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THE OPEN UNIVERSITY OF TANZANIA

FACULTY OF LAW

[LOGO]

OLW 308 FAMILY LAW

 PART ONE

1.0 INTRODUCTION [LECTURE ONE]

1.1 Scope of Family Law

Before embarking on the study of family law it is essential to

determine its scope by drawing boundaries around a specific area so
that we can identify what is in and what is outside our field of study.
However, it should be noted that the exercise of setting boundaries
has to be arbitrary and artificial. It is done primarily for the sake of
convenience and content management. Under normal conditions,
the subject of family law can be very wide. It would cover any law
touching on or having an effect on the family. And the term ‘family’
as we shall see shortly is also wide and difficult to define.

For purposes of this study, family law includes the law (or laws)
relating to the formation of marriage; the factors or conditions
affecting the validity of marriage; the rights and obligations arising
from marriage; protection of family members from harm and
hardships including financial difficulties. It also covers the law
governing property relations between the spouses; dissolution of
marriage and consequential matters such as post-divorce (and post-
separation) maintenance and division of matrimonial assets.

Where a married couple has infant children, family law makes

provisions for determining who will have their care. The law relating
to the status and rights of the child within the family also falls under
this branch of the law. It also covers the law of adoption,
guardianship, foster care, and child support.

Given the plurality of our laws governing the family, it is not possible
to study family law without considering the interaction between
various laws relating to the family within our legal system.
Consideration of the historical background of various laws relating to
the family will also be made in order to give the student a deeper
understanding of the law and its current state and future
development.

BOX

At the end of this lecture students will:

i) Become aware of the boundaries of family law;

ii) Acquire an understanding of the subject of family law by

focusing on what family law does (functionalist approach)
instead of what it is;

iii) Grasp the sources of family law;

iv) Understand the relationship between family law and legal

pluralism; and

v) Understand the connection between family law and social

change.

END OF BOX

1.2 Functions of Family Law

The four primary functions of family law are: constitutive, regulatory,

protective and re-constitutive. The constitutive function involves
turning a man and woman into husband and wife and more generally
making provision for the establishment of family relationships.
Family law also regulates the relations between family members as
well as their relations with outsiders. It plays a protective function in
cases of domestic violence, including matters such as spousal and
child abuse and makes provisions for economic support for weaker
family members including children.

When parties cannot live together as a family, the law dissolves their
existing relationships and re-constitutes them into non-family
members such as divorcees and grants them capacity to form family
relationships with others. It must be conceded that certain
relationships such as parenthood cannot be dissolved at will. And for
those of the Roman Catholic faith, only death can legally put husband
and wife asunder.

Family law also performs the protective function, especially in

relation to the weaker family members such as wives and minor
children of the family. The law of divorce, which is part of family law,
has the function of dissolving the marriage relationship between the
couple thus turning them into semi-strangers. On divorce, the parties
to a monogamous marriage regain their legal capacity to marry.
There are also provisions under the law of adoption for an adopted
child to be re-adopted by another family.

The idea of conceptualizing family law in terms of what it does,

rather than merely what it is, enables the student to think more
clearly about the subject and to develop an analytical framework that
seeks to evaluate the extent to which the law does or fails to perform
those functions and whether such functions are exclusively
performed by law or in partnership with other social forces.

1.3 Family Law and Legal Pluralism

It has been noted above that one cannot study family law without at
the same time also studying legal pluralism. This is primarily
because of the history of our legal system which includes the
imposition of colonial law upon the subject population and their
indigenous legal systems. It is also a history of Tanzania's contact
and ultimately adoption of non-indigenous religions such as
Christianity, Islam, Hinduism and Budhism. Each religion has its
origins from a different civilization with its own legal history and its
own system of family law.

During the British colonial era, the law permitted each social group
and each religious group to operate its own family law system. The
law also made available a neutral system of state law which was
ostensibly non-religious and non-indigenous. It permitted certain
individuals to cross over cultural lines or membership of one religion
and take advantage of the family law system that appeared to them
to be most convenient. For example, a person from the Sukuma
ethnic group could marry under Sukuma customary law or under
Islamic law if that person was a Muslim. He could also opt to marry
under the civil law system thus taking advantage of existing
statutory law.

The existence of multiple systems of family law in a single legal

system gave rise to a number of problems. These include the
existence of different legal consequences of marriage and different
remedies basing on the system of law selected by an individual. It
was also necessary for the courts to determine which law was
applicable in a given case where an individual appeared to be subject
to more than one system of personal law.1 Courts had to develop a
1
The case of Mohamed Ndwata v Hamisi Omari 1988 TLR 137 was described by Samatta J (as he then was) as a
“somewhat unusual” . The claimant husband sued his father in law for recovery of dowry and various traditional payments
he made when he married the respondent’s daughter. The [marriage] was set aside by a Primary Court in an earlier case
on the ground that the wife had unreasonably refused to consummate the marriage. The case went all the way to the High
Court even though the amount being claimed was by far smaller than the cost of litigation. It seemed the former husband
new jurisprudence of choice of law and to deal with what came to be
widely known as internal conflict of laws.2

In order to put an end to these and other related problems and to

reform the law, a single piece of legislation was enacted that became
known as the Law of Marriage Act of 1971. This was followed in
2009 by the Law of the Child Act.

1.4 Sources of Family Law

The sources family law, include the Constitution of the United

Republic of Tanzania, as amended from time to time, the general law
(or statutory law), customary law, Islamic law, Hindu law, case law,
and various elements of foreign law which are recognized by our
legal system. A number of regional and international human rights
strongly believed he was entitled to claim everything because the wife had refused to have the marriage consummated.
Samatta J held, dismissing the former husband’s appeal, that “whatever the legal position might have been under the
Customary Law or the Islamic Law, the law now, as I apprehend it, is that once the marriage has taken place, any gifts,
whether traditional or otherwise, given in contemplation of the marriage, become the absolute property of the
recipients.” Citing s 3A of the JALO, Cap 453, the learned judge noted that “any rules of Customary Law or Islamic Law
which might have regulated the return of gifts made in contemplation of a marriage are now superseded by the provisions
of s 71 LMA.” It is clear that the husband was greatly moved by a sense of justice based on his understanding of
customary law. Sadly, he found that customary law had been superseded by the LMA. See also Hussein Mbwana v Amiri
Chongwe, Digest of Appeals from Local Courts (1963) Vo X per Spry J where he noted that “ I see no reason, therefore,
why brideprice should not be paid under customary law at the time when an Islamic marriage takes place just as it
frequently is on the celebration of an African Christian marriage.” See also Salum Athumani v Mwamini Hamisi 1983 TLR
107 (HC) where Bahati Ag J (as he then was ) applying Islamic law, held that “under Muslim law dowry is not returnable
after consummation of marriage and the position is even stronger where the husband has been found to be the guilty
party.”

2
In Basiliza Bobret Nyimbo v Henry Simon Nyimbo, High Court (DSM) Matrimonial Cause No 10 of 1983 (Lubuva J)
(Unreported) the respondent went through a Christian form of marriage at a Lutheran church in 1959. In 1965 he
purported to have that marriage dissolved extra-judicially by a Kadhi. Believing himself to be free of a marriage bond, the
respondent went through a second marriage ceremony with the petitioner. It was held that the second ceremony was a
nullity and did not result in a valid marriage.
treaties to which Tanzania is a party constitute sources of family law.
As will be noted later, courts do draw on these treaties, when
appropriate, to decide family law disputes.

1.5 Family Law and Social Change

It is appropriate to raise at the outset the question of family law and

social change. This is because, like legal pluralism, social change
cuts across all areas of family law. For example, family relations are
greatly affected by social change. Matters such as the age at which
one chooses to get married or the person one wishes to marry are
matters that may change over time with greater attainment of
education by women. Social change does also generate different
expectations in inter-spousal relations and may move a society
towards gender equality.

Parent and child relations are also affected by social change. Greater
social awareness of the rights of the child has the effect of
undermining certain aspects of parental authority while also
increasing parental responsibilities. Marital tensions may increase
due to the weakening of extended family bonds and the rise of the
nuclear family as a source of emotional support. The rise in the
divorce rate, especially in urban areas, is often associated with a
number of factors including the rise of the nuclear family as an
economic entity and a source of emotional support.

In recent years, Tanzania has experienced a sharp rise in

intermarriages between many ethnic groups. This development will
give rise to changes in relations between spouses and their children.
It will also generate change in the way children are raised. Relations
between in-laws will also change, including relations between
children and their grandparents as well as their extended family.

In sum a student of family law cannot ignore social change given that
it is a cross-cutting factor and generates forces that affect the day to
day application of family law. It also generates conditions that in time
may call for the need to reform the law in order to accommodate
change.

1. 6 Summary and Conclusion

This lecture has raised key and recurrent issues. It seeks to provide
to the student a convenient entry point into the subject of family law.
The lecture has identified the boundaries of the subject and offered
an outline of what family law seeks to do. The plurality of laws in
which family law is embedded has been identified as a cross-cutting
issue while also pointing at the sources of the subject. The
significance of social change to the study of family law has been
underlined and its potential to generate pressure for reform has
been stressed. The themes outlined above in this lecture will remain
with us throughout the entire course and need to be kept in mind at
all times.

References:

F Banda (2005) Women, Law and Human Rights: An African

Perspective, Hart Publishing, Oxford (esp pp 13-40).

G F A Sawyerr (1967) Internal Conflict of Laws in East Africa in

Sawyerr GFA (ed) East African Law and Social Change,
Nairobi, East African Publishing House pp 110-71

B A Rwezaura and U Wanitzek, Family Law Reform in Tanzania: A

Social-Legal Report, International Journal of Law and the
Family 2 (1988) 1-26

B A Rwezaura, The Integration of Personal Laws: Tanzania’s

Experience, Zimbabwe Law Journal Vol, 1 & 2, 85-96

E Cotran, Integration of Courts and Application of Customary Law

 in Kenya, East African Law Journal, Vol 4 (1968) 14-20

United Republic of Tanzania, Government Paper No. 1 of 1969

Government Proposals on Uniform Law of Marriage, (The White
Paper) Dar es Salaam, Government Printer.

United Republic of Tanzania, Law Reform Commission of Tanzania,

Report of the Commission on Law of Marriage Act, 1971 (No 5
of 1971) April 1994.

The Republic of Kenya, Report of the Commission on the Law of

Marriage and Divorce, The Spry Report, Nairobi, Government
Printer (1968)

2.0 FORMS OF MARRIAGE [LECTURE TWO]

2.1 Introduction

Before the Law of Marriage Act 1971 [Cap. 29 R. E. 2002] came into
force there were various forms of marriage recognized under the
personal and religious laws applicable to the communities residing in
Tanzania. After 1971 the Law of Marriage Act enacted uniform
provisions applicable to all forms of marriage while also permitting
the application of personal and religious laws in matters such as the
mode of celebrating a marriage. Hence, section 25 LMA states that
a marriage may be contracted in Tanzania, either in civil form, in
accordance with the religious rites of the parties or in accordance
with the customary rites of the parties. Apart from giving freedom to
the parties to contract a marriage in accordance with their personal
laws, the law also grants them the freedom to contract a civil
marriage irrespective of their customs or religious persuasion.

In this lecture, instead of discussing the procedure for celebrating

various forms of marriage under Tanzania law, we will, instead,
examine the forms of marriage recognised under the Law of
Marriage Act. We begin with the Civil marriage form, followed by
Christian form, the Islamic form, the customary form and finally,
what we may call, for want of a better term, the ‘Section 160’ form
of marriage.

BOX

At the end of this lecture the student will:

i) Acquire an understanding of the five forms of marriage that

are provided for under the Law of Marriage Act. These are:

a. The Civil form of Marriage with its unique status in that it

is open to anyone irrespective of his or her cultural or
religious affiliation;

b. The Christian form of Marriage, reserved for those who

profess the Christian faith;

c. The Islamic form of Marriage; reserved for the members of

the Islamic faith;

d. Customary form of Marriage; for parties who (or one of

them) belongs to a particular customary community; and

e. Section 160 form of Marriage; though not accepted by

certain judges as a form of marriage though its existence
remains difficult to deny.

ii) Will understand the link between the five forms of marriage
and the diversity of the people’s culture; their religious
affiliations; and the plurality of the country’s legal system

END OF BOX
 2.2 Civil Form of Marriage

The civil form of marriage is provided for under Law of Marriage Act
(LMA)[Cap 29 R.E 2002] under Part II (sections 18-35) which makes
provisions for the celebration of a civil form of marriage. According
to s 18(1) a man and a woman who desire to contract a marriage are
required to give a notice of their intention to marry to the Registrar
of Marriages at least twenty-one days before the wedding day. The
Registrar General, Deputy and Assistant Registrars-General are
appointed under sections 3-8 of the LMA. The notice of intention to
marry should contain a number of particulars as stipulated under s
18(2) (a) to (i). These particulars seek primarily to establish, among
other things, the date of the intended marriage, the identity of the
parties, their respective ages, their capacity to marry and the
intended form of marriage the parties wish to contract.

The primary object of the notice of intention to marry is to notify the

general public about the intended marriage. As a general principle, a
marriage is and must always be, a public event rather than a
clandestine or secret affair.3 Hence, the Registrar or registration
officer to whom the notice is made has the obligation to make this
intention known locally by such means as may be prescribed or as
are customarily used to make known matters of public importance.
Such notice enables any member of the public to file an objection to
the intended marriage on the ground that he or she is aware of facts
that constitute a legal impediment to marriage. See also s 24 LMA
where notice may be dispensed with by the Registrar General. There
is a laid down procedure under s 21 and s 22 LMA for determining
such an objection by way of court proceedings or adjudication by the
Marriage Conciliatory Board.

2.2.1 The status of a Civil Marriage

3
See section 28 LMA which provides for members of the public to attend the celebration of a civil marriage. In
the case of religious marriages, any member of that religious community or customary community may attend
the ceremony without being specifically invited.
At the outset it is important to stress the unique status of a civil
marriage in relation to other forms of marriage. First it is close to
the state legal system in that it is not aligned to a particular religion
or cultural group. It stands out as a form of marriage available to
anyone who qualifies to marry irrespective of his religious or cultural
background. Hence, it is provided under section 25 (1) LMA that a
person has the option either to contract a marriage in accordance
with his/her religious rites, customary rites or may choose to
contract a civil marriage.

It should be stressed further that the Tanzania civil marriage form

originated from the British colonial era. Historically, its origin is the
first English marriage law known as Lord Hardwicke’s Marriage Act
of 1753. Before 1971 the civil form of marriage was contracted under
the Marriage Ordinance (RL Cap 109). The civil marriage shares a
similar jurisprudence with most civil marriages in the Common Law
world such as Australia, Canada, the United States of America and,
of course, our East African neighbours, Kenya and Uganda. Indeed,
even the procedures for contracting a civil marriage found in the
LMA are taken with minor modifications from English law. Not only
that, the definition of marriage found in s 9(2) LMA is derived from
the famous case of Hyde v Hyde (1866) LR 1 P.&D. 130 where Lord
Penzance defined an English marriage as “the voluntary union for life
of one man and one woman to the exclusion of all others”

Civil marriages have traditionally been monogamous, thus answering

to Lord Penzance’s definition. It is still the case in most common law
systems, except Tanzania which departed from this tradition in 1971.
Section 29(c ) LMA states that after contracting a civil marriage,
parties my request the district registrar “to make an entry in the
register whether the marriage shall be monogamous or
polygamous..” The registrar has to satisfy oneself that both parties
consent to such an endorsement. This provision means that where
the entry is made that the said civil marriage is polygamous, then
such a civil marriage will become potentially polygamous. And the
male party to such a marriage retains the capacity to contract
another civil (or other form of) marriage with another woman or
women while his previous civil marriage remains subsisting.

