tted ling rms ach an WHAT CAN TANZANIAN COURTS LEARN FROM ENGLAND AND WALES IN INTERPRETING SECTION 114 OF THE LAW OF MARRIAGE ACT, 1971? Cyriacus SM. Binamungu* L INTRODUCTION In jurisdictions, which follow separate property regimes, there are two major systems that govern fairness in the division of matrimonial assets. The first category of systems is for the egislature to prescribe in detail how property shall be divided, with scope for the exercise of judicial discretion added to.! The second category of systems is for the legislature to leave it all to judges. The courts are given a wide discretion, largely unrestricted by statutory provisions? England and Wales and Tanzania fall under the second category of system. While the statutory provisions empowering courts to divide matrimonial ets in England and Wales represent the criteria that must be tively considered when exercising discretion, they do not add to one all-embracing principle against which to judge the appropriate outcome of the exercise of the discretion As a enior Lecturer, Mzumbe University Tanzania, Certificate in Philosophy (Kibosho- zania), LLB (Fon) Dar, PGD (Bestel), LLM (Commercial Lavw)Aberdeen, PAD idate, the Open University of Tanzania and an Advocate of the High Court of ania and subordinate courts thereto; Chief Counsel, CSB Law Chambers, P.O Box Morogoro. The author is most grateful for the comments of Prof. BAARwezaura, my D supervisor, Prof S. H. Bukurura, Commissioner, Tanzania Law Reform Commission, Se JM.Kagirwa and Mr. J. Benjamini, of the University of Meambe Tanzania, and Mr. wilimi, the Company Secretary of VODACOM on earlier version ofthis article. [also Dr. H.Mohamed of Sokoine University of Agriculture for proofreading this paper. all weaknesses and shortcomings that might be contained in this paper are entirely See Lord Nicholl of Birkenhead's Spooch in White v, White [2001] 1 ALLER 1 at. See ibid; See also JEL end DDF [2000] FamCA 1353 at para 123 in Australia judge's Gow Wachtel. Wachtel [1973] 1 AI ER. 629; O'Donnell. O'Donnell [1975] ALL E.R. 983 (Ca), 99%; See alo J, Eekelaar, “Asset Distribution on Divorce-The Durational Element”, {Cont (117) The Law Quarterly Review, ; See also D. Ruth, “Financial Relief: The Retreat from Precedent and Principle”, (1982) (98) Tke Law Quarterly Review, 623. 1 Wachtel e. Wachtel [1973] 1 ALL ERA. 1 See for instance, Page v, Page (1981) 11 Fam. L149, the Court of Appeal awarded £50,000 to the wife out of £ 380,000 of the oint assets. te See O'Donnell. O'Donnell 1975] 2 ALL ER, 93, at 997; See also R Bailey-Harris, ‘Dividing the Assets on Family Breakdown: The Content of Fairness”, (2002) Current Lega Problems 84, In Fv. F[1995]2FLR 47, the wife received 4.5% of the assets, ast reg pe nei er re¢053 ni", x satisfy the other spouse's reasonable requirements even though he could afford to pay more.!7 Ormrod Lord Justice in the case of Preston v. Preston'® considered the wife’s position, not from the narrow point of ‘needs’ as required under section 25 of the Matrimonial Causes Act, 1973 [MCA] but from the point of ascertaining her ‘reasonable requirements’? This approach was regarded to have slightly ameliorated the scope of a wife's entitlement as expressed by Lord Justice Thorpe, that ‘what a person requires is likely to be greater than what that person needs’? ‘The approach was later criticised on three main grounds: () that while originally the concept of reasonable requirements was taken to be synonymous to needs as provided in the statute, it later shifted away from the ordinary meaning of the statute contrary to law; (ii) it was questioned as the quantum of the award was determined restrictively on the reasonable requirement and as a result it limited the share for wives;2! (ii) it created uncertainty as to what awards should be made. The House of Lords in White v. White, queried as to when does the surplus exceed the financial needs of both parties, why should they belong solely to the husband’? Dissatisfied still with the reasonable requirement approach, the House of Lords in the White's case, rejected the approach and instead laid down the son-discriminatory partnership sharing principle or the partnership wsodel of marriage, which assumes that for the purposes of disputes over matrimonial property each party has contributed more or less equally to the wealth and welfare of the family over the entire length of the marriage and, justice and equity require an equal division of the net assets accumulated during that time”. K-Standley, Family Law, 2004 (Ed), at 17-178. 982) 1 ALLER. 