDS UPON WHICH MARRIAGE CAN BE HELD VOIDABLE.

1. Either parties to the marriage are incapable of consummating the marriage;marriage is

consummated by first act of sexual intercourse after celebration of marriage. E.g. when a man is
impotent either part may seek this decree. Even capable as in Harthan vs. Harthan [1948] 2
ALL 644, sexual intercourse before marriage is irrelevant but never amount to consummation.
Also in Dredge vs. Dredge. [1947] 1 ALL 29.

the purpose of consummation, sexual intercourse should be complete and ordinary; it should not
be partial by artificial means i.e. full penetration in ordinary means.

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 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.

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Incapacity to consummate marriage. In W vs. W [1967] 3 ALL 178 in which a husband was able
to penetrate his wife but as soon as the penis enters, it collapse in the vagina and come out. It was
held that marriage was not consummated.

In order for petition to succeed on ground of incapacity to consummate it is important at the time
of hearing and that impotency is incurable in the sense that either it cannot be cured even if
operation is taken is likely to succeed. In S vs. S [1954] 3 ALL 736. In which a wife’s hymen
was so thick that it prevented a full penetration by the husband, the husband suggest that she
could seek medical advice but he could not take her to any doctor. Letter he went to live with
another woman and sought decree of annulment.
The issue was whether she was incapable at the day of hearing. It was held that, consummation
was improbable but due to fact that husband was living with another woman, operation was
possible to make her able to penetrate.

NOTE: ejaculation and incapacity for woman to conceive are irrelevant. As R vs. R [1967] 1
ALL 1194. It was held that there may be no ejaculation provided there is penetration,
consummation is complete.

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.
Others grounds of voidable marriage articulated under section 39 are

a. Where either party was subject to recurrent attack of insanity or epilepsy

b. Where either party was suffering from venereal disease in communicable form
c. Wife was pregnant by by some other person other than husband
d. Where there is willful refusal of one party to consummate
e. Wife was not attained the age of eighteen years and consent was obtained as required by
section 17 (decision of the recent case changes this position)