Note further that a marriage that was by inception monogamous may

also be converted under s 11 LMA on the joint declaration of the
parties made before a judge, a resident magistrate or district
magistrate.

The procedure for contracting a civil marriage which is contained

under sections 18-29 LMA is straightforward and students are
strongly recommended to read and become acquainted with these
provisions.

2.3 Christian Form of Marriage

One way of understanding the Christian form of marriage is once

again to return to the history of English family law. Before the
enactment of the first Marriage Act of 1753, there was no specific
procedure, laid down by law, for contracting a marriage. The most
widely known form of marriage is the common law marriage which
historically could be formed by the parties saying to one another (in
turn) the following words: “I (mentioning his/her name) take you
(mentioning her/his name) to be my wife/husband. Thereafter the
parties would perform the first sexual act together known as
consummation of the marriage and begin living together as husband
and wife. These would be validly married. It did not matter whether
the exchange of these magic words took place in public or private.

In the case of Christians,. whether of the Church of England (after

1534-1555 and 1558 on) or of Rome, there was a requirement that
the exchange of vows take place at the outside the Church before an
ordained clergy. Additional procedures were added by the Church
especially the publication of banns on three consecutive Sundays in
the local church of the bride and the groom.

The enactment of the English first Marriage Act 1573 brought all
marriages under state control. But the Act also permitted the
Christian churches to continue to celebrate their marriage in
accordance with their existing procedures as long as they complied
with the fundamental provisions of the Act.

Though taking place later in time, a comparable arrangement was

followed in Tanzania. The Law Marriage Act, 1971 granted freedom
to various faiths and local communities to celebrate marriages in
accordance with their faiths as long as they complied with the
fundamental principles of marriage laid down by the LMA. Hence,
section 25 (1)(b) LMA states that a marriage may be contracted in
Tanzania, where both parties belong to a specified religion,
according to the rites of that religion. Section 30(1) states that a
marriage may be celebrated according to the rites of a specified
religion in any place habitually used as a place of public worship or a
place of gathering by the followers of that religion, by a minister of
that religion who has been licensed in that behalf by the Registrar
General.

Section 30(2) LMA further states that the Registrar- General may, on
the application of a proper authority of any specified religion license
any minister of that religion to celebrate marriage. Finally, s 25(3)
LMA provides that for purposes of this Act, a marriage in Christian
form means a marriage celebrated in a church in the manner
recognised by the Christian faith or by any denomination or sect of
that faith. In sum, the LMA seeks to facilitate marriages in
accordance with the existing faiths and customs as long as these
marriages comply with the fundamental conditions of the LMA. As
will be noted below, the same principle applies to customary and
Islamic marriages

2.4 Islamic Form of Marriage

Section 25(3) LMA states that for the purposes of this Act, a
marriage in Islamic form means a marriage contracted in the manner
recognised by Islam or by any school or sect of that faith. Section 30
(3) LMA states that a marriage may be celebrated in Islamic form by
any kadhi or by a registration officer who is a Muslim. Furthermore,
section 30(4) states that a Muslim priest or preacher may, on
application made by him, be licensed as a kadhi either generally or
for any specified community. Once licensed, the priest or kadhi, as
the case may be, acquires the authority to celebrate a marriage in
accordance with the Law of Marriage Act. Finally, section 32(a) LMA
states that it shall be the duty of every kadhi or registration officer to
whom notice has been given that a marriage is intended to be
contracted in Islamic form; so far as is reasonably practicable, to
attend the celebration of that marriage.

It is clear from the foregoing provisions that the LMA leaves enough
room to the intended parties to an Islamic marriage to contract their
marriage in the form recognised by their religion as long as they
comply with the essential conditions laid down by the LMA. In this
connection, the rules governing the formation of an Islamic marriage
are not specifically stipulated in the LMA. They are to be found in the
existing body of Islamic law and practice. This is clear from the
provisions of s 25(3) which states that a marriage in Islamic form
means a marriage contracted in the manner recognised by Islam or
by any school or sect of that faith.4

2.5 Customary Form Marriage

Section 25(1)(d) LMA states that a marriage may, subject to the

provisions of the LMA, be contracted in Tanzania where parties
belong to a community or to communities which follow customary
4
See s 38(2) which further accommodates Islamic marriages by permitting the bride to be absent at the
wedding as long as her male guardian, (the walii) is present to consent to the marriage on her behalf.
law, in accordance with the rites of the customary law. The LMA
does not lay down a specific procedure for contracting a customary
marriage. There are nonetheless indications in the LMA regarding,
notice of intention to marry which is anticipated by section 32(b)
LMA. The latter section states that it shall be the duty of every
registration officer to whom notice has been given that a marriage is
intended to be contracted according to the rites recognized by
customary law, so far as is reasonably practicable, to attend that
marriage. It seems that notice of intention to marry under customary
law is not mandatory. This is in contrast to the notice required for
civil forms of marriage.5 The reason, as noted before, is to allow as
much freedom to the various faiths and local communities to
regulate their procedure for contracting a marriage as long as they
comply with the essential aspects such as those relating to capacity
to marry. In sum, subject to the overriding provisions of the LMA, a
customary marriage is a marriage recognised by the customary law
of the parties.6 It is important to note however that parties to a
customary marriage are required to register their marriage and
obtain a marriage certificate as provided by s 43(5)LMA. Although
failure to register a marriage does not affect it is advantageous to
have a marriage certificate should there be a need to prove the
existence of the said marriage.7

2.6 Section 160 Marriage

Section 160 (1) LMA states that where it is proved that a man and a
woman have lived together as man and wife for a period of at least
two years and have, during that period, acquired a reputation of
being husband and wife there will arise a rebuttable presumption

5
But then see section 41(c) which states that a marriage complies with all other requirements of the LMA
shall be valid for all purposes notwithstanding the failure to give notice of intention to marry

6
See s 25(1)(d) LMA

7
See Ahmed Ismail v Juma Rajabu 1985 TLR 204
that the two are duly married. The history of section 160 is long and
still unfolding; its intricacies are also diverse. These aspects will not
be discussed in detail in this lecture. 8 However, what cannot be
avoided in this Lecture is to highlight to the student that there have
been sharp differences between the eminent judges in the
interpretation and application of section 160 LMA. Some judges have
in effect held that there exists a fifth form of marriage under Section
160.9

As noted by Mwalusanya J,

“The only three important elements to constitute a presumption of

marriage are:

a) that the parties have cohabited for [at least] two years;

b) the parties have acquired a reputation of being husband and

wife;

c) that there was no formal marriage ceremony between the said

couple.10

8
For a detailed discussion of s 160 unions, see Bart Rwezaura, The Proposed Abolition of De Facto Unions in Tanzania: A
case of Sailing against the Social Current’ Journal of African Law, (1998) 42, 187-214 and B A Rwezaura, “The Court of
Appeal of Tanzania and the Development of the law of domestic relations”. Vol 16 No 2 (1989) Eastern Africa Law Review
146-186 esp. 159-164

9
See John Kirakwe v Iddi Sinko 1989 TLR 215 (HC) per Mwalusanya J; Elizabeth Salwiba v Peter Obara [1975]
LRT n 52, Raphael Dibogo v Flabianus Wambura 1975 LRT n 42. In Theresia Msiwao v Mwamba Mohamed
(DSM) High Court (PC) Civ App No 10 of 1978 the High Court held that in cases where the presumption under s
160 has not been rebutted, the parties remain husband and wife and will be so regarded by the law until they
have taken “the necessary steps to bring the relationship to an end”. See also Ally Mfaume Issa v Fatuma
Mohamedi Alkamu 1974 LRT n 67 (per Kisanga J).See also Salum Itandala [1982] TLR 333. And more recently,
F. Twaibu J has also held that parties were validly married in terms of s 160 (1) of the Law of Marriage Act (p
29( R. E .2002). See Joseph Peter v Fatuma Omary, DSM High Court Civil App No 35 of 2011 (date of decision
11.04.12).

10
See John Kirakwe (above)
 11
That is enough to constitute a marriage.”

In Festael Sadikiel Macha v Salum Shaban12 Manento JK upheld the

decision of the lower court which dissolved a ‘section 160’ form of
marriage and ordered division of assets under s 114 LMA. As noted
by the appellate judge, “it was proper for the trial primary court
magistrate to rule that the appellant and husband were husband and
wife, and proceed to deal with the issue of dissolution of the
marriage, and having found that the marriage had broken down
irreparably, granted the divorce.”

Other judges, however, have taken the opposite position, arguing

that once it is proved that the parties did not in fact go through a
marriage ceremony that is sufficient to rebut the presumption of
marriage under s 160 LMA and that means there is no marriage. 13
The leading case on this view and which has been followed by a
number of eminent judges is Francis s/o Leo v Paschal Simon
Maganga14 where Mfalila J (as he was then) held that the
presumption that a man and a woman were duly married may be
rebutted if it can be proved (among other things) that they did not go
through a marriage ceremony. According to Mfalila J, the words ‘duly
married’ refer to the forms and procedures for marriage provided for
under the Law of Marriage Act. “Therefore all that is required to
rebut such presumption is to establish that the two never when
through a ceremony of marriage recognised under the Act”

The foregoing position was endorsed by the Court of Appeal in

11
See also Hadija Hamis v Moses Ndesanjo (Singida High Court Matr App No 2 of 1992 (per MwalusanyaJ)

12
DSM High Court Civil App No 64 of 2004 per Manento JK (unreported) (decided on 13 June 2006)

13
Francis Leo v Paschal Simon Maganga [1978] LRT n 22 (per Mafalila J); Harubushi Seif v Amina Rajabu 1986 TLR 221 (per
Korosso J); Zaina Ismail v Saidi Mkondo 1985 TLR 239 (Kapoor Ag J); Anastasia Mapunda v Agathon Mbepera (Mtwara)
High Court Civ App No 45 of 1992 (Kazimoto J)

14
See above.
Hemedi S Tamim v Renata Mashayo.15 It would appear therefore,
consistent with the doctrine of precedent, that the judges who hold
that absence of a ceremony of marriage is sufficient to rebut the
presumption of marriage under s 160(1)LMA have, at least for now,
the support of the highest court.16

Section 160 marriage arise primarily in cases where parties who

have capacity to marry under LMA do not undergo any ceremony of
marriage but instead live together for at lease two years as if they
are married and, in due course, do acquire a reputation of being
married.17 There are others who go through an incomplete marriage
ceremony (usually under customary law) and several years later try
to have their marriage terminated as if it was a regular form of
marriage. But where it is shown that the parties did not regard one
another as husband and if, then, obviously the presumption of
marriage under s 160 will not arise.18

2.7 Conversion of Marriage

Section 11 of the Law of Marriage Act states that a marriage

contracted in Tanganyika may be converted either from monogamous
to potentially polygamous; or if the husband has one wife only, from
potentially polygamous to monogamous. Such conversion is effected

15
1994 TLR 197 (CA) (Omar, Mnzavas and Mfalila JJA) The judgement in this case was written by Mfalila JA

16
Note that the Court of Appeal does not answer (in the above case) several questions raised by s 160 including cases
where there is an incomplete marriage ceremony such as in John Kirakwe v Iddi Sinko 1989 TLR 215

17
For a discussion on initial capacity to marry see Charles Ruyembe v Mwajuma Saleh (citation?) Note also the issue of
lack of initial capacity to marry came up in Francis s/o Leo (cited above) and Mfalila J held that lack of initial capacity to
marry is sufficient evidence to rebut the presumption under s 160 LMA. But as I have argued elsewhere, this is a difficult
proposition because it presupposes that the law can presume against itself. In other words, the law cannot prohibit a
marriage where parties have no initial capacity to marry and still create a presumption, albeit rebuttable, in favour of such
a marriage.

18
That is: no presumption from the beginning.
by a declaration made jointly by the husband and wife, that both of
them have consented to the conversion. A declaration to convert a
marriage under s 11 LMA shall be made before a judge of the High
Court, a Resident Magistrate or a District Magistrate, who shall put
in writing such a declaration. The declaration must also be signed by
the husband and the wife and by the judicial officer before whom it
has been made. Thereafter a copy of such declaration must be
immediately transmitted to the Registrar-General of Marriages and
Divorces appointed under s 3 LMA.

Section 11(4) LMA provides that no marriage shall be converted

otherwise except as provided above. Moreover, no marriage between
two Christians which was celebrated in Christian form shall be
converted from monogamous to potentially polygamous so long as
both parties continue to profess the Christian faith. The foregoing
prohibition to conversion applies notwithstanding that the marriage
was preceded or succeeded by a ceremony of marriage between the
same parties in civil or any other form.

It is helpful to note the background to section 11 LMA. As noted

above, several provisions of the LMA recognise and seek to
accommodate the religious and cultural plurality of the Tanzanian
community by allowing couples a certain degree of flexibility in the
organization of their family relations and the form of marriage they
wish to contract. The provision for conversion is an extension of this
policy of the LMA. Moreover, the prohibition to convert Christian
marriages was also brought in to accommodate the concerns of
certain Christian leaders who objected to the conversion of Christian
monogamous marriage.19

2.8 Summary and Conclusion

19
Note that the prohibition applies as long as both parties continue to profess the Christian faith. Thus a Christian couple
who initially contracted a Christian monogamous marriage may convert their marriage to potentially polygamous marriage
if one or both parties cease to belong to the Christian faith.
The existence of five forms of marriage is clear evidence that
Tanzania is a country of many cultures and religions. Furthermore,
the fact that these forms of marriage are recognized and regulated
under one umbrella legislation, the LMA, reflects the sensitivity of
the legal system to the country’s cultural pluralism. In the lectures
that follow the strands of sensitivity to cultural and religious
pluralism will continue to come up in our discussion. It is important
to remember that family law is about people and how they regulate
their relationship from day to day. The next lecture considers
problems that can arise from a failure to comply with the legal
procedures for contracting a marriage and how this affects the
validity of a marriage.

Bibliography

Bart Rwezaura ‘Presumption of Marriage in Tanzania’ (1985) 18

Verfasung und Recht in Ubersee 169-179.

Bart Rwezaura, ‘The Court of Appeal of Tanzania and the

Development of the law of domestic relations”. Vol 16 No 2 (1989)
Eastern Africa Law Review 146-186 esp 159-164

Bart Rwezaura, The Proposed Abolition of De Facto Unions in

Tanzania: A case of Sailing against the Social Current’ Journal of
African Law, (1998) 42, 187-214

United Republic of Tanzania, The Government White Paper No 1 of

1969: Proposals on Uniform Law of Marriage, Dar es Salaam.