41, at 47. Se also White. White [2001] 1 ALLER 1, at 10. ‘See Dart, Dar 1997] 1 FCR 21, at 32. K Standley, (2004) Op Cit at 178 report the wife, who had contributed tothe family sesiness, received only pounds 13 million ofthe pounds 4 million available for eribution, Moore & Moore [2008]FaraCA 32,para 20 CEST‘The principle of non-discrimination is in line with the Convention on the Elimination of All Forms of Discrimination against Women [CEDAW] which was adopted by the United Nations Assembly in 1979.2 The Convention requires the States parties to the convention to respect, promote and fulfill this right penon-discrimination for women and to ensure the development ‘and advancement of women in order to improve their position te ae ot de jure as well as de facto equality with men. This fact negates the accusations by some critics who argue that the principle was a judicial imposition of the Community of Property system on England and Wales The Convention focuses on discrimination against women, emphasizing that women have suffered, and continue to suffer from various forms Of discrimination because they are women. The essence of the Convention just like the rule in the White's case is fairness between women and men. It is not equal sharing of assets, although at times fairness may result to equal sharing of assets. ‘The principle in the White's case is clarified in different words. ‘According to Carboy in Moore & Moore the Australian case, the genuine partnership philosophy provides that unless the Contrary is proven to the requisite standards, the principle ends Svith an equal contribution assumption for the purposes of Sharing matrimonial property. Contributions during | the marriage are the touchstone for the allocation of shares of the Assets regardless of when, by whom or how they were acquired. ‘The financial and non financial contributions made during the course of the marriage are given an equal weight. The principle Glso uses fairness as an adjustment mechanism to avoid injustice jn cases of gross disparity instead of counting and assessing, the quality of contribution in every case. This means the principle in the White's case does not follow the evaluative approach of one [he United Kingdom signed the convention on 22 July, 1981 and the declaration was signed on 7 Apri, 1986. Sees Cretey, “A Community of Property System imposed by Judicial Decision”, (2008) (3) Fly Lo, 39. Sos) Fam 32, Para 290 (25 January 2008) —————;—;_z==——s—=“CS=S~S~S~st*s‘xertaining the quantum of entitlement, as it is the case in Aestralia, although both jurisdictions follow a discretionary system.* The facts in the case of White v. White may be stated briefly as Sellows: The parties were married in 1961 and their marriage Seoke down in 1994, The marriage between the couple lasted for Spears and the couple jointly participated in the dairy farming ‘Sesiness. The wife had also the primary role in bringing up their ‘Gece children who by 1994 were adults. At the time of their Sworce the estimated value of their assets were worth pounds em, a sum that substantially exceeded the amount required for Serr financial needs in terms of a home and income for each of Sem. Upon divorce and subsequent division of the matrimonial sroperty, the trial judge awarded the wife the sum of pounds 959,000, equivalent to slightly over 20% of the assets. Upon the sesie's appeal, the Court of Appeal increased the amount of the Seyment to pounds 1.5m. That decision had the effect of Seczeasing the wife's share to about 40%. The share could not be secreased further as one of the sources of funds was the inherited ssoney from the parents of the husband. The husband appealed % the House of Lords, contending that the Court of Appeal had serongly departed from the ‘reasonable requirements’ approach epplied by the trial judge. Also, the wife cross-appealed, seeking = order giving her an equal share in the assets and contending Sat the principle of equality should be the ‘starting point’ in every case concerning the division of assets between a husband sed wife. The House of Lords dismissed both appeals and confirmed the decision of the Court of Appeal emphasising Genes and warning against discrimination between the besband and wife” ‘The case of White v. White has three key features worth pointing eet at this stage. First, by 1994, the couple had children who © Sieore & Moore [2008] FarmCA32 at 27, Para 146 =(ier] ALLER? eS 7were already adults and therefore this was clean break marriage; second, both spouses, had contributed to their dairy farming, business equally. The facts of the case reveal that Mr ad Mrs White contributed, in cash oF i kind, a more or less fequal amount of capital, of about pounds 2,000. The third feature ie that their assets did not derive wholly from the couples as ‘Siawhite’s father made them an interest free Joan of pounds 11,000 together with further pounds 3,000 used as @ working, capital. The issue ‘before the House of Lords as identified by Lina Nicholls of Birkenhead was: ‘How the courts should MMereise wide discretionary powers in big-money [a5 where the assets available exceed the parties financial needs for housing and income?