PROPERTY RIGHT BETWEEN COUPLES DURING MARRIAGE

Property relation is among legal effect of marriage

HISTORICAL DEVELOPMENT AT COMMON LAW
It is the duty for the husband to maintain the wife and wife can even sue the husband for failure
to do so. Even this duty at common law in the past, once a woman was married she was required
to surrender all her properties to her husband, since it is the duty of husband to maintain the wife,
the husband become the trustee of wife’s property

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 from 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]

THE POSITION IN TANZANIA

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

Personal property section 58 of LMA. This section recognizes the existence of separate
property of husband and those of wife. I.e. marriage does not change ownership of property
acquired before the marriage. It does not prevent spouse from owning, acquiring or disposing
property during subsistence of marriage. Abdallah Shamte vs Mussa 1972 HCD 9

Joined property; joint property of married couple includes matrimonial home and other
property jointly acquired during subsistence of marriage. Section 2 of LMA defines matrimonial
home. Matrimonial home is presumed to be under ownership of couple neither of parties can
alienate oneself without the consent of another section 59 (1) LMA the same position is

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reflected under Land Act Section 114[as amended] 2004 according to these provision if there is
not such consent from the other part in case of creation of mortgage then the mortgage will be
considered invalid in the eyes of law.

OTHER MATRIMONIAL PROPERTY

Section 60 of LMA provide for presumption of property acquired during the subsistence of
marriage if the property is in the name of husband and wife then there shall be rebutable
presumption that the beneficial interest there in are equal if it is the name of husband alone or
wife alone there shall be rebutable presumption that the property belongs absolutely to that
person whose name appear to that property.

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.

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Miriam Tumbo vs. Harold Tumbo. 1983 TLR293 Family Law - Petition for Divorce -
Requirement of reference to Marriage Conciliatory Board prior to petition - S. 101 of the Law
of Marriage Act, 1971.
Family Law - Divorce - Evidence of breakdown of marriage - Cruelty – Constructive desertion -
Adultery - S. 107 of the law of Marriage Act, 1971.
Family Law - Custody of children - Welfare of infant children - Independent opinions of
children- Age of children to be taken into account. Family Law - Division of matrimonial assets
- Meaning of work towards the acquisition of assets- Whether housekeeping is contribution to
acquisition of matrimonial assets.
The parties to this proceeding were married under Christian rites in 1958 and have seven issues
of the marriage. The petitioner sought dissolution of marriage alleging adultery, cruelty and
desertion. She also prayed for custody of the youngest five children and for the division of
assets. The respondent has cross-petitioned for divorce, alleging cruelty and desertion. He also
prayed for custody of the youngest three children.
LUGAKINGIRA J
Held: in accordance with s. 114(2) (b) of the Law of Marriage Act, 1971, the court is
required in exercising its power of division of assets to have regard to the extent of
contributions made by each party in money, property or work towards the acquiring of the
assets; housekeeping is a conjugal obligation and cannot be equated to work which refers
to the physical participation in the production of the asset itself

DISSOLUTION OF MARRIAGE.

Means bringing marriage to an end. Usually by action of court.

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 CAUSES
1. By death of either of parties; section 12 LMA,
2. By divorce granted by the court; section 12, 94 and 110.
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. Divorce is when marriage brought to an end by court
decree.
HISTORICAL DEVELOPMENT OF DIVORCE.
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 Asunder which had softer approach to divorce law.
The recommendations were as follows.
1. Instead of matrimonial offenses such as adultery, cruelty, and desertion. Should be one ground
for divorce, and that ground was that a marriage has broken down irreparably.
2. Only court to decide upon evidence under exclusive power to grant divorce.
3. The court in determine it shall look beyond the offenses committed such as adultery, desertion,
and cruelty since adultery is a sign that marriage has irreparably broken down. In its own cannot
stand but those should be other reasons.
4. Surrounding environment should be glanced at large, history and background also matter.
5. The court must carry a detailed and through inquiry to facts and cause of marriage death. Called a
social postmortem. Of marriage. A name of process ‘put asunder’
The Royal Reform Commission for consideration came about with another recommendation
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.