C O Kaisi, Women under Presumption of Marriage; A Critical

Analysis of the Law, Practice and Social Implications of s 160 of the
Law of Marriage Act, 1971. LLM Thesis, University of Dar es Salaam
(1994)
3.0 NULLITY : VOID CEREMONY [LECTURE THREE]

3.1 Introduction

Although as noted above the law has given much freedom to

customary communities and religious groups to contract marriage in
accordance with their own personal laws and procedures, the same
law has laid down a number of significant requirements which must
be observed by everyone otherwise the purported marriage will be
defective or totally non-existent. Some of these requirements relate
to the inherent capacity of the parties to marry. Others are
concerned with the failure of the parties to observe the procedure
relating to the formation of marriage. Others relate to what the
parties fail to do after a valid marriage ceremony has taken place
such as refusal to have the marriage consummated.

Another point to bear in mind at this stage is to draw a clear

distinction between void ceremonies and voidable marriages.
Although some of the differences between the two originate from
English law and canon law and reference is often made in English
family law textbooks about void and voidable marriages, the Law of
Marriage makes matters much simpler by making reference to void
ceremonies under s 38 LMA and voidable marriages under s 39 LMA.

It is also essential to clear the potential for confusion caused by the

existence of sections 13-17 LMA and sections 38-41. Students will
note that sections 13-17 impose restrictions to marriage. They are
primarily concerned with spelling out those persons who lack legal
capacity to marry. Thus a person who lacks legal capacity to marry
cannot successfully undergo a ceremony of marriage. If he does go
through a ceremony of marriage, that ceremony will not lead to a
valid marriage. We shall put these two sets of section together and
discuss them under void marriage ceremonies. The next set include
sections 39-41 which deal with voidable marriages. The distinctions
between void marriage ceremonies and voidable marriages will be
discussed at the end of this lecture.

BOX

At the end of this Lecture the Student will:

1. Acquire a good understanding of the meaning of capacity to

marry and the legal consequences that ensue when parties
purport to go through a marriage ceremony notwithstanding
their lack of capacity. A party to a marriage lacks capacity to
marry when:

a) He or she has not attained the minimum age of

marriage;

b) Both parties are within prohibited degrees of

relationship;

c) He or she is party to an existing valid marriage;

d) He or she has not consented to the marriage;

e) Being female contracts the marriage during the period

of Iddat;

f) The marriage is not intended to last for the parties’ joint

life;

g) Parties are not respectively male and female;

END OF BOX
 3.2 Void Marriage Ceremonies

i) Minimum Age

Section 38 LMA states that a ceremony purporting to be a marriage

shall be a nullity, if either party to the ceremony is below the
minimum age for marriage. Section 13 LMA sets the minimum age
for marriage at 18 years for males and 15 years for females.
Notwithstanding the above provisions, the court has power, on
application by one or both parties, to permit either or both parties to
marry at a lower age provided the applicant has reached the age of
fourteen and the court is satisfied that there are special
circumstances which make the proposed marriage desirable. The
court to which such an application is to be made includes the
Primary Court, District Court, Resident Magistrate’s Court and High
Court.20

Two points need to be noted at the outset. The first is the differential
age of marriage between the male and female. Women’s and
children’ rights activists have persistently pointed out that the law
should raise the minimum age of marriage for girls to at least 18
years. Many would like to see the minimum age of 21 years imposed
for both male and female.21

The second point is that even if the age of marriage were raised by
law to 21 years, there are a number of economic and cultural factors
that stand in the way of the law. They include cultural and religious
factors that stress marriage as a woman’s vocation and destiny. They
do not see any good reason for waiting until the girl attains majority

20
See section 76 and s 2(1) LMA

21
See the Law Reform Commission of Tanzania, Report of the Commission on Law of Marriage Act 1971 (April 1994)
which noted in its terms of reference that “ the age of 15 which is minimum for marriage has been criticized as being
discriminatory of female members. It has also been argued that to a girl of the age of 15, marriage is unhealthy and
dangerous to her life as well as to her issues”. Comparable criticism has been made of this provision from various
stakeholders, including suggestions made in 2009 during the debates on the Law of the Child Bill.
age. Such waiting exposes the girl to pre-marital pregnancy which is
viewed by many as another hazard because it lowers the girl’s
chances of being married. Economic factors also account for a lower
age of marriage for girls. In this context parents may be keen to
receive bride wealth on the marriage of a daughter and to use the
money to balance the domestic budget. In some cases parents may
wish to avoid the cost of educating their daughters by preferring to
have them married as quickly as possible. Some school girls are
instructed by parents to do badly in their std seven examinations so
they may not be selected to join form one.

ii) Prohibited Degrees of Relationship

A ceremony purporting to be a marriage shall be a nullity if the

parties thereto are within the prohibited relationships of
consanguinity (s 38(1)(b) LMA). Persons who cannot marry by reason
of being in prohibited degrees of relationship include: grandparent,
parent, child, grandchild, sister, brother, great-aunt, great-uncle,
aunt, uncle, niece, nephew (s14(1) LMA). For purposes of the law,
grandparent, grandchild, great- grandchild, great-uncle and great-
aunt of any degree whatsoever are also prohibited marrying ach
other (s 14(6)).

According to s 14(5) LMA, relationship of half-blood shall be as much

an impediment to marriage as if it was of full blood and it shall be
immaterial whether the person was legitimate or illegitimate.

It is also prohibited for a person to marry the grandparent, parent,

child or grandchild of his or her spouse or former spouse. It is also
prohibited for a person to marry the former spouse of his or her
grandparent, parent, child or grandchild. Parties who are related
through adoption are also in prohibited degrees of relationship.
Hence, no person shall marry a person whom he or she has adopted
or by whom he or she was adopted (s 14(4) LMA).

It is worth noting that the relationship of adoption is confined to the

immediate parties, that is, to the adoptive parents and the adopted
child. However, if it is accepted that an adopted child has the same
legal status as if he or she was a natural child of the adoptive parent
or parents, then all the prohibited relationships that affect the
natural children of the adoptive parents should also apply to him or
her. As the law stands, it is permissible for an adopted child to marry
the child of her adoptive parent or parents.

iii) Incapacity Due to Existing Marriage

As a general rule no woman is permitted to marry more than one

husband at the same time.22 A man on the other hand is permitted to
marry more than one woman during the existence of the first
marriage if his first marriage was polygamous. Section 10 LMA
states that marriage shall be of two kinds, namely, those that are
monogamous and those that are polygamous or intended to be
polygamous, that is, potentially polygamous. Section 15 LMA states
that no man, while married by a monogamous marriage, shall
contract another marriage with another woman. In Basiliza
Nyimbo23 the respondent went through a monogamous marriage at a
Lutheran Church in Dar es Salaam on 13 th December 1959. On 8h
May 1965 the respondent purported to dissolve the said marriage
before a Kadhi in Dar es Salaam. And two weeks later the respondent
went through another monogamous marriage with the petitioner at
St Joseph Cathedral on 22nd May 1965. On a petition for nullity by
22
Section 15(3) LMA stares that no woman who is married under whatever form of marriage shall, while that
marriage subsists contract another marriage. In Ramadhani Said v Mohamed Kilu 1983 TLR 309 (Lugakingira J),
the court noted the provisions of s 15(3) LMA adding that our law does not permit polyandry but punishes it.
It referred to s 152 LMA which states in effect that it is an offence for a married woman to be a party to a
marriage ceremony where she purports to marry another man.

23
See Basiliza Bobret Nyimbo v Henry Simon Nyimbo, High Court (DSM) Matrimonial Cause No 10 of 1983 (Lubuva J)
(Unreported)
the petitioner it was held that:

“the marriage celebrated between the petitioner and the respondent

on 22nd May 1965 illegally is declared null and void”24

It is also prohibited for a man who is party to a subsisting

polygamous marriage, or a potentially polygamous marriage, to
contract another marriage in a monogamous form with another
woman. It is, however, permitted for parties who are already married
to undergo another ceremony or ceremonies of marriage, as long as
these subsequent ceremonies will not alter the status or legal
consequences of the first marriage.25 The foregoing provision is
based on the well known practices of many Tanzanians who, in their
desire to meet the requirements of their cultures, religions and even
state law, tend to undergo more than one marriage ceremony. It is
therefore common for couples to undergo a customary marriage
ceremony to be followed, a few days later, by a church ceremony or
one at the registrar of marriages. Except for Christian marriages
where strict provisions have been laid down under LMA section 11
(5), the general rule for all others is that if the first ceremony of
marriage has been effective in bringing about a valid marriage, then
any subsequent ceremonies will not change the nature of that
marriage nor its legal effects.

iv) One Party not Consenting

Consent to marriage has always been held to be a fundamental

precondition to the validity of a marriage ceremony. Indeed,
marriage is defined under section 9(1) as a voluntary union of a man
and a woman. Hence, section 38(1)(e) LMA states that a ceremony
24
It should be noted however this was a void ceremony rather than a void marriage that was declared null and void as
provided under s 38 LMA. The court’s power to declare such a ceremony a nullity is found under s 94(1) and (2)(a)LMA
although no reference was made to foregoing provision.

25
The only exception to the above rule is the case where parties convert their marriages under section 11 of
the LMA.
purporting to be a marriage shall be a nullity if the consent of either
party is not freely and voluntarily to that marriage. Section 16 (2)
stresses the same point by further stating that consent shall not be
held to have been freely or voluntarily given if the party who
purported to give it was influenced by coercion or fraud; was
mistaken as to the nature of the ceremony or was suffering from any
mental disorder or mental defect, whether permanent or temporary,
or was intoxicated to such an extent as not to fully appreciate the
nature of the ceremony.

The primary factors that vitiate consent fall under three categories,
namely, a) duress or coercion (generating fear in the victim); b)
mistake (presumably arising from fraud) and c) mental disorder or
mental defect. These three are discussed briefly below by
considering case law and how judges have interpreted these
provisions. It is important at this juncture to reflect on sections 38(1)
(e), 16(2) and 39(a) (ii),(iii) and (iv). The question to consider is to
determine the form of mental illness, insanity and fraud that would
vitiate consent and that which merely renders the marriage voidable.

v) Marriage during Iddat

According to Islamic law a divorced woman or a widow has to

observe a period of confinement called Iddat, normally four months
and ten days before contracting another marriage. This requirement
is contained under section 38(1)(j) LMA and constitutes an
impediment to marriage.

According Islamic law there are two types of Iddat, namely the Iddat
of death and the Iddat of divorce. Although this is not expressly
mentioned, it appears that Iddat is intended to secure the status of
the child who might have been conceived shortly before the divorce
or before the death of the husband. For example, under Islamic law,
if a man dies leaving his widow pregnant, her Iddat lasts until she
delivers the child. Thus her Iddat will cease any time even if she
deliver the child one day or one hour after the death of the husband.
Similarly, the Iddat for divorce is compulsory only if the divorced
woman did engage in sexual intercourse with her husband before
divorce or if they met in privacy and thereafter her husband divorced
her. It seems therefore the primary object of Iddat is to protect the
husband’s right to any offspring that might otherwise be lost in the
aftermath of divorce or death. This object however is not, and need
not be, spelt out in the LMA.

vi) Marriage : Not for Life

A marriage which is expressed to be of a temporary nature or for a

limited period is not recognised by the LMA. (s38(1)(i)). Section 12
LMA also states, among others, that a marriage shall subsist until
determined by death of either party, by a decree of divorce or
annulment. As we have noted above, a marriage is intended to last
for the joint lives of the parties. The fact that the same law makes
provisions for the dissolution of marriage (see Part VI LMA) does not
mean that parties are frees to fix a number of years during which
their marriage may endue. This is one of the matters that distinguish
a marriage from an ordinary contract. What the law requires is that
parties should honestly and truthfully enter into the marriage
intending that it will last for the joint lives. What will happen during
their marriage is irrelevant.

It is also a question of social policy in that society has to create a

stable environment for the birth and upbringing of the next
generation. It would be absurd for society to allow parties to contract
a marriage for a short period while leaving open the whole question
of who should have responsibility for the care and upbringing of
children.

vii) Not between Man and Woman

Although, so far as I am aware, the question of parties to the

marriage being of the same sex has not been litigated in Tanzania
courts, it is important for students to be aware that a valid marriage
may only be formed between a man and a woman; not between two
women or two men. Section 9(1) LMA defines a marriage as “a
voluntary union of a man and a woman..” At this juncture we need to
consider two aspects of this question; that is, the law’s stance on
parties one of whom has undergone successful gender re-assignment
and cases where parties are simply of the same gender.

In Corbett v Corbett (otherwise Ashley) (No 1)26 the petitioner was

male and the respondent was formerly a male who had undergone
surgical gender reassignment (sex-change). The parties went
through a ceremony of marriage and the issue in this case was
whether their marriage was valid. Justice Ormrod held that a
person’s biological sex is fixed at birth (at the latest) and cannot be
altered thereafter by medical intervention. Although Tanzania courts
have not had an opportunity to decide a similar case, it is most likely
that they would follow the decision in Corbett.27 It should be noted
nonetheless since 1970 when Corbett was decided, the global
community has gradually adopted a wider view of the definition of
marriage and Corbett itself has was overturned by the English
Parliament in 2004.28 A number of western jurisdictions have also
recognised gender-reassignment as having legal consequences.29 The
potential impact of such developments though seemingly happening
far away from Tanzania cannot be ignored.

26
[1970]2 All E R 33

27
See P M Bromley and N V Lowe, Bromley’s Family Law 8th Ed (1992) Butterworths p 34

28
See the English Gender Recognition Act of 2004 which permits trans-gender people to change their legal gender and
acquire new birth certificates. The acquired birth certificate accords the recipient full recognition of his or her newly
acquired gender for all purposes including marriage. This law has in effect overruled Corbett except for those (in Englad
and Wales) who do not acquire new birth certificates.

29
HK and Robin Emerton
 viii) Other Irregularities

It should be noted that although on the face of it the contravention of

section 38(1)(d),(f), (g), and (h), will also render the ceremony
defective, these provisions need to be read together with other
sections of the LMA which apparently weaken or in some cases make
them superfluous. For example, sub-section 2 of section 38
effectively removes the need for a party’s presence at the marriage
ceremony.30 Similarly, section 41 LMA also removes a number of
restrictions including failure to give notice of intention to marry,
marrying despite the non-removal of notice of objection and “any
procedural irregularity” which seemingly covers any shortcoming as
long as the fundamental prerequisites laid out by the LMA are
complied with. As noted by Lugakingira J “failure to give notice of
the intended marriage, absence of the ‘shangwe za harusi’ or any
other procedural irregularity in the ceremony are not matters which
would affect the validity of the marriage if in all other respects it
complies with the express requirements of the Act.”31

4.0 NULLITY : Voidable Marriage [LECTURE

FOUR]

4.1 Introduction

Before discussing the grounds that make a marriage voidable, it is

best first to draw a distinction between a void ceremony and a
voidable marriage. The first distinction is that a void ceremony does
30
Although, as noted above, this provision was intended to save Islamic marriages, the way it is drafted
suggests it is capable of application to all forms of marriage. In practice, however, the person officiating at the
marriage, such as a minister of religion, is more likely to insist that both parties must be present at the
ceremony.