® The ratio decidend in the case of White White in my view, is that for a spouse to be entitled to a share in the matrimonial assets, the courts should take into account all the circumstances of the case without discriminating either of the spouses so long as one has made @ ‘contribution to the welfare of the family regardless of whether one ha earned the money and built up the assets in dispute or has simply contributed towards the acquisition of matrimonial assets by way of domestic ine ieee: When this rule was applied to the facts i the White's sry, the share of Mrs White rose from pounds 980,000 up to pounds 1.5million, which was close to half of the total of the Pots available. The rule was subsequently refined by the House of Lords in Miller v. Miller, by distinguishing between meeting the parties’ future needs, ‘which will usually be all that can be done with the limited resources available to the parties; providing compensation for any ‘economic disadvantage a party Fray suffer as a result of the relationship®! and finally sharing, mich reflects the equality of the parties! relationship and vemnmitment to each other during the marriage. ‘When the three a eee See White. White [2001] 1 ALLER. 1 at 8 2 gee White, White [2001] 1 ALLER 1 at5 » 2006) UKE 24 > 206] KH 24 ge ited heres Mis McFarlane in MeFrane =, MeFi (1908) WCA (Civ) 872 Thid Para 10-16strands are considered together they bring about a more comprehensive meaning of discharging fairness to the parties ‘The question to be answered next is how does the principle of sen-discrimination guide Family Courts in England and Wales ; % determine shares a fair division of matrimonial assets? The . Escussion of the English and Welsh Courts’ experience below q addresses this question. g Post White's Case era 4 ‘The era after the case of White shows the efforts by the House of : ‘Lords in refining the non-discrimination principle in the White's ¥ cese. The requirements of fairness are outlined in the : consolidated appeal of Miller (Appellant) v. Miller (Respondent) 5 seed McFarlane (Appellant) v. McFarlane (Respondent). In this case nm Lord Nicholls of Birkenhead, outline the four components of the E exinciple stating that the relevant court should first consider the a ‘welfare of the children of the marriage as a matter of first priority 4 es required under the Matrimonial Causes Act, 1973. But after A Set the court should then consider the financial needs of the tic ‘spouses and make a fair decision. It is possible for the exercise to F eed at this stage. The court considered a situation where the eS erties conducted their lives in a manner that gave the Re edvantage to one party and a disadvantage to the other, and ee Sted that in such a situation, compensation to the Ssedvantaged person is mandatory. But the amount of ie compensation to be made is also required to be assessed fairly. In ES Se case of McFarlane, the wife sacrificed her professional career pS ef practising as a solicitor for the purposes of bringing up her BS Semily. On divorce, she was granted £250,000 annually for the eo semt lives of the couple. This award was apart from the assets of their future needs. SOTTLR. 32 ap. 35, SLELR 32at 14; See also B.A. Rwezaura, “Gender justice and Children’s Rights: a ‘See for Family Law Reform in Tanzania”, A Bainham(ed ) The international Surcey of He Lee, (1997), at 326 «EES eer 5According to Prof Rwezaura, the preceding considerations (a) and (b), in the above paragraph, when coupled with the wording of the s. 114 (2) LMA, which states that the court shall incline towards equality of division, makes the exercise of determining shares for a couple in the matrimonial assets go beyond a mathematical computation of the contribution made by the parties.’ The notion of contribution goes beyond ‘actual’ contribution(s) by spouses and it therefore encompasses indirect contributions, through domestic services, child care, and sacrifices made and the foregone opportunities which would otherwise have had an economic impact in one’s life. In this regard, despite the fact that the respondent purchased the disputed house in cash directly from the market just as was the case in Zawadi’s case, the court found the appellant to have contributed to the acquisition of the house in dispute through domestic services. The court took into consideration the fact that lack of care of the house results in deterioration of such house and since the appellant took care of the house in dispute, she deserved a share in it? The court while guided by the non- discrimination principle?” decided that the "appellant contributed towards the acquisition of the matrimonial property. Nonetheless, the Court of Appeal did not lay down any principles to be used to determine the extent of contribution through indirect contribution. The court did not award the appellant a share because she did not account for Tsh. 18,000/ advanced to her for setting up a business. Was the value of the house equivalent to Tsh.36, 000/= or there-about? Why did the appellant walk away with nothing? ‘The main weakness in this case, unlike in the White's Case