Professional Documents
Culture Documents
P Nyalusi 2009
TUMAINI UNIVERSITY
CLASS NOTES
Definitions
The term Family is of a limited legal significant.
Lowe & Douglas summarises the meaning of family to imply a basic social unit
constituted by at least two people, whose relationship may fall into one of three
categories 1;
Other meanings
1
Lowe. N & Douglas. G, (2007),Bromley’s Family Law, 10th Ed, p 1
2
Ibid
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that are rebutably presumed to exist between married couples, that would be
enough to establish a family relationship’’
Marriage definition
Marriage is defined under s 9(1) of the Law of marriage Act Cap 20 of 1971 (R.E
2002) LMA as a voluntary union between a man and a woman/ women intended to
last for their joint lives.
In the landmark case of Hyde v Hyde (1866) L.R 1 P&D 130,133 the court by Lord
Penzance, was of the view that’’...[M]arriage as understood in Christian dome may be
defined as the voluntary union for life, of one man and one woman to the exclusion of
others’’
In Munro v Munro marriage is defined as a bond between two persons and does not
recognise a third party.
Kinds of marriages
Under s 10 the LMA marriage is of two kinds;
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There are forms under which marriages may be celebrated these include the
following;
o Islamic marriages; these are marriages that are contracted in the manner
recognised by Islam or by any school or sect of that faith s 25(3) (a) LMA.
They are registrable under s 43(3) of LMA. These are marriages
contracted between a man and a woman who profess Islam or
Mohamedan law.
It is intended to last for the joint lives of parties but divorce is
recognised.
Muta marriage is not recognised under the LMA, these are marriages
for specific time.
Marriage may be conducted by proxy, the wife need not be present
during the marriage celebration, usually the brother of the bride will be
present and the sheikh or Kadhi will ask the prospective husband if he
agrees to+ marry the wife for a specified bride price. This is recognised
by s 38(2) of the LMA.
The bride price is the property of the woman and parents have no
saying on it.
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o Hindu marriages; these are marriages that are contracted between parties that
are of Hindu beliefs.
The provisions that apply to Christianity and Islamic marriages also
apply to these types of marriages.
o Civil marriages; these are the kind of marriages that are contracted in civil
forms.
They are supervised by either District Commissioner’s office or
District Registrar.
They can be monogamous, polygamous or potential polygamous.
If parties did not specify during the marriage contract, whether the
marriage is polygamous or not, it will be presumed that the marriage is
polygamous until it is rebutted. This is provided under s 11 of LMA
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Other forms of marriages (these were common under pre capitalist societies)
o Sororate marriages; this happens when two sisters are married to the same
man. This may be as a reward to an examplanary son in law for a specific
reason eg when the sister is barren.
o Ghost marriages; this is atypical case where a man dies before he reaches a
marriage age or puberty or before attaining a wife, one of his brothers marries
in the name of the deceased brother, the issues of the marriage will belong to
the deceased brother and will bear his name.
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The young girl has no say in choice of a partner. The barren woman
will consider the young woman as her daughter in law.
The issues will have a status of grandchildren. If a child is born and he
is a boy he will get a bull (Nzagamba) and if it is a girl then she will
get a calf.
o The only and important evidence that there exist a marriage is the marriage
certificate which is issued by the registrar of marriage office.
See Ahmed Ismail v Juma Rajabu [1985] TLR 204
Family Law
Family Law is defined as the law regulating matters related to family relationships
such as marriage, personal and property rights as between husband and wife, matters
of succession, separation and divorce and other matrimonial reliefs. This is provided
for in the preamble to the LMA.
The Law that governs family matters in Tanzania is The Law of Marriage Act No. 5
CAP 29 of 1971 (the LMA)
Prior to the enactment of the LMA there were number of piece of legislations that
governed matters of family (i.e. marriage, separation, divorce, property rights e.t.c.)
o Customary marriages and matters incidental to it were governed by customary
laws. This was provided for by s 11 of The Judicature and Application of
Laws Ordinance (JALO- now JALA) Cap 358 No. 57 of 1961(R.E 2002] as
amended by The Magistrate’s Court Act of 1984.
o Islamic marriages were governed by Islamic Law especially the Quran
o Christian marriages were governed by the marriage Ordinance Cap 109 and
the Matrimonial Causes Ordinance Cap 364.
