Rebeca Z. Gyumi Vs. AG Tanzania Civil Cause No.

5 of 2016

FAMILY LAW

It deals with how people enter into marital contract as per the Law of Marriage Act of 1971.
Law of succession i.e. Islamic law of succession; customary law of succession, statutory law of
succession.

WHAT IS MARRIAGE?
Marriage can be defined under the Law of Marriage Act s.9 as ‘a voluntary union of man and
woman intended to last for their joint lives;

Therefore, there could be no temporary marriage. Monogamous marriage is the union of one man
and one woman. In exclusion of all others. S.9 (b) i.e. marriage under Christian religion.

In. Hyde vs. Hyde P&D 133. Is a British Landmark case which established the common law
definition of marriage. Lord Penzance pronounced, "I conceive that marriage, as understood
may for this purpose be defined as the voluntary union for life of one man and one woman, to the
exclusion of all others

Polygamous marriage is a union which a husband may have more than one woman. S.59 (3)

Polyandry is where woman get married to more than one man and it is very rare to African
societies.

Marriage is God’s plan since if it was there could be no peace in this world.

The right to find a family is among the fundamental human right.

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FORMS OF SOCIETIES.
PATRILINIAL SOCIETY is the one where a husband plays a predominant part as far as the
home is concerned. It is the rule of the father. In this case the husband plays a predominant role
in the family in Tanzania this type of the society forms 80% of the families, in England for
instance till the year 1992 woman had no say to her husband for instance the husband was free to
demand sexual intercourse from his wife at any time wherever he want. . Also it the right of the
husband to beat his wife without counter resistance. It was the position in Tanzania also prior to
enactment of the Marriage Act. In which the action is the criminal one as provided for
under Section 66 of the Law of Marriage Act.

MATRILINIAL SOCIETY as opposed to patrilineal society are the ones in which women are
playing the predominant role as far as families are concerned they form 20%in Tanzania
societies like mwera, makua, zaramo, kaguru, luguru, kwere, makonde, wakwaya, kutu, tunda,
zigua, doe and kulu. Other societies who were matrilineal who later moved to patrilineal are the
wapare, wasambaa and wadigo. Other was patrilineal societies with element of matrilineal
society such as sukuma. In most matrilineal societies man moved to women family as far as
marriage is concerned. In this case women were powerful children also inherited from their
mother lineage. Since it was matrilineal societies children inherited from maternal parents. The
bride price of children born out of matrilineal society went to their mother’s family.

THE TREND OF COLONIAL JUDGES ON AFRICAN MARRIAGE CASES.

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 woman which is intended to last for life. 3
essential elements is concerned i.e. The marriage is voluntary act; the marriage is of two people

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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 pieces 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 we have to regard 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 misnomer 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

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local circumstances when comes to the case of natives i.e. the customary law and Islamic law
applicable at that time.

POSITION OF COLONIAL JUDGE ON ISLAMIC MARRIAGES

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 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 Tanganyika was a problem of Asiatic marriages especial for those non-Christian Asians since
Christian were recognized under the Christian marriage. In the case of Fatma Bacho vs.
Majothi [1946] TLR 163 the court said that it has no jurisdiction to entertain cases arise out of
non-Christian.

THE UNIFICATION OF FAMILY LAW

In order to ensure the situation left by the colonialists maintained, there has been a need for
unification of the laws relating to family law ie customary and Islamic law

In 1969 the government issued white paper number one [1]where it was recommended that
one family law should be enacted whereas this law try to recognize different system of
marriage such as Islamic, Christianity and customary marriage. And ultimately in 1971 LMA
was enacted.

Hence Christian marriage is similar to Hyde case was recognize though Islamic and customary
marriage was still there.

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 THE NATURE OF MARRIAGE IN TANZANIA

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

Prior to marriage there are things to be taken into account.

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 any 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 the
notorious character or the disease which can cause trouble to the family [s.20]

If there is objection the marriage cannot be conducted, but it will be dismissed. If there is no
objection it will be conducted

The forms of ceremonies.

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 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]

RELIGIOUS MARRIAGES; [Christian and Islamic]

1. CHRISTIAN MARRIAGE; [RC. PROTESTANTS, PENTECOSTALS] For the RC church

the marriage is monogamous and it is among those seven sacraments, where it is believed to be
witnessed by God. For this reason, the marriage is insoluble to death they never recognize the
divorce. The same to Anglican Church, and for protestant like Lutheran it is a covenant, the two
people enter into a contract, they actually enter into it before God. It is monogamous marriage
the church never accept divorce. Even if the divorce decree is entered by court of law the church
will not recognize it. Hyde vs. Hyde.
2. ISLAMIC MARRIAGE; For Muslim the marriage is voluntary union between the woman and
man or woman and man it is polygamous but should be not more than four, for Muslims there is
a room for divorce if there is trouble in marriage. Apart from those two elements it shares
features like a marriage for life.
. NOTE though Muslim are allowed to marry four wives, but in order to do so, they must show that
they are capable of maintaining all the wives. Also he will treat them equally and fairly. Also
right of sexual intercourse. CASE; Bashford vs. Tully [1971] HCD 76

CUSTOMARY M ARRIAGES;

It only mentioned the Law of Marriage Act, but it is not well articulated, it is the ward
executive officer and divisional executive officer who can register marriage. It is celebrated
according to custom of a particular community; it must be recognized by customary law. It must

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take place among the people who observe that particular custom. Impliedly customary marriage
is mostly conducted in villages.

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

PRESUMPTION OF MARRIAGE [provided for under s. 160 (1) of LMA]

If a man and women have lived for two years, it is presumed to be a marriage. Under common
law it is ‘called a common law wives’ they normally look for extent of period i.e. how long. The
practice developed on Tanzania where couples have lived for several years, when the man is
tired can separate. The presumption is based on his cohabitation for two years or more and the
husband has gained the reputation to be a husband and a wife. [Depend on how the neighbor
regard the two couples] this does not apply automatically it is only applicable where there is a
dispute i.e. marital problem between two parties it was there to protect women. On issues of
inheritance. If the husband has died and the relative don’t allow the woman to have inheritance.

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.

HOW DIFFERENT JUDGES INTERPRETES THE SECTION 160 OF L.M.A OF 1971.

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

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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.

Yonathan Guandengo vs. Constant. Daniel [1994] in this case man applied to court to be
declared a husband to his wife, by virtue of local cohabitation but mainly he wants a share of
wife’s’ house. It was held that presumption could not arise where there is no marital problem.

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 subsisted marriage [monogamous] and decide to marry again the second. The
cohabitation would be for their own peril.

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