is failure by the court to determine the value of the disputed house = Rwesaura,B.A. (1997) Op.Cit >. Bi Hao Mohamed. Ally Sef 1983] TILR_32 at 44-45 27 In England, the Court of Appeal in Lamtet o.Lambert 2003] 1 FLR 139, Thorpe, LJ said that there ‘mast be an end to the sterile assertion tha the breadwinner’s contribution ‘weigh heavier than the homemaker’’... each contribution should not be recognized as Jess Valuable than the other ineand thereby to enable the appellant to have a clear picture of her share in the total value of the house. As the record stands, it is difficult to state from the copy of the judgment what the appellant was entitled to and how much she lost by not accounting for Tsh. 18,000/=, resulting to the dismissal of her appeal. The effort in achieving fairness as reflected in Bi Hawa Mohamed extended the jurisprudence of the Tanzanian family law further but without settling down some basic issues as discussed below. Different courts under different judges and magistrates, seek to achieve fair distributions of assets from different perspectives. This situation causes a disharmony in the legal system. For instance, in Maryam Mbaraka Saleh v. Abood Saleh Abood’* [Mbaraka], the marriage lasted for eight years from 1978 up to 1986. During the subsistence of their marriage, the couple acquired one house in Dar es Salaam. On petition for divorce the matrimonial home was in dispute. As proof of contribution towards the acquisition of the asset, the appellant, argued the following: a) supervision of the construction of the house and the use of her father’s motor vehicle to ferry building materials at the site for the house in dispute b) as the wife, she reared the child and minded the home. The respondent disputed the appellant's, evidence, claiming, that everything was done by him. The trial court granted divorce as prayed for by the petitioner and granted an equal division of matrimonial property between the spouses on ground that the property had been jointly acquired. On appeal to the High Court by the respondent (husband), the judge found that the appellant had been a house wife and had no independent earnings other than that given to her by the husband.” The judge upheld the appeal. On further appeal to the Court of Appeal by the appellant (wife), the court reversing Civil Appeal No 1 of 1982, Court of Appeal of Tanzania (CAT) (unreported), the fedgment was delivered on 29fune, 1992 “The High Court misdirected itself when it overlooked the principle lid down inthe cose of Bi Hawa Mohamed (Cupra) athe decision of the High Court upheld the findings of the trial court and ordered a forty percent (40%) share in favour of the appellant. The trial court had taken into consideration the manner in which the couple was living and the basic activities the wife was performing, particularly, child care, domestic chores and supervision of the house. Fairness in the eyes of the trial court recognized the wife's contribution to the tune of fifty percent towards the acquisition of the landed property in question. The Court of Appeal reduced the fifty per centum (60%) share awarded by the trial court to forty per centum (40%) by taking into consideration the fact that the respondent had the custody of the infant child Fathaya who was placed in the custody of the respondent. This decision in my view was in line with s. 1142) (d) of the LMA as it took into consideration the interests of the infant child. But subsequent to that decision, another panel of Justices of Appeal, in Isidori S. Balaga v. Chezalina Balaga* held that in deciding the question of distribution of matrimonial assets between spouses children’s interest is a subsidiary consideration as the matter concerns the spouses only. This decision will create uncertainty in the law until such time when the full bench of the Court of Appeal makes a decision on the matter.** In 2001, senior judges relying on the Bill of Rights and the Convention on the Elimination of All Forms of Discrimination © Civil Appeal No 41/1995, Court of Appeal of Tanzania at Dares Salaam (unreported) ‘This lepal position has so far been followed by the High Court in Eliester Philemon Lipmgaiela & Daudi Makuhaa, Civil Appeal NO. 139 of 2002, HC-D5M Registry (unreported). The High Court examined closely the life set up of the couple, the Conomnic activities ofthe wife, as she was engaged in selling ‘burns’ and ‘vegetables’, fenerating some income and the proceeds obtained contributed to the welfare of the Enmily. In view of that, the court awarded 50% share of the matrimonial assets to each spouse. Bat no orders were made in relation to the welfare of the four children of iarringe such as edacation and up-keep. "Article 130) ofthe Constitution ofthe United Republic of Tanzania 1977 (as amended from time to time)Sainst fvomen (“CEDAW")® pronounced the equality ciple Equality is a notion based on non discrimination S=tween the gender based roles or their relative