The coming into force of the LMA meant the repeal of the then existing laws
governing family matters. S 163 of the LMA expressly provides that those legislations
will no longer be applied especially to matters that are provided for by the LMA. The
LMA provides for all the forms of marriages in other words the LMA harmonises all
the types of marriages
o In the case of Mohamed Ndwata v Hamisi Omary [1988] TLR 137 s 3A of
JALA. Was cited with approval that ‘’notwithstanding the provisions of this
act the rule of customary law and Islamic law shall not apply in regard to any
matter provided for in the law of marriage act 1971’’. The old laws are
superseded in accordance with s 71 of the LMA
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Remedial role
3
Ibid p2-3
4
Ibid p 4
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and the law of interstate succession is essentially a part of family law, this law
provides for the division and distribution of a deceased person’s property amongst his
heirs5.
Relationships and matters of marriage were under clans and heads of family. The
societies applied customary law depending on the customs of a given society.
Marriages were usually celebrated by elders or chiefs or heads of family. Families in
pre-capitalist societies were mainly polygamous, there are various reasons that were
advanced for this fact some of these reasons are as follows; (importance of
polygamous)
5
Ibid
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Article 18(1)(2) of the Charter of People and Human Rights provides that family shall
be the natural unit and basis of society. Hence every state that is signatory to the
chatter is required to must protect this unit by taking care of physical health and
morals. The state shall also have the duty to assist the family.
o The breach of contract to marry occurs when one of the parties does not
implement what was intended (the marriage). The breach may occur
even if the date was not fixed and it was just said that it will happen ‘’in
the near future’’ it will be implied that means soon.
6
Ibid Lowe N & Douglas p 43
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Tshs 2500 for damages and compensation for food and drinks he
prepared. The court held that, both the bride and the groom knew that
they had a right to say yes or no in front of the priest.
The section specifies that no action will lie against a party who
was below eighteen when the promise was made.
Parties must actually know that they are entering into the
contract to marry. The doctrine of estoppel does not apply in
these contracts.
Misrepresentation
Fraud
Mistake
Duress
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7
Bromley’s Family law, p 39
8
Ibid
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o Customary marriage
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Marriage certificate
When marriage is contracted in any form then the person
contracting that marriage must complete in duplicate a
marriage certificate in the prescribed form and sign and
cause the parties and the witnesses to sign and hand one
copy to the parties and retain the other copy. This is
provided by s 33 to the LMA.
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Conversion of marriage
Duration of marriage
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By a decree of annulment;
By a decree of divorce; or
Presumption of Marriage
If a man and a woman live together for a period of two years or more, as a
manner of a husband and a wife and the hold themselves to be so and they
have gained themselves a reputation of married couples, there will be a
rebuttable presumption that they are married. This is provided for under s 160
of the LMA.
The burden of proving that they are not in fact married lies on the
person who needs to rebut the presumption. In Rafael v Mongula
[1975] LRT 42 the court was of the view that ’’where a man and a
woman have lived together in the circumstances that leads the outside
world to believe that they are husband and wife, the party denying that
must come out with evidence’’.
Upon application made either by the woman or the man, to grant such
other reliefs, including custody of children, as it has jurisdiction under
this Act to make or grant upon or subsequent to the making of an order
for the dissolution of a marriage or an order for separation, as the court
may think fit, and the provisions of the LMA which regulate and apply
to proceedings for, and orders of, maintenance and other reliefs shall,
in so far as they may be applicable, regulate and apply to proceedings
for and orders of maintenance and other reliefs.
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Held:
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Validity of marriage
Certain consequences flow from marital status that being a case it is necessary
to establish whether a valid marriage exist. There are two methods to be used
when the question of validity of marriage arises, viz the grant of a declaration
of the status and a decree of nullity9.
9
Bromley’s Family law, p 67
10
Ibid
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Void marriage is one that in the eyes of the law has never existed
whereas a voidable marriage is one that exist until it is has been
annulled by the courts, and if it is never annulled it will be treated as
valid. In De Reneville v De Reneville [1948] p 100 at 111, CA, Lord
Greene MR pointed out the differences between a void and voidable
marriage;
A decree for void marriages does not affect the status of the
parties at all but in voidable marriages the decree affects the
status of the parties.
11
Ibid Bromley’s Family Law p 70
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12
Stabdley .K, (2008), Family Law, p 29
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13
Standley, (2008) K, family law p, 31
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Wife has not attained the age of marriage and there is lack
of capacity to consent according to s 17 LMA [s 39 (c)
LMA]
Consummation of marriage
Consummation is the first act of intercourse after marriage. It takes place after
solemnization of marriage.
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Elements of consummation
Failure to consummate
This comes in two forms; either importance of the husband or
structural inability of a woman.