31
See Ramadhani Said v Mohamed Kilu 1983 TLR 309
not give rise at any point to a marriage between the parties whereas
a voidable marriage is considered to be valid until it is set aside by a
decree of court. Thus s 40 LMA clearly states that a voidable
marriage is for all purposes a valid marriage until it is annulled by a
decree of the court. Where the court is moved to set aside a voidable
marriage, care is taken under s 98 (1)LMA to protect the status of
the children of the union and any acts that were lawfully done by
them on the assumption that they were validly married are not
nullified nor rendered unlawful.32

The second distinction is that no proceedings can be taken to

challenge the validity of a voidable marriage after the death of one or
both parties. But in the case of a void ceremony a declaration can
still be issued after the death of one or both parties stating that a
ceremony of marriage between the parties was void in law and did
not result in a valid marriage.

The third and final distinction is that in relation to a voidable

marriage only the parties to the marriage have the right to petition
for nullity. And certain parties to the marriage are excluded from
petitioning. For example, only the aggrieved party may petition.
Hence, a party who has wilfully refused to consummate the marriage
is not entitled to petition for nullity on the ground of non-
consummation (s.97(1)LMA).

Moreover, where the petition is founded on the ground that at the

time of marriage the respondent was subject to recurrent attacks of
32
Unfortunately, the law is still too harsh on the parties to a voidable marriage in that it does not grant them
any termination reliefs such as division of matrimonial assets or maintenance. It will be argued later that this
aspect of Tanzania law has remained backward while in other jurisdictions a nullity decree has almost the
same legal effects as a decree of divorce. But some judges have seemingly ignored this by granting such reliefs.
In Basiliza Dobret Nyimbo v Henry Simon Nyimbo, Matrimonial Cause No 10 of 1983 (DSM), Lubuva J noted
that although “the marriage had been declared null and void that would not mean the end as well of the
responsibility over the children born of the marriage on the part of the parents.” The judge proceeded to

grant custody and made maintenance orders in favour of the children of that relationship.
epilepsy or insanity or was made pregnant by a man other than the
husband, or was suffering from venereal disease in communicable
form, the court shall not grant the decree unless it is satisfied that
the petition was filed within one year of the marriage; and that at
the time of the marriage the petitioner was ignorant of the fact
alleged; and that marital intercourse has not taken place with the
consent of the petitioner since the discovery by the petitioner of that
fact.

And where the ground for nullity is based on lack of parental consent
or the consent of the court under s 13(2) and s 17(2) LMA, only the
person who had the right to consent is permitted to challenge the
marriage (s 97(2) LMA).

In the case of a void ceremony, however, there are no such

restrictions. Any interested party may petition the court for a
declaration that a ceremony purporting to be a marriage was in law
a nullity (s 94(1)LMA).

Let us now examine the individual grounds on which a petition for

nullity can be based.

BOX

At the end of this Lecture the Student will:

1. Acquire an understanding of:

a) the concept of a void ceremony as opposed to a voidable

marriage,

b) the legal safeguards placed to protect parties to a voidable

marriage and their children,
 c) the grounds that make a marriage voidable include:

a. non-consummation; lack of parental consent when party

is below 18 years; where, at the time of marriage, the
prospective wife is pregnant by a third-party; where, at
the time of marriage, one of the parties is infected with
venereal diseases; one of the parties suffers from
insanity or epilepsy.

d) the legal consequences following a court decree that a

marriage is voidable,

e) the relationship between nullity of marriage and ‘Section 160

marriage’.

END OF BOX

4.2 Non-Consummation of Marriage

Section 39(a)(i) LMA states that a marriage shall be voidable if at the

time of the marriage either party was incapable of consummating the
marriage. It shall also be voidable if the marriage remains
unconsummated due to the wilful refusal of one of the parties to
consummate it (s 39(b) LMA).33

Consummation of marriage takes place when parties to the marriage

perform a normal sexual act subsequent to (not before) the ceremony
of marriage. There are interesting cases mainly from England and
other foreign jurisdictions providing a careful analysis of what
constitutes or falls short of consummation.34 However, these cases
arose from an earlier era when divorce was either non-available or
33
In Mohamed Ndwata v Hamisi Omari 1988 TLR 137 a husband was granted a nullity decree by a Primary Court on the
ground that his wife had unreasonably refused to have the marriage consummated.
highly restricted and so many couples resorted to nullity proceedings
as a way out of a difficult marriage.

With the liberalization of divorce law in several jurisdictions, the

importance of the law of nullity declined rapidly. As noted in 1989 by
Lincoln J in A v J (Nullity Proceedings), “nullity proceedings are
nowadays rare, though not wholly extinct.”35 That, in appropriate
cases, it is far better for parties to petition for divorce rather than
embarrassing one another by making public disclosure of their
intimate relations and difficulties. This advice should be taken more
seriously by Tanzanian litigants where a court has no jurisdiction to
order division of assets or to make financial provisions after making
the nullity decree. This is unlike the situation in divorce and
separation where courts have such jurisdiction.

4.3 Insanity, Epilepsy, Venereal Disease and Pregnancy by

Third-Party

Section 39(a) (ii) LMA states that a marriage shall be voidable if at

the time of the marriage either party was subject to recurrent
attacks of insanity or epilepsy. Section 39(a)(iii) and (iv) also state
that a marriage shall be voidable if at the time of the marriage either
party was suffering venereal disease in a communicable form or (iv)
the wife was pregnant by some person other than the husband.

According to Rebecca Probert before 1937 English family law did not
provide remedy to an innocent party who was a victim of a
fraudulent concealment by the other party of the fact that he or she
was suffering from mental illness; was infected with venereal
disease, or was pregnant by a man other than her husband. Since
these conditions existed at the time of marriage, the innocent party
34
See Rebecca Probert, Cretney’s Family Law, 5th Ed. Sweet & Maxwell (2003) pp37-47.

35
[1989] FLR 110 at 111.
could not petition for divorce on the ground, for example, of adultery,
where wife was found to be pregnant and similarly where the
husband or wife was already infected with venereal disease at the
time of marriage.

In order to remove such anomaly the law was amended to create this
and other grounds mentioned below. In this particular context, the
law acknowledges the fact that although the party may have given
consent to marriage and may well have understood the
responsibilities marriage entails, yet his or her mental illness makes
that party “incapable of carrying on a normal married life”36

The 1937 amendments were incorporated in the defunct Matrimonial

Causes Ordinance (Cap 364) and later in the Law of Marriage Act
1971. There are three cumulative limitations under s 91(1) (a)(i) to
the use of this section. The first is that before granting the decree,
the court must be satisfied that the petition was filed within one year
of the date of marriage; that at the time of marriage the petitioner
was ignorant of the fact alleged; and that marital intercourse has not
taken place between the parties with the consent of the petitioner
since the discovery by the petitioner of that fact. The three
limitations are intended to ensure that the petitioner is entirely
ignorant of the facts alleged, has not condoned the respondent’s
condition and has been vigilant in pursuing the remedy under the
law.

4.4 Party below 18 and lacks Parental Consent

Section 39(c) states that a marriage shall be voidable if the wife had
not attained the age of 18 years and consent to the marriage as
required by section 17 had not been given and the court sees good
and sufficient reason to grant a decree of nullity. There are two
limitations to the invocation of the above section. The first is that a
petition under the above section must be filed before the wife attains
36
Rebecca Probert,, op cit (2003) at p43
the age of eighteen years (s 96(1)(b)). The second limitation is that
under s 97(2) a petition based on lack of parental consent can only
be brought by the parent or guardian who was entitled to give such
consent.37

The current law governing minimum age for marriage has been
criticised by human rights advocates on the ground that it is
discriminatory in that it prescribes a lower age of marriage, i.e 15
years for females and 18 years for males. It has been argued that
there must be an equal minimum age of either 18 or 21 years for all.

4.5 Legal Effects of Nullity Decree and Remedies

Section 96 LMA empowers the court to grant a decree of annulment

in respect of any marriage which is voidable under s 39 of the Law of
Marriage Act. Regarding the effect of the decree, s 98(1) states that
parties to a marriage which has been annulled by court decree shall
be deemed never to have been married. The retrospective operation
of the decree has a long history dating back to the Canon law era
reflecting the notion of indissolubility of marriage. According to
Canon law, a valid marriage endures for the life of both parties or
one of them and cannot be dissolved by a court of law. 38 In the case
of a void or voidable marriage, the court does not dissolve the
marriage but merely declares an existing fact; that is, the parties
have never in the eye of the law been husband and wife. Hence, until
the enactment of the English Matrimonial Causes Act of 1857
divorce was possible only by an Act of Parliament. Therefore in line
with the doctrine of Canon law, all annulment decrees were worded
37
Section 97(2) appears to suggest the possibility of parental consent being required for a male party to the
marriage. This is due to the use of the words “he or she” instead of only she as provided in section 13(1) LMA.
But in the case of males who are below the minimum age of 18 years, only the court has discretion to gra ant
consent under s 13(2)LMA.

38
What God has put together no man can put asunder…ref
to take effect retrospectively.

Hence as noted above, even after 1857, divorce was still restrictive
and so parties continued to resort to nullity proceedings in order to
get out of a difficult marriage. With the liberalization of the divorce
law during the 1970s in many parts of the common law world, it is
now being suggested in certain jurisdictions, such as England, that
the law of nullity be repealed and the grounds that make a marriage
voidable be merged with the law of divorce. As noted by Rebecca
Probert,

“the law of nullity has lost much of its practical importance

because many of the legal consequences of marriage have
now been attached even to a void marriage, while virtually
all marriages can sooner or later be dissolved by divorce if
either party wishes it.”

But in the case of Tanzania, this aspect of the law has not moved at
the same pace as English law. Thus apart from the retrospective
effect of the nullity decree, the court which grants the decree is not
authorised to order division of matrimonial assets and other
remedies available to divorced or separated parties.39

It must be stressed notwithstanding the retrospective effect of the

nullity decree, the law has created four exceptions under s 98(1)(a)
to (d). These are that the decree of annulment shall not render any
child of the marriage illegitimate; shall not render lawful anything
which was done unlawfully during the marriage or render unlawful
anything which was done lawfully during the marriage. The nullity
decree shall not affect the competency or compellability of the other
spouse as a witness in respect of anything done or privilege in

39
See Amida Shabani v Alfani Mtenga [1981] TLR 232 per Kisanga J where he doubted whether the remedies
available under s 114 LMA also apply to voidable marriages. See also B Rwezaura, “The Proposed abolition of
de facto unions in Tanzania: A case of sailing against the social current” Journal of African Law, (1998) 42:187-
214, at 206
respect of communications made during the marriage. And, the
decree of nullity shall not relieve the husband of any debt properly
incurred on his behalf by his wife during the marriage.

4.6 Summary and Conclusion

A number of points need to be stressed. First, it is through the

doctrine of nullity that the law regulates the formation of marriage
and specifies, to the extent possible, who can and who cannot marry.
Indirectly, the law tells us the nature of marriage and the obligations
it creates.

Second, the law of nullity has a long history dating back to the canon
law era. The most important consideration is that the ground that
makes a marriage void or voidable, must exist at the time of
marriage and not after. That is why the decree setting aside a
voidable marriage operates retrospectively. But in order to remove
resulting injustice it was subsequently necessary to limit, by statute,
the retrospective effect of the decree.

Third, in its country of origin, (England and Wales), the law of nullity
has moved forward to such an extent that the legal consequences of
a decree of nullity are now similar to those of divorce in that courts
have discretion to order division of family assets and custody of
children. This has prompted some legal analysts to suggest that the
law of nullity be merged with the law of divorce.

Fourth, there is a close connection between the law of nullity and the
law relating to the presumption of marriage under section 160 of the
Law of Marriage Act. The connection arises from the fact that there
are certain “marriages” where parties lack capacity to marry or have
capacity to marry but may have gone through an irregular or
incomplete marriage ceremony. Some of the disputes brought to
court under section 160 could well be decided under the law of
nullity.40

Fifth we must keep in mind the possibility that parties may go

through a ceremony believing it to be a marriage but in fact such
ceremony may lead to a non-marriage. In other words, the ceremony
may be so far removed from the provisions of the law that it amounts
to a non-marriage. Such a non-marriage cannot be set aside by way
of a nullity decree. Under our law, it may be declared a non-marriage
by way of a declaratory decree under s 94 of the Law of Marriage
Act.41

It is to be hoped that the legislature will be moved soon enough to

amend this aspect of the law of nullity to bring it up to date and to
remove injustice to parties.

Bibliography

5.0 LEGAL CONSEQUENCES OF MARRIAGE [LECTURE

FIVE]

5.1 Introduction

Having examined the law of nullity and its effects let us now consider
briefly the legal consequences attaching to a valid marriage. This
section looks at the rights and obligations of marriage between the
parties and to a lesser extent its effects on third parties. Some of
these rights and obligations are well captured by Part IV and V of the
Law of Marriage Act.
40
See B Rwezaura, The Proposed Abolition of De Facto Unions in Tanzania: A Case of sailing against the social
current, Journal of African Law, 42: 187-214 at193ff.

41
But also note that all void ceremonies, including those that have a semblance of marriage are grouped
together under s 94 of the Law of Marriage Act.
BOX

At the end of this lecture students will:

1. Acquire an understanding of the legal consequence of marriage

including:

a. The notion of consortium as a bundle of spousal rights

which include: cohabitation, marital intercourse, mutual
economic and emotional support, and the right of a
surviving spouse to a share of a deceased spouse’s estate.

b. The mutual duty of spouses to render consortium to one

another;

c. The right to reside in the matrimonial home;

d. The remedies available to the other spouse when his or her

right to consortium is interfered with by a third-party;

e. How the criminal law and the law of evidence treat

married couples in specific cases.

f. The limits of marriage- including situations where the law

treats spouses as if they were unmarried.

END OF BOX

5.2 Right to Consortium

The term consortium means “living together as husband and wife

with all the incidents that flow from that relationship”. 42 According
to Lord Reid, consortium is difficult to define with any precision
given that it depends on the circumstances of the parties such as
age, health and economic status. It can be likened to a bundle of
42
See P M Bromley and N Lowe, Bromley’s Family Law, Butterworths (ELBS) 8th ed 1992 at p 107
rights some of which are incapable of precise definition. 43 Despite
the lack precision there are certain rights and obligations that are
widely recognised as flowing from the state of being married. These
include the mutual right to cohabit, to maintenance, to reside in the
matrimonial home, to inherit upon the other spouse’s death intestate,
to use the surname of the other spouse and to claim damages against
a third party for interfering with his or her consortium.

5.2.1. Cohabitation

There is a strong presumption that upon marriage the spouses will

begin living together as husband and wife. In the African cultural
context, a customary marriage ceremony includes a moment when
the bride is symbolically handed over to the prospective husband or
his family. In the eye of the law, the spouse’s duty to cohabit is
expressed indirectly by certain legal provisions. These include the
law relating, for example, to the spouse’s right to reside in the
matrimonial home (s 59LMA), the right to petition for divorce on the
ground of desertion or prolonged separation or living apart (s.107(2)
(e),(f)&(g))44 and the right to claim damages on the ground of
adultery or enticement.45 Perhaps more direct is section 111 LMA
which states that a decree of judicial separation “shall relieve the
parties of the duty to cohabit and to render each other help and
companionship and…of the duty to maintain each other..” We now
turn to the duty to maintain a spouse.