value to the Seriege as a whole, It regards marriage as a partnership. When Somes to division of matrimonial property, the principle allows = the departure where the quality of the contribution or Santity or the source and timing of the acquisition of the asset ike it just and equitable to do so. S case, of Munjuma Mohamed Njopeka v. Juma Said reserenlNiopeka, is a key case on the point. The marriage sen the couple Tasted for eleven (11) years (1989-1998), bat Soe cy aiuated al Mtoni and another one situated at Mbagala in s Salaam.” In 1998, their marriage got into problene. The =Spondent petitioned for divorce in the trial court. The appellant Petitioned for the maintenance and division of the “simonial property. The court granted a divorce decree and 200, 000/- to the wife as a parting gift as proposed before SAKWATA. The trial court did not divide the matrimonial Perty. The appellant was aggrieved by the decision of the Sa court, then, unsuccessfully appealed to the District Count Se appeal to the High Court, the main issue was whethe. the ree,camvention was proclaimed bythe General Assembly Resolution 226300 of 72 November 1967 and was Ratified by Tanzania on 17 July 1980. mA, Ruezaura and UWanitze “The Constitutinalization of Fanly Law in Tanzania’ (2007) 1 2) The Open Univesity Law Journal, at 112 See Moore & Moore [2008] FamCA 32 a 91, Para 569 PC} Civil Appeal No. 6 of 2001 (HC) DSM (unreported) [judgment delivered on 2001] 5 pe Mohamed Nope Juma Sid Morogoro (PC) Civil Appeal No.6 of 2001 0) DSM (unreported) at 4of the typed judgment the respondent detied he icrer ct conteibution,the United Republic of Tanzania® as the decision granted both houses to the husband leaving the wife without shelter. The High Court upheld the appeal. The court observed that under the circumstances, the Primary Court erred by not giving the appellant an effective remedy, in this respect, a share in the assets admitted by the respondent to have been jointly acquired. ‘The appellant had been awarded a sum of Tsh.500, 000/=as a parting gift only. ‘The Primary Court decision had several outstanding errors. First, while the court record reflected that the assets (two houses, one at Mtoni and another one at Mbagala in Dar es Salaam) had been indisputably acquired jointly and during the couple’s marriage life, the court did not attempt to divide the assets as required under s.114 of the LMA. Second, the court did not see to it that ‘Tsh.500, 000/= awarded to the appellant (wife) could be obtained at the right time and without problems. The appellant ‘was left without shelter and in suspense while the respondent (husband) was left with everything. The High Court awarded the appellant (wife) a house at Mtoni area although its value was not ascertained. This leaves a doubt as to what degree the court achieved fairness? Was it just enough to give shelter to the appellant (wife) without considering the value embodied in what is given? How did the house at Mtoni compare with the house at Mbagala? What exactly convinced the High Court to arrive at such an apportionment? The approach of resorting to Article 13 ‘of the Constitution of the United Republic of Tanzania emphasizes one main point of equal treatment of persons before the law and the prohibition of discrimination of persons as demonstrated by the material facts of the case. The question arising out of the judgment in Njopeka’s case is were the parties treated fairly? I would argue that the division of the assets was partially fair. The equality element is not vividly expressed by % Mnjuma Mohamed Njopek 0, Juma Said Morogoro (PC) Civil Appeal No.6 of 2001 (HC) | DSM (unreported) at Sof the typed judgment; Article 13 (1) of the United Republic of ‘Tanzania states in Kiswahil as follows: Wats wote ni sawa mbele ya sheria, na wanayo. hai, bila ya ubaguzi wowote, kulindwa na kupata haki sawa mbele ya sheria.the manner in which the award was made, Women should be awarded what they deserve. The five cases discussed above, namely: - Bi Hawa Mohamed (1983); Mbaraka (1983); Njopeka (2001); Lipangahela (2002); and Eliester (2005), reveal a common pattern regarding the division of matrimonial property. What the courts were looking for is a fair share to the parties based on different principles. Proof towards the acquisition of assets in dispute does not mean production of tangible items like receipts for purchase of a bag of cement or a bundle of iron sheets. Common sense on certain matters like housekeeping should be enough. In other words, applying non-discrimination principle facilitates the process of arriving at fairness faster and conveniently than is the case where the evaluation method is applied to a factual situation which demands for hard ‘evidence’. What seems difficult to handle is embracing the partnership model and the evaluative method together. Some judges believe that marriage is and should be regarded as a genuine partnership to which each person brings