It can also be due to psychiatric or sexual evasion Singh v Singh
[1971] 2 WLR 963
This is covered under part IV of the Marriage Act. It is a consortium of rights i.e a
band of rights.
The rights of the parties to marriage include the following-: right to cohabit,
conjugal rights, love and respect, maintenance, protection and intimacy,
companionship and consummation.
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Maintenance right
As a general rule a husband has a duty to maintain his wife.
S 63 provides that , it shall be the duty of every husband to maintain
his wife or wives and to provide them with such accommodation,
clothing and food as may be reasonable having regard to his means
and station in life;
The principles of maintenance were laid down in the case of Miss
Gray Ltd v Cathcart (EARL) 1922 38 TLR 562, the wife has the
power to contract for her husband. S 64 LMA
If the Husband neglects to provide the actual necessity of life to the
wife, the wife has the right pledge his credit for such necessity.
However if the Husband fixes a suitable allowance to the standard of
their domestic life, the wife may not pledge the credit for the matters
covered by that allowance.
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This duty will shift to the wife if the wife has the means to do so, to
provide in similar manner for her husband and if that husband is
incapacitated, wholly or partially, from earning a livelihood by reason
of mental or physical injury or ill-health. This is provided for by s 63
(b) LMA
The court has the power to order maintenance as per s 115 LMA
Other rights
Right to love and respect s 66 LMA no right to inflict corporal punishment
Right to companionship and intimacy
Right to sexual intercourse
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MATRIMONIAL LITIGATION/PROCEEDINGS
Separation
This brings a marriage to an end for a specified period of time. It leaves the
marriage intact and enables the couples to cool off, and give them ample
time to settle their differences thus come into an amicable and lasting
settlement of their dispute and prepares them to resume cohabitation.
Sometimes conciliation fails and thus parties live for long periods of
separation and may later result into divorce.
During the period of separation the parties remain dully married to each
other and there cannot be a perpetual separation.
The orders for adoption may contain order for custody of children,
maintenance of children and maintenance of spouse.
According to s 113 the court shall set aside a decree of separation on the
joint application of the parties or where there is misrepresentation or
mistake of fact.
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Judicial separation-: this involves one of the parties going to the court
of law to apply for a decree of separation for a specific period of time.
S 99 LMA.
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Terms of separation
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Divorce
The only ground that the court may issue the decree for divorce is
that the marriage has broken down irreparably. S99 LMA any
married person may petition for divorce.
S 100 LMA provides for time limitation for lodging petition for
divorce. It must be after 2 years of the marriage. However if the
petitioner can prove exception hardship then that time limit may be
waived. Mariam Tumbo v Harold Tumbo [1983] TLR 293
The board has to certify that it has failed to resolve the matter by
issuing a certificate setting out its findings.
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Islamic divorce
Islamic marriages are said to be characterised as category of contracts
that are capable of unilateral termination without the terminating party
being held to be in breach14.
There are three conditions that must exist to prove that the marriage
has broken down;
o Issuance of Talaq
Types of divorce
14
Chuwa, G, (2006), Islamic Family Law in Tanzania; Marriage and its Dissolution, a paper presented at a
seminar for resident magistrates held at the Institute of Judicial Administration- Lushoto
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Mubaarat divorce
Khul Divorce
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Fashik divorce
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Couples acquire and posses properties either before or during the subsistence
of marriage. Ownership has long been the problem especially when the
marriage ceases to exist.
According to s 56 of the LMA a married woman has the rights to acquire, hold
and dispose of property be it movable or immovable she shall also have the
same right to contract, the same right to sue and the same liability to be sued
in contract or in tort or otherwise..
S 57 of LMA is to the effect that where a man has two or more wives they
shall as such, enjoy equal rights, be subject to equal liabilities and have equal
status in law.
Under Common Law property right was historically connected to the duty of
the husband to maintain the wife, that being the case once the woman was
married she was required to surrender all her properties to her husband, the
husband became the trustee of the wife’s property. In 1882 an Act was enacted
(In UK) which changed the position, the Act empowered married women to
own properties obtained prior and during the subsistence of the marriage.
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Joint property; these are properties that are acquired due to joint efforts of
parties to marriage, matrimonial home is one of the examples of joint
properties. S 2 of LMA defines Matrimonial home to mean the building or
part of a building in which the husband and wife ordinarily reside together.
The right of the other party will exist unless the person acquiring the
estate or interest can satisfy the court that he had no notice of the
interest of the other spouse and could not by the exercise of reasonable
diligence have become aware of it.