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2. 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.
There should be a balance e between maintenance and support and allowed to be and end only if
is inevitable.
The rationale is an individual affair, the union between two couples. Stability is a public affair.
Marriage is broken and then should be given a decent burial nothing should be done not only
couples but children too.
Dignity, decency and harmony should be a paramount important thing to consider such as
matrimonial distribution of property. .
In 1969 the Divorce Act was born due to the two prior commission, introduced marriage break
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.
In Tanzania, LMA to a greater extent based on English Divorce Act of 1969 only one ground of
divorce unlike Kenya and Uganda, that is marriage has broken down irreparable

FACTORS WHICH TO PROVE THAT THE MARRIAGE HAS BROKEN DOWN

IRRETRIVABLY. [Irreparable]. Section 107 (2) of LMA provides for this factors,
1. ADULTERY. section 107 (2) (a) in Tanzania adultery is of two different approaches, may
attract payment of damages[compensation] also can be used to prove the fact that the marriage
has broken down irreparable in Kenya and Uganda adultery stand independent ground for
divorce and the law never provide damage for adultery. No one has ever attempted to define
adultery but in Denis vs. Denis [1965] 2 All ER 51 in which the man was sexually impotent but
were caught fragrante delittle with the woman with whom he has committed adultery Mr.,

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 justice Synditone said that ‘I don’t think that adultery is proved without penetration it is not
necessary the complete sexual intercourse take place but penetration of a man to a woman is
enough to prove adultery. He further remarked that if a man and woman are attached together,
take off their apparel and lie together there will arise the presumption of adultery and in most
cases it may be difficult to rebut it but the inference can be rebutted if the man is found to be
impotent. Where the married woman is raped she has not committed adultery it can be defined as
sexual intercourse between two persons 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.
In the case of 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 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 it was held that
(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.

3 Circumstances in which adultery can be proved.

(a) Spending a night in the hotel.
(b) Visiting brothel. [DANGURO] .
(c) Conviction of bigamy.
(d) Birth of a child,
(e) Cohabitation with third party. Refer case of Mariam Tumbo v. Haroud Tumbo
(f) Venereal diseases.
(g) Confession.
However, suspicion by itself won’t suffice, the court will not act on that there must be
irresistible inference leads to adultery. It is difficult to prove for adultery. Adultery as evidence

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 of marriage broken down irreparable it does not automatically lead to divorce even where it is
proved the court must look at the circumstances of the case and look out whether the marriage
has broken down irreparable it also depends on the circumstance of each case. [adultery may be
there but marriage may be retrieved

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 woman, 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 ground the court stated ‘I have no
hesitation in finding that there was condonation, 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 vo luntarily submitted to respondent in embraces thereby registering her
forgiveness she can not now be held to complain. [Ground of adultery wasn’t accepted.
STANDARD OF PROOF OF ADULTERY.
There has been considered judicial controversy over the standard of proof of adultery. Other says
that the standard of proof of adultery should be like that of criminal i.e. beyond reasonable
doubt, the parties must be caught red handed while other says the proof should be like that of
civil case i.e. based on balance of probabilities.

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.
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 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

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 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 cruelty
also.
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 will suffice for the court
and 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 his wife and threatens
to kill her and he once strike her naked in front 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] AllER in which Lord Denning observed, married couples
have to put up with all the negations of 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 time when
defects of character or temperament may be such as to amount to cruelty but it all depends on the
facts of the case. Similarly, it is common ground to expect misunderstanding in the marriage life
which may culminate in person assaulting his or her spouse , if such incidents occur, and a
person twice assaulted ones spouse I don’t think that alone would be suffice to justify a
reasonable tribunal to conclude that the marriage vows have been torn apart beyond repaired.
The marriage bond or contract for such matter sanctity as it should not be set aside lightly in the
absence so evidence that the same has founded beyond repair.
MARIAM TUMBO VS. HAROLD TUMBO. Note that malpractices in sexual intercourse
amount to cruelty but depends the circumstances of each case. If either party is engage in
unnatural offense even with the third party amount to cruelty e.g sodomy.

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3. DESERTION: is another factor to prove marriage is broken down irreparably, courts have
declined in defining desertion however, desertion can be defined as separation of one spouse
from the other with an intention on the party of deserting spouse to bring cohabitation
permanently to an end without reasonable course and without the consent of the other spouse.
But this definition lacks some aspects since in law there are simple and constructive
desertions.
Simple desertion is physical separation where one party decides to leave the matrimonial home
without intention to come back. While constructive desertion occurs where one spouse does
not actual leave the house but he or she conducts oneself in such a way that make the other party
leave the matrimonial home. The deserted party is the one who has left the matrimonial home. 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.

There are four elements in desertion

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 is 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 establishes a 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 home. Lord Green
in this case said.’ constructive desertion therefore requires both factum and animus desevendi
(the intention to desert permanently) and an indication by the husband to the wife that she may
leave if she likes [animus] is not enough unless the conduct is such as to amount to an expulsion

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[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

BURDEN OF PROOF AND STANDARD OF PROOF ON 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 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.

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Other ground which may be considered as the marriage has broken down irreparable
under section 107 of LMA are,

a. Sexual perversion

b. Willful neglect on the part of the respondent

c. Voluntary separation or by court of law

d. Imprisonment for life on the side of the respondent or not less 5 years

e. Mental illness

f. Change of religion

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