different gifts. The trend established by the above randomly selected cases, shows that once a spouse proves to have performed her part in her own area for the benefit of the family, such a contribution in whatever form be is regarded as a contribution towards the acquisition of matrimonial property. But the High Court of Tanzania in one case seems to have a divided opinion on this. Of recent, in the case of Mrs Grentina Kabisa =Muwakyami v. CRDB Bank Ltd and Four Others,°[Mwakyami] the High Court judge dismissed the applicant's matter because she could not prove to have made her contributions to the standards required by the rules of the Law of Evidence Act, 1967 towards the acquisition of the house in dispute. The applicant/objector presented the evidence in court by way of an affidavit showing that she contracted a Christian marriage with the second respondent (borrower) and also that © Commercial Case No. 51 of 2000, HC Commercial Division at Dares Salaam (unreported)during the marriage they constructed the house they were residing in and which is the subject matter of the dispute. She also stated that the house in dispute was registered in the name of her husband. It was also averred that the mortgage arrangement between the bank and her husband did not involve her, She unsuccessfully prayed for orders of dismissal of the attachment and sale of the property in dispute. The question that remains to be answered is whether the equality principle adopted in Njopeka’s case overrides the evaluative method demanded by the rules of evidence as reflected in Mwakyami’s Case? Tanzania, embraces international human rights principles. For instance, the Bill of Rights was entrenched in the Constitution of the United Republic of Tanzania in 1984 and came into force in 1988 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was ratified by Tanzania on 17 July, 1980. In addition to the two legislations, there are the African [Banjul] Charter on Human and peoples’ Rights and the Protocol on the Rights of Women in Africa of 2003. All these international and regional instruments on human rights require Tanzania to prohibit by all means discrimination between women and men and to ensure equality between them. These human rights values make an impact on judicial discretion, particularly on entertaining discriminatory customs and practices when making decisions. The traditional division of roles between a breadwinner and homemaker are viewed by the court as not being the basis for discrimination when assessing the contribution made by each to the welfare of the family under s. 114 of the LMA. Such a discriminatory approach is plainly unacceptable in the light of human rights core values. Since, the evaluation method demands the application of strict rules of evidence, and thus inevitably rendering the role of the See 5.5 (2) of the Constitution (Consequential, Transitional and Temporary Provisions) [Act 1984 (Act No. 16 of 1984), >. is & ~~homemaker as lower than that of the breadwinner, these rules are taken over by the partnership approach in which fairness guides the courts to reach the decision. This is the significance of the human rights laws on matrimonial property rights in Tanzania. It is therefore argued that although the Matrimonial Proceedings Rules of 1971 bring into play the rules under the Givil Procedure Code, Act, Cap. 33, during the hearing of the petitions for the division of matrimonial property, the strict adherence to these rules has already been taken by events. IV. LESSONS FROM ENGLAND AND WALES Before drawing the lessons from the experience of courts in England and Wales, it is crucial to point out the basis for doing s0 as follows: (a) Case law in England and Wales is not binding im Tanzanian courts by virtue of the Judicature and Application of laws Act, 1961, except those ones which were laid down before 1920. (b) England and Wales has different social economic conditions from the ones found in Tanzania. England and Wales form part of the developed world unlike Tanzania which is among the developing countries. The above two factors seem to suggest that the experience of English courts’ in handling the division of matrimonial property on divorce or separation is of no value in Tanzania. I would argue that this is not the case. There are several factors in common between England and Wales and Tanzania, which suggest that the latter can conveniently learn from the experience of England and Wales. First, in Tanzania, there is increasing awareness in human rights movements as much as England and Wales.