5.2.2 Maintenance

Closely connected with the mutual duty to cohabit is the spouse’s

43
See Best v Samuel Fox & Co Ltd [1952] AC 716, at 736 cited in P M Bromley and N Lowe (op cit) at 110.

44
Section 67 of the Law of Marriage Act states that spouses may make a written agreement to live apart and
“any such agreement, including any provisions as to maintenance, matrimonial property and the custody of
the infant children, if any, of the marriage shall be valid and enforceable.” See also s 107(2)(e)

45
See s 72 and 73 LMA
duty to maintain the other. Section 63 LMA states 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.” And
where the husband has neglected his duty to maintain the wife or
wives, the law entitles the wife to pledge the husband’s credit; to
borrow money in his name or to use any of his money left with her in
order to meet her basic needs (s 64 LMA).

Although under the Law of Marriage Act the primary duty to

maintain a spouse is placed on the husband, the wife is also obliged
to maintain her husband if she has the means to do so and if the
husband is incapacitated, whether wholly or partially, from earning a
livelihood (s 63(b)). The foregoing provision suggests that if both
spouses have the means, it is the husband who has the primary
obligation to maintain the wife.

But although the law is lenient upon the wife, reflecting the
economic and cultural realities of Tanzania, in practice wives do
shoulder considerable burden of maintaining the family, sometimes
even surpassing their husbands. What needs to be stressed here is
that marriage creates a mutual duty upon the spouses to maintain
one another in accordance with each spouse’s ability. If both spouses
have the means, the duty to maintain one another must fall equally
on both.

5.2.3 Right to reside in the Matrimonial Home

The duty to cohabit also presupposes a physical space where the

spouses will reside.46 Section 59(1) LMA states in effect that where
46
The term ‘matrimonial home’ is defined by s 2(1) LMA to mean, “the building or part of a building in which the husband
and wife ordinarily reside together and includes--- (a) where a building and its cartilage are occupied for residential
purposes only, that cartilage and any outbuildings thereon; and (b) where a building is on or occupied in conjunction with
agricultural land, any land allocated by the husband or wife, as the case may be, to his or her spouse for her or his
the matrimonial home belongs to one of the spouses, that spouse,
“shall not, while the marriage subsists and without the consent of the
other spouse, alienate it by way of sale, gift, lease, mortgage, or
otherwise..”. Moreover, the other spouse shall be deemed to have an
interest in that property which is capable of being legally protected
“by caveat, caution, or otherwise under any law for the time being in
force relating to the registration of title to land or deeds.”

Where, in contravention of the above provisions, the spouse

nonetheless alienates the said matrimonial home, then the other
spouse’s occupation rights shall take priority over the rights of the
buyer for as long as the marriage subsists.47 It is also stated under s
159(3) LMA that should the owner- spouse desert the other, then the
deserted spouse shall not be liable to be evicted from the
matrimonial home by or at the instance of the owning spouse.
(Additional provisions from the Land Acts.. See Binamungu,
149-153, 106 fn 281 and the Rent Restriction Act Cap 339)

It is clear from the foregoing provisions that the right to reside in the
matrimonial home is a form of a charge or encumbrance on the
property and is intended to secure the occupation rights of the other
spouse. It is available to the non-owning spouse by virtue of the
marriage and not otherwise.

Section 59 LMA has been invoked typically by wives in cases where a

husband purports to alienate the matrimonial home without the
wife’s knowledge and consent. In Hadija Mnene,48 the wife was
granted a right to continue to reside in the matrimonial home under
s 59(2) LMA notwithstanding the fact that the sale of the matrimonial
home was held to be valid. Given that most wives were either
exclusive use.”

47
See s 59(1) and (2) LMA.

48
Hadija Mnene v Ally Maberi Mbaga and the National Bank of Commerce, (Mwanza) High Court, Civ App No 40 of 1995
(per Lugakingira J) unreported (cited in CS Byamungu, Thesis) at p115-116).
unwilling or unaware of their rights under s 59 LMA it was decided
to enhance the protection by further enactment. But position of the
wife was further strengthened in 2006 following the enactment in
2006 of the Land Act.49

5.2.4 Intestate Inheritance

Our law of inheritance lags behind the law of marriage in that it

makes no explicit provisions for the protection of a surviving spouse
on the other’s death intestate. This is in line with most of the existing
African customary laws. But in recent years some High Court judges
have handed down a number of decisions to the effect that such
customary laws are discriminatory and unconstitutional. The judges
have held that a widow has a right to a descent share of the estate
upon the death of her husband. Indeed, others have relied on s 114
of the Law of Marriage Act, arguing that since upon divorce or
separation a wife is entitled to a share of the matrimonial assets,
then a widow should be taken as a co-owner of the estate and her
share should be set aside before the estate is divided up. 50
(Rabiuzima etc Constitutionalization of family law).

5.2.5 Damages for Adultery and Enticement

Section 72 LMA provides that a husband or wife may bring a suit to

claim damages against any person with whom his or her spouse has
committed adultery. This provision has two origins. The first is the
English common law version which dates back in time when the
husband was the only person entitled to claim damages on the
ground that the defendant had violated the husband’s consortium

49
See GN No 43 of 2006. See also Samwel Olung’a Igogo and Two Others v Social Action Trust Fund and Ors [2005] TLR 343

50
See B. Rwezaura and U. Wanitzek ’ The Constitutionalisation of Family Law in Tanzania’ (2006) in A Bainham
Ed. International Survey of Family Law, 444, at 445
rights.51 The cause of action was known as criminal conversation,
otherwise known as crim con. The wife was not entitled to make such
claim since she did not possess such a (property) right in the person
of her husband. The husband was also entitled to take out an action
for restitution of conjugal rights (RCR) against his wife and this
entitled him to compel his wife to return to the matrimonial home.52
With the rise of gender equality this cause of action, along with its
associated damages for enticement, were either abolished or
extended to the wife. Section 72 LMA originated from that source.

The second source is African customary law which takes a similar

view as the old English common law that upon marriage the wife
falls under the control of the husband. He is then entitled to her
company and services. Thus the husband may compel his wife to
cohabit with him and in the old days he could compel her to engage
in marital intercourse without committing the offence of rape or
indecent assault. Since 1971, “no proceedings may be brought to
compel a wife to live with her husband…”53

The existence of the foregoing provision is clear evidence that the

subjection of the married woman to the command and control of the
husband is now a matter of history. Thus it would be argued that
instead of extending the right to claim damages for adultery to the
wife, s 72 LMA ought instead to have abolished that right altogether.
Such conduct whether by the wife or husband should, as it is now, be
redressed solely under the law of separation or divorce.

5.2.6 Use of Surname

51
See Bromley’s Family Law, PM Bromley and NV Lowe 7th ed ( 1987) pp 105-118

52
See P M Bromely and N Lowe (op cit) at pp 107-111

53
Section 140 Law of Marriage Act [Cap 29 R.E. 2002]
Although it is common practice, upon marriage, for wives to use their
husband’s surnames, there is in fact no law requiring them to do so.
Hence, wives may choose to change their names, to retain their
maiden names, or to add their husband’s name to their existing
maiden names using an hyphen. According to Peter Bromley, “an
adult may use any surname he chooses provided that his intention is
not to perpetrate a fraud”. Thus a former wife may continue to use
her former husband’s name and an unmarried woman is also free to
use the surname of a man she is living with provided such use is not
intended to defraud or mislead anyone. Since this procedure is not
governed by our marriage law, it is necessary for the wife to effect
such a change by taking oath before a Commissioner for Oaths to
that effect.54 Although some men my frown at the idea, it is also
permissible upon marriage for a man to change his surname to that
of his wife. This is not practised in many jurisdictions except in
Sweden where the law of names was revised in 1983 to permit men
to adopt the maiden names of their wives or the names of their
partner, as well as for women to adopt their husband's name.55

5.2.6 The Limits of Marriage

It has been noted above that Part IV and V of the Law of Marriage
Act (LMA) encapsulate a number of legal consequences of marriage.
I should add that there are . some provisions in Part IV and V (LMA)
which seek to limit the effect of marriage by making it clear that
marriage does not bring about certain legal effects. For example, s
58 LMA states that a marriage shall not operate to change the
ownership of any property to which either the husband or the wife
may be entitled. Nor shall marriage prevent either the husband or
the wife from acquiring, holding and disposing of any property.
54
According to P M Bromley and N Lowe, op cit. “the execution and enrolment of a deed poll merely provide
evidence of the executant’s intention to be known by a different name and have no other legal significance.”
at p 110 fn 9.

55
See Wikipedia Free Encyclopaedia.
Similarly spouses retain their legal capacity to contract, to sue and
their individual liability to be sued in contract and tort. And the
husband is no longer held liable for the torts committed by his wife.
But as we shall see, the wife may borrow money in the name of the
husband for the purchase of food and other necessaries of life.56

Another important provision is section 66 LMA which makes it clear

that “notwithstanding any custom to the contrary, no person has any
right to inflict corporal punishment on his or her spouse.” Although
this section is couched in gender neutral terms, its primary object is
to caution men that they are not permitted to beat their wives even if
doing so may appear to be permitted by their customs. These and
comparable provisions are a departure from the old English Common
law and customary law where marriage resulted in the subjection of
women to the control of their husbands. Indeed the so called
doctrine of unity of the husband and wife had the effect of taking
away the wife’s capacity to acquire and hold any property in her own
name nor to contract, sue and to be sued in contract and tort. The
husband on the other hand was held liable for the debts of his wife as
well as in respect of her torts. All this was abolished by the LMA and
this accounts for some of the provisions in Part IV and V LMA which
seek to make it clear that marriage does not have certain effects.

5.3 Criminal Law and Evidence

Section 130(1) of the Evidence Act 1967 (Cap xx R E 2000) states

that, a husband or wife is a competent but not a compellable witness
for the prosecution. As noted by Mapigano J “a spouse can therefore
elect to give evidence or decline to give evidence on behalf of the
prosecution”57 Moreover s 130(2) requires the court to make this
provision known to the particular spouse before he or she elects to
give evidence for the prosecution. The court must also make record
56
See Section xx LMA

57
Kotia Magomba v Republic 1974 LRT n 35
of this fact in the record of proceedings otherwise such evidence is
inadmissible. But a spouse is both competent and compellable
witness for the prosecution where “a person charged is charged in
respect of an act or omission affecting the person or property of the
wife or husband o such a person or the children of either of them.”
(s130 (2)(b) check Evidence Act).58 The primary object of the above
rules is to protect marital confidences while also allowing a spouse to
decide on his or her own whether or not to give evidence for the
prosecution against his or her spouse. In the event the offence
relates to the person or property of the other spouse of their
children, no such protection is given or indeed required.

To be noted also is the change introduced in 1971 by the Law of

Marriage Act which replaced s 274 of the Penal Code to make is
clear and to declare that “a husband may be guilty of stealing from
his wife or a wife from her husband. This is a necessary consequence
of Part IV (ss 56, 58 and 60-62) LMA relating to separate ownership
of property between spouses.

5.4 Summary and Conclusion

One of the main legal consequence of marriage, as noted above, is

the spouse’s mutual right to the other’s consortium. This is indeed
the foundation upon which other rights and obligations emanate.
Even the law of evidence which makes a spouse a competent but not
compellable witness against the other in criminal trials is intended to
protect private and intimate communications between a husband and
wife. Similarly, the law which until 1971 provided that a husband and
wife cannot legally conspire was based on the English common law
view that a husband and wife have one mind in law.
58
Republic v Kihandika Lwenyakali , 1973 LRT n 91 per Onyiuke J where the court also held that the expression “ the
person or property of the wife” includes a co-wife. According to Onyiuke J “where a husband commits an offence, e.g. an
assault, against a member of his family such as one of his wives or any of their children, I can see no reason in principle for
not making any of his wives who witnessed the incident a compellable witness.” p392
But we also need to recognize that the law on this subject exhibits
the relics of the English common law that subjected married women
to the control of their husbands. Moreover, we should also reflect on
the removal such subjection and think how this process might bear
the seeds, not only of total spousal equality, but also of the tendency
to eliminate the difference between married and unmarried couples
thus rendering the concept of marriage increasingly an unnecessary
legal concept.59

BIBLIOGRAPHY

Eric Clive, ‘Marriage; an Unnecessary Legal Concept?’ in J Eekelaar

and S Katz (eds) Marriage and Cohabitation in Contemporary
Societies (1980) Butterworths pp 71-82

Jonathan Herring (ed)

P M Bromley and N V Lowe, Bromley’s Family Law, 7th Ed (1987) pp

103-147

PART TWO

6.0 JUDICIAL SEPARATION [LECTURE SIX]

6.1 Introduction

The current law relating to separation is based on the law of England

and Wales. It has a long history dating back to the 19th century. Thus

59
See Eric Clive in Eekelaar (1982?)
before 1857 judicial separation (then known as divorce a mensa et
thoro) was available in the Ecclesiastical courts but divorce as we
know it today was not permitted and no court had jurisdiction to
grant it. In rare cases, a marriage could only be terminated by an
act of parliament. In 1857 the Matrimonial Causes Act was enacted
which, for the first time, permitted dissolution of marriage without
abolishing judicial separation as a matrimonial relief. The
Matrimonial Causes Ordinance (Cap 364) of what was then colonial
Tanganyika was based largely on the English Matrimonial Causes Act
of 1857. In 1971 the Law of Marriage Act (Cap 29 R E 2002)
repealed the Matrimonial Causes Act (Cap 364) and replaced it with
the current provisions discussed below.

BOX

At the end of this lecture students will:

h) Acquire an understanding of the history and nature of

judicial separation;

i) Understand the grounds on which a court may order

judicial separation;

j) Appreciate the differences between judicial separation

and divorce;

k) Acquire an understanding of the remedies available

upon legal separation;

l) Appreciate the legal consequences of judicial

separation;

m) Understand the difference between voluntary

separation and judicial separation.

n) Learn about the court’s role in ensuring that the terms

of separation agreements are fair to both parties and
 are in the best interest of the minor children of the
marriage.

END of BOX

6.2 Judicial Separation

Judicial separation is best viewed as an alternative to divorce where

one of the parties or both are opposed to divorce on religious or
other grounds. Section 99, LMA states that “any married person may
petition the court for a decree of separation…on the ground that his
or her marriage has broken down..” Evidence that the marriage has
broken down consists of nine matters.60 These are contained under
section 107 LMA. These matters will be discussed in the next lecture
relating to divorce given that they are also the same matters to be
proved in a petition for divorce.

Four points need to be stressed here. The first is that judicial

separation does not dissolve or terminate a marriage tie. According
to s 111 LMA, judicial separation merely relieves the parties of the
mutual duty to render each other consortium rights but does not
dissolve the marriage tie. Notwithstanding the foregoing, in
granting judicial separation the court may make certain orders
against the other party such as maintenance.

The second point is that the court has jurisdiction to make financial
orders including maintenance and division of assets under s 114
LMA only “when granting or subsequent to the grant of a decree of
separation or divorce.” but not otherwise. The law providing for
judicial separation may act as an incentive to a party who does not
60
As will be noted below the use of “facts” instead of offences in most jurisdictions is part the movement
away from a fault based divorce to a no-fault divorce.
wish to end the marriage but merely wishes to obtain any of these
ancillary orders.