Where the spouse that owns the estate or interest of the matrimonial
home deserts the other spouse the deserted spouse shall not be liable to
be evicted from the matrimonial home by or at the instance of the
husband or the wife, as the case may be, or any person claiming
through or under him or her.
The exception to this is on the sale of the estate or interest by the court
in execution of a decree against the husband or wife, as the case may
be; or by a trustee in bankruptcy of the husband or wife, as the case
may be.
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No husband shall be liable for the torts of his wife by reason only of
his being her husband;
A husband and wife shall have the same liability in tort towards each
other as if they were unmarried;
The Court may order the sale of any such asset and the division
between the parties of the proceeds of sale.
any debts owing by either party which were contracted for their joint
benefit
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CHILD CUSTODY
Legitimate child
When there is more than one child the welfare of each shall be
decided separately.
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Prohibit the person given custody from taking the infant out of
Tanzania.
S 130 of LMA The court may at any time order a man to pay
maintenance for the benefit of his infant child–
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The order for custody shall expire on the attainment by the infant of
the age of eighteen years. S 132 LMA.
Illegitimate child
The obligation towards maintaining the child is only 100/- Tshs plus
education expenses s 5 Affiliation Act but case law extend this to
1/3 of the putative father earnings
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Adoption
Read: Article; Rwezaura B.A & Wanitzek (1991), ‘’the Law relating to
the adoption of children in Tanzania’’, E.A.L.R Vol 18 No 1 p 47.
o To provide education
o Good up-bringing
o Reasonable chastisement
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o S 11(2) the court will appoint the guardian ‘ad litem’ whose
duty is to ascertain whether statements in the petition are true
and whether the provisions of the Act prohibiting the parents
from receiving rewards or payment in consideration for
adoption have not been contravened.
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o The mother or father of the child (no age limit for biological
parents).
If one spouse applies solo the consent of the other spouse must be
sought and obtained before the application is granted s 5(2).
Consent
o The adopted child and the adopting parents fall under the
degree of prohibited relationships s 12(3) as per s 14(4) of
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Motive of adoption
Matrimonial offences
o These are covered by part vii of the LMA the Penal code covers some of the
offences
S 145 of LMA makes it an offence for any person making false statements
when giving notice of intention to marry, or notice of objection to an
intended marriage.
Any person found guilty shall be liable on conviction to imprisonment
for a term not exceeding three years, and it shall not be a defence to
claim that the offender had reasonable grounds for believing the
statement to be true.
S 146 of LMA makes failure to attend conciliation board an offence,
verbatim the section states that, Any person who, having been required to
attend before a Board, refuses or neglects to do so without reasonable
excuse shall be guilty of an offence and shall be liable on conviction to a
fine not exceeding five hundred shillings.
S 147 makes it an offence to give false statements, fabricating evidence or
making use of fabricated evidence, destroying, mutilating or concealing
any documentary evidence attempting to influence any witness, and the
penalty for this offence is imprisonment for a term not exceeding two
years.
S 148 makes it an offence to participate in a marriage while aware that
either of the party is below the minimum age. And the penalty is three
years imprisonment for the party to the marriage and two years for the
person participating the ceremony.
S 149 makes it is an offence to be a party or to participate a ceremony
purported to be a marriage while aware that the parties fall under the
degree of prohibited relationship, the penalty is two years imprisonment. It
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is a good defence that the party did not know and could not reasonably
have discovered the relationship.
According to s 150 any person who is a party to a ceremony purporting to
be a marriage, knowing that the intended marriage has been prohibited by
order of the court or of a Board, shall be guilty of an offence and liable on
conviction to imprisonment for three years. Any person who participates in
any such ceremony knowing that the intended marriage has been so
prohibited shall be guilty of an offence and shall be liable on conviction to
imprisonment for a term not exceeding two years.
Other offences include being a part to or participating to ceremony in
which the parties consent was obtained by coercion or fraud, polyandry,
absence of witnesses, irregular marriages and participating or being a party
to ceremonies performed by unauthorized officials and failure to register
the marriage within the prescribed time.
S 156 LMA Participation means to officiate thereat; to give consent
thereto under section 17; or to act as a witness thereto.
S 158 any person who unlawfully attempts to prevent parties to an
intended marriage to get married shall be guilty of an offence.
Any person who with the intention to disturb or delay the celebration of
any marriage, or with the intention of embarrassing the intended parties
or any other person present at the place where a marriage ceremony is
being, or is about to be, or has been, performed, causes a disturbance in,
at or near such place shall be guilty of an offence.
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