® Tanzania introduced the Bill of Rights in the Constitution of the United Republic of Tanzania as early as 1984, Tanzania ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and recently, signed the Protocol on the Rights of Women in Africa in 2005. This Protocol requires = See the Government Notice Number 136 of 1971 published on 118 June 1971. See also 6.108 of the LMA, ‘See Legal and Human Rights Centre, Taarfa ya Haki za Binadamu Tanzania, 2009, at iter) isthe States Parties to take measures to recognize the economic value of the work of women in the home. Second, globalization rationalizes what would be regarded foreign as part of the global system, Third, both the Matrimonial Causes Act, 1973 and the Law of Marriage Act, 1971 focus on fairness and women liberation. It is in the light of the foregoing discussion, I argue that Tanzanian courts could learn from the courts’ experience in England and Wales on four aspects namely, priority to interest of children, the value of the matrimonial property, exceptional contribution, compensation. Each of these aspects is explained below (2) __ Priority to interests of children The LMA provides among other things that the court shall among other things, have regard to the needs of the infant children, of the marriage if any, when ordering the division of matrimonial assets. But case law covered under section three of this article shows clearly how this aspect is given less attention. At times, the courts do not disclose as to whether or not the couple had children; and where the children are mentioned, the basic needs of the infant children such as food, shelter and education are not addressed as one would have expected. For instance, in Elizabeth A. Komakoma v. Zephania M. Andendekisye,® the couple had three infants of marriage. When the marriage was dissolved and the matrimonial assets divided, the trial court awarded the infant children the house. On appeal, the High Court held that the trial court had no powers to give the house to the three children, instead the house should have been sold and the proceeds shared equally between the spouses. The court ordered so accordingly. In this case, it is obvious that s. 114(2) (d) % See Article 7d) ofthe Protocol. See alo R. Murray, ‘Chapter 12; Women’s Rights and the Organization of African Unity and AVrican Union: The Protocol on the Rights of ‘Women in Africa’, in D.Doris and A Manji (eds) International Law: Modern Feminist Approach, Hart Publishing, London, 253-272 a 25 ‘© Civil Appeal No 17 of 005, HC of Tanzania at Dar Es Salaam (unreported) st &= ~~ee ee Td of the LMA was not comprehensively followed. The division of the matrimonial assets overlooked the interests of the infant children for no reason. In Mbaraka’s case, the Court of Appeal awarded the appellant 40% by reducing the appellant's share from 50%, awarded in the trial court and in the process of doing so simply said this is because the respondent was to take care of the infant child. The question is how much was 10% and how did it reflect the needs of that infant child? While the interests of children were generally taken on board in Mbaraka's case, in Lipangahela's case the situation was different as nothing was set aside for the children, The court simply awarded 50% share to each spouse and granted each of the spouses a shared custody of children. ‘The question one may ask is what share did the court apportion to the infant children? It is the argument of this paper that giving priority to children while dividing matrimonial property is the requirement of the law. It is important that infant’ shares be clearly indicated and part of it be set aside as demonstrated by cases in England and Wales. (b) The value of the matrimonial Property In England and Wales, court practice in the division of matrimonial property, demands that the value of the assets in dispute be stated in the pleadings. All the cases covered in this paper under section 2 above, show the value of assets in dispute between spouses. In Tanzania, the law simply requires petitioners to prepare a list of assets sought to be divided to be annexed to the pleadings and a proposal on how the same should be divided, This obviously guides the court to some extent to make decisions but it does not assist much as disclosure of the value of the assets is not a requirement. For instance, in the case of Omary Chikamba v. Fatuma Mohamed Malunga” the respondent was just awarded one house out of the three houses S205. 106 () (9 ofthe LMA 1971 (1969) TLR. 59 (HC) ere 2and a coconut farm and a stock of animals the couple jointly acquired during the subsistence of marriage. The appellant Tetained the rest of the houses and the respondent did not Complain. What does this mean? It is obvious that in the division Sf assets as was in this case, raises many questions which are left Unanswered by the court judgment. This is simply because all the assets mentioned in the judgment had no value pegged on them. Therefore, in the absence of at least an estimated value just like what currently happens with land disputes before the Tribunals.