The third point is that in a petition for judicial separation the court is
not expected to make the finding that the marriage has broken down
irreparably. In other words, it is enough for the petitioner merely to
show the existence of any one of the matters listed under s 107 LMA
and the court should grant the separation order without considering
and determining whether or not the marriage has broken down
irreparably as required under s 110(1)(a)LMA.

The fourth point is that judicial separation has a long history under
English law and dates back to the time in England when divorce was
very difficult to obtain and couples who could not live together or
could not have their marriage annulled, usually settled for a judicial
separation as a form of de facto divorce.

6.3 Voluntary Separation

Section 67 of the Law of Marriage Act states that spouses may enter
into a written

agreement to provide for their voluntary separation along with

ancillary matters such as maintenance, division of matrimonial
property, and the upbringing of the minor children of the marriage,
if any. The agreement must be in writing and dully signed by both
parties. Such an agreement is valid and enforceable provided that
the court shall have power alter such an agreement on the
application of either party “at any time and from time to time.” The
court also has power to set aside the agreement where it is satisfied
either that there has been a material change in the circumstances of
the parties or where such an agreement is not in the best interests of
the couple’s infant children.

The underlying principle here is that it is not the policy of the law to
compel parties to live together if they do not wish to do so. Indeed,
this shown by section 140 (LMA) which states that the court shall
have no power to compel a wife to reside with the her husband nor a
husband to reside with his wife. But in case one of the parties
believes he or she has been deserted by the other, he or she may
refer the matter to the Marriage Conciliatory Board. In effect this is
another way of saying, as will be noted in the next lecture, that
desertion of one spouse by the other constitutes a legal ground for
judicial separation or divorce.

The final point to note is that although the law permits parties to
separate by a private agreement, it retains its protective role. The
law will intervene at the invitation of one of the parties to redress
any injustice or unfairness in the agreement. The court will also
intervene where it is satisfied that the circumstances under which
the agreement was made have substantially changed. The court will
also intervene where it is satisfied that the terms of the agreement
are not in the best interest of the minor children of the marriage.61

6.4 Conclusion.

The law relating to separation could be viewed as a half-way house

between staying married and divorcing. While it enables the parties
to achieve nearly all the remedies available to a divorced couple, it
leaves the marriage legally alive thus keeping open the chances for
parties to reconcile. Where the court is invited to intervene, it may
grant judicial separation. But parties may also agree in writing and
their agreement has the same effect as a court ordered separation.
In either case the court may alter the terms of the agreement either
because the circumstances of the parties have materially changed or
it is not in the best interests of the minor children. Although for
troubled marriages divorce is now a more popular remedy there are
those who prefer separation out of strategic or religious
considerations. Hence, law students must continue to pay attention

61
See section 67 LMA.
to this aspect of family law.

7.0 TERMINATION OF MARRIAGE: DIVORCE [LECTURE

SEVEN]

7.1 Introduction

Before the reform of the law of divorce, which began during the early
1970s, much time was spent by textbook writers delving into the
nature and definition of various grounds for divorce. Such an
exposition would be followed by a discussion relating to ancillary
orders such as division of family assets and child custody. Today the
importance of divorce law has declined somewhat in many common
law jurisdictions. At the same time we have witnessed the growing
importance of the law relating to division of family assets and child
custody.

The main factor accounting for the decline in the jurisprudential

importance of the law of divorce is the liberalization of divorce law
along with the movement from the fault based to a non-fault based
divorce law. The liberalisation of divorce brought about what came to
be known as the divorce revolution expressed in the unprecedented
rise in the divorce rates in much of Western Europe and North
America. This development led some analysts to question whether
the new law was not responsible for the breaking up of families. But
contrary to such thinking, the fact was that social change and
changes in gender relations in many parts of the world had led to the
realization that the law could not compel married couples to live
together if they did not wish to do so. 62 It was also recognized that

62
Section 140 of the Law of Marriage Act [Cap 29 R.E. 2002] states that “No proceedings may be brought to compel a
wife to live with her husband or husband to live with his wife, but it shall be competent for a spouse who has been
deserted to refer the matter to a Board.”
the breakdown of marriage was not necessarily the fault of one of the
spouses. More likely, each spouse had contributed, in varying
degrees, to the breakdown of the marriage.

What the law could do was to recognise the fact that a marriage, that
had been voluntary from the beginning and greatly desired by both
parties, had now collapsed and one or both spouses did not want it
anymore. The new law sought to recognise this unfortunate fact and
to design a procedure that would minimize bitterness between the
couple end the marriage while encouraging the couple to co-operate
in the upbringing of their minor children (if any). The foregoing is
the legal context into which the Tanzania Law of Marriage 1971 was
born and which provides the essential background to the object of
our divorce law.

BOX

At the end of this lecture students will:

a. Acquire an understanding of the history of the current divorce

law;

b. Understand the concept of non-fault divorce and its influence on

the current law;

c. Grasp the distinction between fault- based divorce and the

principle of irretrievable breakdown of marriage;

d. Appreciate the object and philosophy underlying mediation as a

precondition to divorce;

e. Gain an understanding of the evidence required to prove the

breakdown of marriage;

f. Grasp the rules relating to the special procedure governing

Islamic divorce and how these rules have been applied in
 practice;

g. Understand the legal consequences of divorce;

h. Be able to relate the law of divorce to legal pluralism and social

change.

END OF BOX

7.2 The Concept of No-Fault Divorce

Under the old law a decree of divorce was granted only to the
innocent party on proof of a specific matrimonial offence. The most
common offences included adultery, cruelty and desertion. They were
often subjected by lawyers to careful jurisprudential analysis in order
to determine first, the essentials of these offences and second to
establish, as if it was a criminal trial, whether the respondent was
guilty or not guilty as alleged. In order to secure a finding of guilty,
the petitioner was required to adduce detailed evidence to show that
the respondent was guilty of any one of the offences.63 Needless to
mention these trials often generated acrimony and bitterness
between the parties. It exacerbated the already tense or openly
hostile relations between the divorcing couple.64 This situation made
it difficult for divorcing couples to make genuine efforts to co-operate
in the upbringing of the minor children of the marriage. The result
was the child custody was greatly contested, with one parent seeking
to have custody of the children and to try to exclude the other from
participating in the upbringing of their children.
63
See the observations by Onyiuke J in Zinat Khan v Abdulla Khan 1973 LRT n 57 at 243

64
Section 107 Law of Marriage Act states that in deciding whether or not a marriage has broken down, the court shall
have regard to all relevant evidence regarding the conduct and circumstances of the parties; in particular, the court may
accept proof of one or more of the matters enumerated under s 107(2) as evidence that the marriage has broken down.
As will be noted in this Lecture, these “matters” include, among others, adultery, cruelty, desertion and willful neglect. In
practice certain judges continue to look at these “matters” as if they were the old “matrimonial offences” and there are
indications in some of the post-1971 cases that courts have not clearly departed from the pre-1971 divorce jurisprudence.
The concept of no-fault divorce, as noted above, emerged from the
realization that the breakdown of marriage was not exclusively the
sole responsibility of one party to the marriage. Rather, each party
was responsible to a greater or lesser extent for the breakdown of
the marriage. In England a report of the Archbishop of Canterbury,
published in 1966 concluded that the fault-based divorce did more
harm than good to the society and recommended the introduction of
the no-fault divorce.65 As will be noted below, the introduction of a
no-fault divorce amounted to a paradigm shift along with the
introduction of the doctrine of breakdown of marriage.66

It was also argued then that the mere proof that a specific
matrimonial offence had been committed should not entitle the
petitioner to an automatic decree of divorce. This was because proof
that an ‘offence’ had been committed did not necessarily mean that
the marriage had broken down irretrievably. That proof of a
matrimonial offence should be taken as evidence rather than proof
that the marriage had broken down beyond redemption. In the end
the decision to grant a decree of divorce rests with the divorce court
which has to make the inference from the proof of any of the eight
facts whether or not the marriage has indeed broken down
irreparably. As noted by Rebecca Probert, once any one of the facts
has been proved by the petitioner, there will be such a strong
presumption that the marriage has broken down irreparably broken

65
Putting Asunder

66
There are, however, certain provisions in the LMA which appear to contradict the paradigm shift. For example, s 107(1)
(a) LMA states that the court shall not grant a decree of divorce where the petition is founded exclusively on the
petitioner’s own wrong doing unless the court for any special reason otherwise directs. In Athanas Makungwa v Darini
Hassani 1983 TLR 132 (HC) the court found as a fact that the marriage had broken down irreparably due to the conduct of
the petitioner. It did not, however, order a divorce because this would have contravened s 107(1)(a) and no special reason
was found by the court . Had the respondent cross- petitioned for divorce he would have been granted a divorce decree
instead. It is neither unusual nor unexpected to find the old ideas on divorce carried over into the new divorce law. This is
usually a legislative strategy designed to accommodate divergent views within the same society. See B Rwezaura, ‘Recent
Developments in the Divorce Law of Hong Kong: Towards Minimal Adjudication and Consensual Divorce. Hong Kong Law
Journal Vol 26 Part 1 (1996) pp 81-103
down “that it is almost impossible for the respondent to rebut the
presumption.”67 and (cases where the respondent vehemently claims
he/she still love the petitioner see Le Merchant v Le Merchant [1977]
1WLR 559.

7.3 Mediation as Precondition to Divorce

Part of the post 1970s divorce law was the idea that many marriages
would be saved if couples were given an opportunity to discuss their
disputes before an informal body. Such a body would have the
mandate to mediate and try to reconcile the couple and only when
the informal mediation fails then the couple would be permitted to
approach formal institutions such as a court of law. As noted by
Onyiuke J, the requirement for prior mediation before making a
formal petition for divorce is to allow a cooling off period and for
some attempt at reconciliation.68 Moreover in the African social
context mediation is not a novel idea because for generations
married couples have used family members, neighbours and elders
to settle their marital disputes.

In 1971 section 102 LMA institutionalised the mediation practice and

made it a pre-condition for divorce.69 It provided for the
establishment, in every ward, a body to be known as a Marriage
Conciliation Board. It also empowered the Minister responsible for
legal affairs to designate existing mediation bodies in the community
as Boards 70 if the Minister is satisfied that “a community in Tanzania
67
Rebecca Probert, Cretney’s Family Law, 5th Ed Sweet & Maxwell (2003) p 53

68
In Zinat Khan v Abdulla Khan 1973 n 57 at 243

69
s 101 LMA states, “No person shall petition for divorce unless he or she has first referred the matrimonial
dispute or matter to a Board and the Board has certified that it has failed to reconcile the parties.” The section
is followed by six grounds which render inapplicable the requirement for conciliation. See also s106(2) LMA.

70
s 102(2) LMA provides that where the Minister is satisfied that any community in Tanzania has established
for itself a committee or body of persons to perform functions of a Marriage Conciliation Board…the Minister
may so designate such a committee or body of persons to be a Board.
has established for itself a committee or body of persons to perform
the functions of a Marriage Conciliatory Board” and the Minister
considers it desirable that such a body be designated as a Board for
that community.71

The Board shall consist of a Chairman and not less than two and not
more than five other members (s 103 LMA). The Board has power to
regulate its own procedure and such procedure is expected to be
informal. The Board may require the attendance of witnesses and if
such witnesses fail to turn up, the Board may seek the assistance of
the court to issue formal court summons. In addition to the evidence
that parties may bring before the Board, the Board itself may make
its own enquiries as it considers appropriate in order to reach its
decision. Advocates are not permitted to appear before the Board
but family members may appear to represent parties. Where the
Board is unable to reconcile the parties it shall issue a certificate
setting out its findings and any recommendations relevant to the
dispute as it may think appropriate. It may also issue a certificate
where the en

It is also provided under s 101(f) that the requirement for prior

appearance before the Board shall not apply “where the court is
satisfied that there are extraordinary circumstances which make
reference to the Board impracticable”. The term ‘impracticable’
according to Onyiuke J include a consideration of what can be
achieved by a reference to a Board having regard to the
extraordinary circumstances. Moreover, extraordinary circumstances
may cover a variety of situations including the gravity of the
matrimonial offence. For example, “persistent incestuous association
of one of the parties to the marriage, as opposed to ordinary
adulterous association may well make a reference to a Board a

71
There are a number of such community- based and faith- based bodies that perform the functions of the
Board including officials of the Department of Social Welfare.
useless exercise and therefore impracticable.”72 But, according to
Onyiuke J, each case must depend on its particular facts.73

In Zinat Khan v Adullla Khan74, the petitioner did not refer the matter

to the Board on the ground that the respondent husband was violent

to her and had threatened her and the children with death if she took

“any step which is calculated to lead to the dissolution of the

marriage.” Onyiuke J held, that neither the husband’s violent temper

and assaults to the petitioner nor the threat to kill her and children

were sufficient to amount to extraordinary circumstances within the

meaning of s 101(f) LMA.

7.4 The Two Year Rule

Section 100 (1) LMA states that no person shall, “without the prior
leave of the court, petition for divorce within two years from the date
72
In Zinat Khan v Abdulla Khan 1973 LRT 51 at 245. Followed in Mariam Tumbo v Harold Tumbo 1983 TLR 293 where the
Board was afraid to summon the respondent husband (a State Intelligence Officer) and decided to give a letter to the wife
to petition for divorce. Lugakingira J did not base his decision on this point but took the view that “the various steps taken
by the Petitioner, the difficulties and frustrations she met, the performance and admitted competence of the Board (in
fact Boards) bring the case within the ambit of para (f) of the proviso to s 101 of the Law of Marriage Act 1971.”

73
In Halima Athumani v Maulidi Hamisi 1991 TLR 179(HC) Mwalusanya J, relying on Zinat Khan held that extraordinary
circumstances would include cases where “the circumstances of the case are such that no expectation can be entertained
that the Board will be able to achieve any useful results and that any reference to it will be so much a waste of time and
effort.” In Halima the Board had issued a letter to the wife without summoning the husband. Mwalusanya J held that
having read through the letter of the Board “one cannot fail to see that it was found useless to call the husband for
reconciliation as it would be a waste of time and effort. Thus the Primary Court was entitled to proceed to hear the case
even if it had not been referred to the Board.

74
Cited above
of the marriage which it is sought to dissolve.” It is stated further
under s 100(2) that the leave of court shall not be granted except
“where it is shown that exceptional hardship is being suffered by the
person applying for such leave.”

Provisions restricting divorce within a short period after marriage is

found in many family legislation in many jurisdictions especially in
the common law world. The object is to discourage newly married
couples from to rushing out of a marriage when they face
frustrations or disillusionment about their married life. The policy of
the law is that newly married couples ought to be patient with one
another and try to make a success of their marriage instead of
rushing to a divorce court whenever they face problems of self-
adjustment. Although this is a commendable policy it is not sufficient
deterrence agains a determined would be petitioner. For example,
the provision does not forbid newly married couples from deserting
one another or obtaining a decree of judicial separation while
patiently waiting for the two year period to elapse. (any cases
where the two-year rule has been applied or waived?)

7.4 Irretrievable Breakdown of Marriage

The acceptance of the argument that proof of a matrimonial offence

did not necessarily mean the petitioner’s marriage had broken down
beyond recall led to the introduction of the doctrine of irretrievable
breakdown of marriage. This idea is now contained in section 107(1)
LMA which states that “in deciding whether or not a marriage has
broken down, the court shall have regard to all relevant evidence
regarding the conduct and circumstances of the parties…” And 107
(2) LMA which adds that “the court may accept any one or more of
the following matters as evidence that the marriage has broken down
but proof of any such matter shall not entitle a party as of right to a
decree.”75 In Edna Gombanila v Andrew Gombanila 1974 LRT n 65,
Mwakasendo J held that the question whether or not a marriage has
broken down irreparably is one of fact to be inferred from all the
evidence brought before the court. But as Mwakasendo J also noted,
in Edna (above) the mere proof of one or more of the matters
described in s 107 LMA does not by itself entitle the petitioner to a
decree of divorce (s107(2)LMA).

As will be noted below further indicators of the departure from the

fault-based divorce law appear in the use of neutral language to
remove any implications of fault or blame. This is despite the fact
that judges continue to use the terms “matrimonial offences” out of
sheer habit and presumably because the term “matters” does not
seem to them to deliver the full gravity of what justifies the court in
granting a decree of divorce.

7.5 Grounds for Divorce

The movement away from a fault-based to a no-fault divorce required

a change in the language of the divorce law to reflect the paradigm
shift. The change involved a move from the term ‘offence’ to a less
accusatorial term called ‘matters’. Thus 107(2) LMA refers to the
various former matrimonial offences such as adultery and cruelty as
‘matters’ to be proved by the petitioner. Indeed, it is no longer
accurate to speak of more than one ground for divorce. The correct
view is that there is a two-stage process which begins with proof by
the petitioner of one or more ‘matters’ to the satisfaction of the
court. This stage ends with the finding by the court that a marriage
has broken down. Once the ‘matter’ or matters, as the case may be,
are established by evidence as facts, there follows the second stage
which is provided under s 108 (d) LMA that is, “where the court is
satisfied that the marriage has broken down, to consider whether the
75
See Charles Aoko v Dorina Gibonga 1988 TLR 44(HC) where it was held that two incidents of wife-beating viewed in a
wider context of the five year marriage were insufficient to lead the court to the finding that the parties’ marriage had
broken down irreparably. See also Edna Gombanila v Andrew Gombanila 1974 LRT n 65 per Mwakasendo J
breakdown of the marriage is irreparable”. It is only when the court
concludes that the marriage has broken down irretrievably that it
shall grant a decree of divorce. Indeed, the court is required by law
to grant a divorce once it has made such a finding.76

In the light of the above discussion, it is submitted that there is only

one ground for divorce under the LMA. That is, the court’s finding,
based on matter(s) proved by the petitioner, that the marriage has
broken down irreparably.

This approach conflicts with the finding of Biron J in Warioba Butiku

v Perucy Muganda Butiku [1987]TLR 1 (HC) that “where the parties
have agreed on sufficient issues of fact and law raised in their
pleadings, the court may pronounce judgement and order
accordingly” per Biron J. The problem with Butiku, in my view, is
that it conflicts with s 108(a) LMA which requires the court “to
inquire, so far as it reasonably can, into the acts alleged and to
consider whether those facts, or such of them as are proved, show
that the marriage has broken down.” There is a two stage process
under s 108 (a); first, the parties must prove to the satisfaction of the
court that the marriage has broken down. Next the court must
evaluate the evidence and conclude that basing on the facts proved,
it makes a finding that the marriage has broken down irreparably.

Furthermore, the proviso to Rule 28 of the MCA (dealing with the

consequences of non-appearance of the parties) appears to support
my argument in so far as it states that “in no case shall the court
pass a decree in favour of the petitioner for the reliefs suggested by
him by reason only of the non-appearance of the respondent or co-
respondent, and in every such case the court shall proceed to hear
the petition ex-parte and determine the issue involved on the basis of
the evidence adduced by the petitioner (emphasis supplied).

Commenting on the power of the court to grant a decree of divorce

76
See Edna Gombanila v Andrew Gombanila 1974 LRT n 65
Mwakasendo J stressed that according to section 109 LMA “no court
has any right to dissolve any marriage without first being satisfied
that the marriage has, on the evidence given, broken down
irreparably.”77 In Butiku, the court did not follow the two stage
process because it relied on the fact that the parties were not at
issue and therefore there was no need to lead any evidence to
establish that the marriage had in fact broken down.

Therefore, and despite its acceptance by some High Court judges, if

Butiku were to be accepted as good law, this would amount to the
law permitting divorce by consent.78 Divorce by consent is not
provided for under the Law of Marriage Act 1971.

7.6 Evidence of Marriage Breakdown (Matters)

There are nine ‘matters’ listed under s 107 LMA. The court may
accept any one of these, if proved, as evidence that the petitioner’s
marriage has broken down. As noted above, before 1971 most of
these matters were known as grounds for divorce. It was important
for the petitioner to prove these grounds meticulously before a
decree of divorce could be granted. However, with the rise of the
single ground of divorce and the related concept of the breakdown of
marriage, the importance of these “matters” has gone down
considerably. The current significance of the old grounds of divorce
(now referred to as matters), is that in a petition for separation or
divorce, the petitioner has to prove one or more of these matters as
evidence that the marriage has broken down leaving it to the court
(in the case of divorce) to infer from such evidence whether or not
77
Edna Gombanila v Andrew Gombanila 1974 LRT n 65, at p277

78
Divorce by consent is not permitted by the LMA. Indeed, s 107(2) states that mere proof of any of the matters
stipulated under s 107 “shall not entitle a party as of right to a decree-“ This provision once again stresses the two stage
approach discussed above. Moreover, if the court is to accept the word of the parties that the marriage has broken down
irreparably without making its own enquiries what safeguards are there against collusion by both parties to secure a
decree of divorce at their whim? It has to be recognised that society has an interest in the preservation of marriage
beyond the narrow interests or emotional decisions of the two parties. This is more so where there are minor children of
the marriage.
the marriage has broken down irreparably.79 These ‘matters’ are
considered below.

a) Adultery

Proof of adultery committed by the respondent constitutes evidence

that the marriage has broken down. This is particularly “when more
than one act of adultery has been committed or where an adulterous
association is continued despite protest.” An act of adultery is
committed where a married man or married woman engages in an
act of voluntary sexual intercourse with a person of the opposite sex
(whether or not that person is married). Evidence of adultery may be
direct or circumstantial. Circumstantial evidence may include
communications between the respondent and the alleged lover
where reference is made to the act of adultery having been
committed. Birth of an extra-marital child by the wife constitutes
sufficient evidence of adultery.80 What is important here is for the
petitioner to show that the respondent’s adultery has resulted in the
breakdown of the marriage. There is an implied assumption in s
107(2)(a) LMA that the mere act of adultery does not by itself
constitute evidence that the marriage has broken down. This may be
the case where a single act of adultery is committed under
circumstances where it is unlikely to be repeated and where the
respondent has expressed remorse and apologised. In Mariam
Tumbo v Harold Tumbo 1983 TLR 293 the respondent husband

79
Edna Gombanila v Andrew Gombanila 1974 LRT n 65

80
In Pulcheria Pundugu v Samwel Huma Pundugu (1985) TLR 79 (HC) the court noted that the respondent willingly had
sexual intercourse with another woman while the marriage between him and the petitioner was subsisting. “This was
adultery by the respondent and therefore a matrimonial offence under s 107(2) LMA. As a result of the respondent’s
adultery with the said Penina, two children have been born.” The use of the term “matrimonial offence” is a slip from the
old law. Adultery, cruelty, desertion, wilful neglect, etc; are no longer matrimonial offences as such but “matters” under
s 107(2) LMA. The change in the language is consistent with the law’s move away from the matrimonial offence doctrine
to the principle of irretrievable breakdown of marriage.
contracted a monogamous marriage with the petitioner. He later
took another “wife” under customary law. It was held that the
respondent had committed adultery within the meaning of s 107(2)
(a) LMA. Such a finding would surprise many men who are happily
married to what Lugakingira J refer to a concubines81

b) Sexual Perversion

Section 107(2)(b) states that sexual perversion committed by one of

the parties to the marriage constitutes evidence that the marriage
has broken down. The word sexual perversion according to the
Oxford Concise Dictionary means “preference for an abnormal form
of sexual activity” 82 In Halima Athumani v Maulidi Hamisi 1991 TLR
179 (HC) the wife alleged that her husband insisted to have sex
against the order of nature which she vehemently resisted. This is
clear evidence of an abnormal form of sexual activity which is why
the wife strongly objected to it. Other abnormal forms of sexual
activity would qualify under s 107(2)(b) LMA and thus lead to the
breakdown of marriage if they are unacceptable to the other spouse.

c) Cruelty

Section 107(2)(c) LMA provides that the respondent’s cruelty,

whether mental or physical, inflicted upon the petitioner or on the
minor children of the family constitutes evidence that the marriage
has broken down. The term cruelty has been retained from the old
law of divorce. In England and Wales which, as noted above, was
among the first jurisdictions to introduce the concept of breakdown
of marriage, the term cruelty was scrapped and replaced by the fact
of “behaviour”. According to section 1(2)(b) of the Matrimonial

81
“In the African society, polygamy is neither a secret nor an outrage. Neither statute nor foreign propaganda have
succeeded in engendering a change of attitude. There are therefore countless “wives” who are in effect concubines.” Per
Lugakingira J in Mariam Tumbo v Harold Tumbo 1983 TLR 293

82
The Concise Oxford Dictionary of Current English, 9th Ed Edited by Della Thompson, Clarendon Press, Oxford (1995),
1021
Causes Act (1973) the court will accept evidence that a marriage has
broken down where “the respondent has behaved in such a way that
the petitioner cannot reasonably be expected to live with him”. It
would appear that the fact of “behaviour” as evidence of marriage
breakdown is more consistent with the concept of breakdown of
marriage adopted by the Law of Marriage Act. It could therefore be
taken as comparable to the term ‘cruelty’ used in the Tanzania
LMA.83

In Julia Mazengo v Jackson Leganga 1986 TLR 244 (HC) the wife
petitioned for divorce at a local Primary Court on the ground that the
respondent husband used to subject her to beatings. There was
evidence that the husband had assaulted the petitioner on three
occasions. Once the petitioner was nine months pregnant when she
was assaulted. Basing on this evidence the trial court found that the
marriage had broken down irreparably and granted a decree of
divorce. On appeal by the husband, the District reversed the lower
court’s finding by holding that there was insufficient evidence to
show that the parties’ marriage had broken down irreparably. On
further appeal by the wife to the High Court, Samatta J upheld the
decision of the trial court noting that there was sufficient evidence to
show that the marriage had broken down and that the breakdown
was irreparable. According to Samatta J,

“the ill-treatment to which the respondent has been subjecting

the appellant cannot, in my considered opinion, be described as
the reasonable wear and tear of married life. 84 The law does not
expect a wife to put up with the kind of ill-treatment the
83
With such an approach it would be unnecessary to analyze the fact of cruelty in such detail as if we are dealing with the
old law of divorce based on the matrimonial offence doctrine. See Mariam Tumbo v Harold Tumbo 1983 TLR 293 (HC) for
a useful analysis on the differences between the pre-1969 English divorce law and the post-1971 Tanzania divorce law.

84
This District Court had relied on McEwan v McEwan (1946) 108 Sol Jol 198 where Denning LJ had stated that married
couples had to put up with each other’s temperament and defect of character as ordinary incidents of married life. But
even as early as 1946 Denning LJ had gone on to state that there may come a time when such defects of character or
temperament “may be such as to amount to cruelty, but it all depends on the facts of the case.”
 respondent has been subjecting the appellant to.”

Cruelty may be divided into two types, namely; physical and mental
cruelty. Physical cruelty involves actual violence including physical
assaults.85 Mental cruelty does not necessarily include physical
assaults though in practice the two types tend to occur together. 86 A
good example of mental cruelty is Elizabeth Kamulindwa87 where the
wife suffered from anxiety and depression due to her husband’s
alcoholism.

The next question is what kind of conduct would meet the test for
cruelty? The test under English law is objective in the sense that the
question to be answered by the court after considering the evidence
is whether, given the evidence proved in court, it would be
reasonable to expect the petitioner to live with the respondent. 88 But
as noted by Rebecca Probert, “the court must consider the particular
parties to the suit before it, not ‘ordinary reasonable spouses’ 89 In
O’Neill v O’Neill [1975] 1WLR 1118 the English Court of Appeal
noted that the test is contained in the question: “Would any right-
thinking person come to the conclusion that this husband has
behaved in such a way that his wife cannot reasonably be expected
to live with him, taking into account the whole of the circumstances
85
Mariam Tumbo v Harold Tumbo 183 TLR 293

86
In Saidi Mohamed v Zena Ally 1985 TLR 13 (HC) the husband beat up his wife during which he also stripped her naked
before other people including her father –in- law. In his judgement granting her petition for divorce, Lubuva J noted that
the “appellant’s conduct of not only beating but also of undressing her in front of other people and particularly her father-
in-law was no doubt a most embarrassing and distressing act of cruelty which inflicted considerable physical and mental
torture on the Respondent.”

87
Elizabeth Kamulindwa v Austin Kamulindwa 1974 LRT n 11

88
In Gollins v Gollins [1963] 2All E R 966 Lord Pearce stated that it was impossible to provide a comprehensive definition of
cruelty, “but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to
health or an apprehension of it, it is I think, cruelty if a reasonable person, after taking due account of the temperament
and all other particular circumstances, could consider that the conduct complained of is such that this spouse should not
be called upon to tolerate” p 992 (emphasis by BAR).

89
at p 57
and the characters and personalities of the parties?” In Julia
Mazengo (cited above) the District Court appears to have placed the
threshold of tolerance too high by expecting a wife to put with
regular beatings from her husband.90

It would be helpful to note that the test of cruelty in O’Neill v O’Neill

(cited above) is helpful and capable of standing the test of time. In
other words, the court should evaluate the evidence by considering
the subjective spouse rather than a reasonable spouse.

d) Wilful Neglect

The word neglect according to the Oxford Concise Dictionary has the
following meaning: fail to care for; not pay attention; disregard.
When foregoing expressions are qualified by the word “wilful” then
the term wilful neglect means intentional failure to care for or wilful
disregard of the needs of the other spouse. The word wilful must be
interpreted to include all actions and omissions whose natural
consequence would amount to the neglect of the other spouse. 91 In
Ashok Kumar Chhaganlal Chohan v Minax Ashok Kumar
Chhaganlal92the respondent wife “stopped cooking or serving food to
the petitioner, and refused to have sexual relations with ... the
petitioner as she was boasting of her boy-friend from Tanga, named
‘Sachin’.”93 We have noted in Lecture Five that marriage creates a
mutual right to consortium. In this sense wilful neglect of the needs
of the other spouse belongs to the same class as mental cruelty
depending on what is being neglected. Thus wilful neglect could
90
See also Elizabeth Kamulindwa v Austin Kamulindwa 1974 LRT n11 where Kimicha J held that the court should not seek
to maintain a marriage where the petitioner would very likely commit suicide or die of recurrent gastric haemorrhage due
to the conduct of the respondent.

91
It is not necessary to prove actual intention. It is enough to show that a person of sound mind is taken to intend the
natural consequences of his action. See Gollins v Gollins [1964] AC 693 HL.