% I argue that the law leaves too much room for miscarriage of justice despite applying the principle of partnership of equals. In England and Wales, the parties have to State the value of their assets at the very beginning so that when a decision is reached it indicates clearly who is taking what in monetary terms. This approach in my view does not only show that justice has been done but justice is seen to be done by third parties. (c) Exceptional contribution ‘The doctrine of special contributions finds no expression under s. 114 of the LMA. It exists in England and Wales and in ‘Australia? In Tanzania, by embracing the equality principle, it becomes logical that the doctrine of exceptional contribution cannot be avoided in certain circumstances. The issue is to what extent should the principle apply in Tanzania? Currently, the principle operates as an exception to the principle that Contributions by the efforts of the parties during the course of the marriage should be given an equal value. In England and Wales, this doctrine has been confined to exceptional cases!™. This reveals the societal commitment to gender equality. In Tanzania, the principle is yet to be adopted as reflected in the recent case of Debora Nalumansi Liviza v. Marco Kamugisha Liviza'® (Lwiza]. In R30) (a of the Land Disputes Courts (The District Land and Housing Tribunal) Rules, 2003, Gn, 174 of 2003. Mallet v. Mallet (1984) 156 CLR 605 [2008] 2 WL 631 sa iil Appeal No 96 of 2006, HC of Tanzania at Dare Es Salaam (unreported) at 2425, pap orthis case, the court granted the husband (respondent) a higher share than the appellant simply because the former was a Chief Executive Engineer while the latter (wife) was a mere primary school teacher. It is argued that this approach takes us back to the era before Bi Hawa Mohamed’s Case and before the enactment of the Bill of Rights. The equality principle embraces marriage as a partnership of equals and operates against bias. In view of this, the principle should be sparingly applied in order to allow the equality principle to operate smoothly. (a) Compensation According to the principle in White's case and as refined in Miller and McFarlane’s cases, a party who suffers economic disparity at the time of separation or divorce is fairly treated by awarding him or her some compensation for such a loss suffered. The compensation to be granted to the loser has to be fairly assessed taking into consideration the whole background of the couple. In Tanzania, the concept of compensation is used to refer to a situation where a couple has literally nothing on separation or divorce but one of them is working, then the court orders the other spouse earning an income to pay a certain sum of money to the other spouse to enable him or her to settle elsewhere! Another instance is where a party is ordered to pay money to the other party in order to be able to retain the asset acquired during the marriage", Compensation in this context is narrow in my view. This is so because it does not consider the capacity to earn income left with one spouse, which the other spouse does not have. That is why in Miller, the House of Lords took such a situation into consideration and awarded Mrs McFarlane some compensation. ® Pulcheria Pundugu v. Samwol H. Pundugu (1985) TLR, (HC) ® Mohamed Abdelah 2 Halim Lisengwe [1988] TLR. 197 (HC) SERS 3:‘Vv. CONCLUSION ‘The objectives of this paper were to determine the lessons which courts in Tanzania could draw from the experience of English of matrimonial sod Welsh courts when handling the division rty under s. 114 of the LMA. ‘The major issue for the courts Pr poth jurisdictions has always been how matrimonial assets should be distributed when the marriage ends. This paper has spewed the literature in both jurisdictions of England and Wales and of Tanzania on the trends of division ‘of matrimonial property. The paper has shown that the principle of non- Hiscrimination of spouses in England and Wales plays a Substantial role in guiding the courts in exercising their ‘fiseretionary powers when handling the division of matrimonial see It has been noted that the principle is working by egarding marriage as a partnership of equals. This enables the Tebevant courts to have a clear view as to who the partners were when the assets in dispute were accumulated. It also takes it want all key arrangements of a couple, the potentialities of tach spouse up to the time of separation or divorce and assesses crc eaation accordingly. This in turn enables the courts te vFetermine fair shares for the couple. Despite the fact that in som cere Hone couples are ordered to share their assets equally, there ig no guarantee that in every situation the results would adequately address this anomaly. The courts have 1 conduct aesclements fairly and arrive at a certain outcome. This 15 4 big esson for the courts in Tanzania. Uniformity in standards, guidelines and principles enables courts to feat like cases alike. Ginequal treatment under the law erodes public confidence in the courts. It is a challenge on the appellate courts in Tanzania to adopt, modify and apply the principle to suit the local conditions of our country. ———————=£====_—<~S~—t*s