92
DSM High Court Matrimonial Civil Cause No 21 of 1980 per Ruhumbika J

93
At page 1 of the typed judgement.
take the form of economic neglect where the husband neglects to
provide for the wife’s basic needs. Wilful neglect could also take the
form of emotional neglect where one spouse loses interest in the
company of the other as noted in Ashok Kumar, cited above.

e) Wilful Desertion

According to section 107(2)(c), the court may accept evidence that

desertion has been committed by the respondent “were the court is
satisfied that it is wilful”. In Ashok Kumar,94 “the respondent went to
Tanga with her uncle on the 4 th April 1979 and had not returned up
to the time of the hearing of the petition in 1982.” The term
desertion consists of two elements. The first is the act of physical
separation from the petitioner; and the second is the intention of the
respondent to terminate consortium rights. But to satisfy the law’s
requirement, desertion must continue for a period of at least three
years. A shorter period or desertion is not sufficient evidence of
marriage breakdown.95 It is important to mention two additional
components of desertion. The first is simple desertion and the second
is constructive desertion. Simple desertion takes place when the
respondent vacates the matrimonial home with the intention of
terminating consortium rights. Constructive desertion takes place
when the respondent, by his or her conduct makes it intolerable for
the petitioner to continue to reside in the matrimonial home. In the
later case, the deserter is the person who stays in the matrimonial
home and the deserted spouse is the one who leaves.

f) Separation

The term being in separation applies to a married couple when they

are living apart either through voluntary separation or by court order
94
DSM High Court Matrimonial Civil Cause No 21 of 1980 per Ruhumbika J (see fn 83 above).

95
The requirement that desertion must be at least three years implies that the respondent’s desertion for
periods shorter than three years cannot be added up to constitute the required three years of desertion. In
other words, the period of three years must be continuous and uninterrupted.
following a decree of judicial separation. 96 In either case parties are
said to be separated when they no longer render to each other
consortium rights. Separation must be distinguished from desertion.
In the case of desertion, one party, usually the petitioner, is not
happy about the fact of desertion and prefers cohabitation to
continue. In the case of voluntary separation both parties wish to live
apart. And, in the case of judicial separation, there is a court order
entitling the petitioner to live apart.

g) Imprisonment of the Respondent

The law recognises that the primary object of marriage is greatly

undermined by reason of the respondent’s imprisoned for a term not
less than five years. In considering whether or not the fact of
imprisonment leads to the breakdown of marriage, the court is have
regard to the length of imprisonment as well as the nature of the
offence for which it is imposed. The implication of the above
provisions is that it is not merely the length of imprisonment that is
seen to undermine fundamentally the marriage contract. It is also
the particular offence for which the imprisonment is imposed. For
example, where the respondent is guilty of serious offences such as
murder or burglary with violence, it is to be expected that the other
spouse my not be prepared to continue the marriage relationship.

h) Incurable Mental Illness

In order for mental illness to constitute evidence that the couple’s

marriage has broken down, two doctors, one of whom is a
psychiatrist, have to certify that there is no hope of cure or recovery
of the respondent. Here again the state of the respondent’s health is
such that it undermines the primary object of marriage and makes it
difficult or impracticable to carry on a normal married life. The

96
In Bjarne Alling v Hasna Jivraj Alling (DSM Matrimonial Cause No 5 of 2000 per Shangwa J) “On 16.10.1997 both parties
agreed to live in separation and the court of the Resident Magistrate at Kisutu did record their agreement to live in
separation.” On page 2 of the typed judgement
requirement that the mental illness must be incurable would appear
to set the standard too high. This is so especially in view of the three
year and five year thresholds for separation, desertion, and the
respondent’s imprisonment. Perhaps the better view would be to
include the fact of mental illness for three or five years as
constituting evidence that the marriage has broken down
irrespective of the respondent’s chances of future recovery.

i) Change of Religion

If long imprisonment is viewed as undermining the primary object of

marriage so is change of religion by the respondent. Where the
couple belongs to a particular religion and its social life revolves
around deep held religious beliefs and observance, it is predictable
that change of religion by the respondent has the effect of not only
alienating the couple but also it is not reasonable to expect the other
party to tolerate this and continue with the marriage as if nothing
has happened. Indeed, according s 107(2)(i) LMA the court will
make a finding that a marriage has broken down irreparably where
both parties follow the same religion at the time of marriage and
where according to the laws of that faith a change of religion has the
effect either of dissolving the marriage or constitutes a ground for
divorce.

7.7 Cross-Petition by the Respondent

Before completing this part it should be noted that on a petition for

divorce the respondent is also permitted to cross-petition for divorce
on the same or other matters. In the event the petitioner fails to
prove that the marriage has irreparably broken down, and instead of
dismissing the plain as the law requires, the court my instead
consider the cross-petition and order accordingly. In Edna
Gombanila97 the petitioner failed to prove that his marriage had
broken down irreparably based on the conduct of the respondent
97
Cited above
wife. But the appellate court, basing on the respondent’s cross
petition, was able to grant a decree of divorce. (check LMA for
specific provisions)

7.8 Special Divorce Procedure for Islamic Marriages

Parties married under Islamic law have two options. They may
petition for divorce following the normal procedure under s 107(1)
and (2) LMA as discussed above. In the alternative, they may take
advantage of section 107(3) LMA which provides a special procedure
for divorce.98 The special procedure merely requires that the parties,
who are married in accordance with Islamic law shall initially refer
their dispute to a Marriage Conciliatory Board (MCB). The MCBs, as
noted above, are established by the Minister responsible for legal
affairs under sections 102 LMA.99 Apart from MCBs operating under
the umbrella of the Department of Social Welfare, there also MCBs
formed by Islamic leaders whose task is to try and reconcile
parties.100 The first stage is for the parties to refer the matter to the
MCB. At the MCB any of the two things may happen. The parties may
become reconciled thus bringing the dispute to an end or the MCB
may fail to reconcile the parties in which case it must issue a
certificate to that effect.

And where, following the issue of a certificate by the MCB, either

party does an ‘act’ or ‘thing’ which, under Islamic law, would dissolve
their marriage, then the parties may make an application to a court
of law and “the court shall make a finding that the marriage has
irreparably broken down and proceed to grant a decree of divorce”
(s 103(c)LMA).

98
Halima Athumani v Maulid Hamisi 1991 TLR 179 (HC) per Mwalusanya J

99
See Halim Athumani (above) where Mwalusanya J held that parties married in accordance with Islamic law are free to
select any MCB for purposes of s 101 LMA.

100
For a discussion of how these Boards operate in practice, see B Rwezaura and U Wanitzek (1988)
Since 1971 the special procedure for terminating Islamic marriages
has generated a number of conflicting judicial interpretations. The
conflicting decisions fall roughly into three groups. The first is
represented by Rattansi v Rattansi.101 In this case the parties, who
had contracted an Islamic marriage, referred their marital dispute to
the MCB. The Board having failed to reconcile them, issued a
certificate to that effect. Thereafter, the parties did not do any ‘act’
or ‘thing’ (under s 107(3)LMA) but instead applied to the court for a
decree of divorce. Katiti Ag J (as he then was) held, dismissing the
application, that since the parties had not done any ‘act’ or ‘thing’ as
stipulated under s 107(3) LMA, the court had no power to issue a
divorce decree.

The second group of decisions consist of cases where, instead of

referring their dispute to the MCB, the husband purports to dissolve
the marriage in accordance with Islamic law. Thereafter one of the
parties, usually the wife, applies to the court for ancillary relief. In
such cases, the courts have refused to order such ancillary relief on
the ground that the marriage is still subsisting. As note by Samatta
Ag J (as he was then) “except in case where the provisions of s
107(3) of the Law of Marriage Act 1971 apply, a court of law is
empowered to grant a decree of divorce only if it is satisfied that the
marriage in question has irreparably broken down”102 In such cases
some judges have opted to hear the application as if it was an
ordinary divorce application under s 107(2)LMA by taking evidence
to determine whether or not the marriage had broken down
irretrievably.

The third group of decisions are represented by Ashura Salim v Ali

Said103 where the wife, married under Islamic law, petitioned for

101
[1975] LRT n 55

102
Abdallah Saidi v Manamkuu Yusufu [ 1978] LRT n 43. See also Haruna Makwata v Fatuma Mselemu [1978] LRT n 8

103
DSM High Court (PC) Matrimonial Civil Appeal No 39/73 (unreported)
divorce in a local primary court on the ground of cruelty. She did not
rely on the special divorce procedure under s 107(3)LMA. The
primary court rejected her petition on the ground that there was
insufficient evidence to prove cruelty under the Law of Marriage Act
1971. On appeal to the High Court, Mwakasendo Ag J (as he then
was) upheld the appeal on the ground that the lower court should not
have dismissed the petition without first considering whether the
evidence available before the court was “of the kind that would, but
for the provisions of the Law of Marriage Act, have been held under
Islamic law to amount to a valid ground for dissolution of a
Mohamedan marriage.” The appellate court then evaluated the
evidence given at the trial court and concluded that there was
sufficient evidence to order a divorce under Islamic law. The
appellate court then made a finding that the marriage had
irretrievably broken down and ordered a divorce.

In an article published in 1989104 I argued that the approach adopted

in Ashura (above) was that the appellate court had introduced an
Islamic law standard of proof under s 107(2) LMA while using the
phraseology of s 107(3) LMA. I expressed doubt that such an
approach was in compliance with the LMA. It is clear from the
evidence that the alleged cruelty took place during the marriage
while according to s 107(3) the ‘act’ or ‘thing’ must take place after
the parties have been to the MCB and obtained a certificate that the
Board has failed to reconcile them.

In sum, the judicial differences noted above can be resolved as

follows. If parties married under Islamic law strictly comply with s
107(3) LMA the court should declare that the marriage has broken
down irreparably and proceed to grant a divorce decree. If, on the
other hand, parties do not comply with s 107(3)LMA, then the court
instead of dismissing the application/petition should hear the matter

104
B A Rwezaura, ‘The Court of Appeal of Tanzania and the Development of the Law of Domestic Relations’ Vol 16 No 2
(1989) Eastern Africa Law Review, Faculty of Law, University of Dar es Salaam,
under s 107(1) and (2).

Hamida Hamad Out Law Jo See also Ward Tribunals Act which
appears to change the law on MCBs). In 1991 Mwalusanya J held
that parties married under Islamic law are free to refer their
matrimonial dispute to a non-Islamic MCB and the certificates issued
by these bodies are recognised under the law.105

7.9 Legal Consequences of Divorce

The most important legal consequences of divorce are: first, that

divorce brings to an end a legal relationship of marriage between the
parties. This means all rights and obligations created by marriage
come to an end, except as the court may direct as part of the post-
divorce settlement. Second, divorce entitles the parties to apply for
certain relief such as division of matrimonial property and custody of
children. As will be noted below, the court has no jurisdiction to
divide matrimonial property except, upon “granting or subsequent to
the grant of a decree of separation or divorce..”. Third, divorce
enables the wife to remarry and, in the case of a husband, where the
marriage is monogamous, to regain his legal capacity to marry. It
should be emphasized that divorce does not affect the status of
parent along with its corresponding rights and responsibilities.

7.10 Divorce and Legal Pluralism

There are as many forms of divorce as there are forms of marriage in

Tanzania. As noted above, the primary object of the Law of Marriage
Act 1971 was to integrate the existing systems of personal law and to

105
See Halima Athumani v Maulid Hamis (1991)TLR 179
bring them under one umbrella legislation. As noted above, the
creation of special provisions for Islamic couples was intended to
preserve, albeit partially, the husband’s right to dissolve his marriage
in accordance with Islamic law. At the same time the law wanted to
protect the wife and children of the marriage by requiring the
involvement of state courts at the exit point. As noted above, such
arrangements have not been entirely smooth.

In the case of non-Muslim couples the LMA did not specifically make
special provisions for them.106 There is thus a uniform law for divorce
for the rest of the population irrespective of the form of marriage
contracted by the parties. But this is as far as the LMA is concerned.
In practice, however, couples married under customary law do
consider themselves fully divorced until they have undergone
customary divorce procedures. Thus where bride wealth was given,
the husband will demand some of it back especially if the marriage
did not result in many children. And the wife’s family might regard
such an obligation as binding upon them. There are indeed many
cases in which former sons in law sue their fathers in law claiming
refund of bridewealth107

7.11 Summary and Conclusion

The law of divorce has undergone a great deal of change not only in
Tanzania but also in Africa and beyond. The thrust of the change has
been a movement away from a fault based divorce to one based on
the irretrievable breakdown of marriage. Furthermore, there has
been a general acceptance that the breakdown of marriage is not
entirely the fault of one party but each party contributes, in varying

106
Note however that in deciding whether or not the marriage has broken down irreparably the could shall
also “have regard to the customs of the community to the parties belong.” LMA s 107(1)(b)

107
cases
degrees, to the breakdown of the marriage. Such change in the
perception of divorce has resulted in the liberalisation of the divorce
law and led in turn to what in the west has come to be known as the
divorce revolution. Today, divorce rates all over the world have gone
up and the old stigma that was formerly attached to divorce has
almost disappeared.

In the 21st century, in many parts of the world, there has been a
paradigm shift in that the law is now more concerned with the
protection of weaker family members after divorce than in
maintaining unhappy marriages. Such paradigm shift implies that
law students must pay more attention to the law relating to the
protection of family members from domestic violence and lack of
economic support, especially for wives and children, during
marriage. Equally important is the law relating to post-divorce
remedies such post-divorce maintenance, division of matrimonial
property, care and upbringing of minor children of the marriage. It is
to these matters that this discussion will now turn.

Bibliogrphy

B. Rwezaura and U Wanitzek (1988) Family Law Reform in Tanzania:

A Socio-Legal Report, 2 International Journal of Law, Policy and the
Family 1

Ali El Buhriy Kitabu cha Nikahi (year and publisher?)

B A Rwezaura, The Court of Appeal of Tanzania and the Development

of the Law of Domestic Relations, Eastern Africa Law Review Vol 16
No 2 Dec 1989, pp146-186

8.0 FINANCIAL CONSEQUENCES OF DIVORCE

[LECTURE EIGHT]

8.1 Introduction

The law relating to the financial consequences of divorce (and

separation) is probably the most central in the study of contemporary
family law in most jurisdictions. The next most important area, as we
shall note in Part Three of this Manual, is the law relating to children
and the allocation of responsibility for the care and upbringing of
minor children upon separation or divorce. This Lecture is concerned
with the law and practice relating to the financial consequences of
divorce. It also looks at maintenance pending a decree of divorce or
separation.

BOX

At the end of this lecture students will:

a. Acquire an understanding of the law and practice relating to

spousal maintenance both during the pendency of and after
separation or divorce;

b. Acquire knowledge of the law governing the court’s power to

distribute family property upon divorce and the factors the
court has to consider when making orders for division;

c. Understand the meaning of and the policy underlying the

concept of equality and fairness in the division of matrimonial
property;

d. Grasp the difference between matrimonial property and

separate property of spouses;
 e. Appreciate the evolution of the concept of contribution under s
114 LMA and its current status;

f. Grasp the meaning of and occupation rights of spouses to the

Matrimonial home during marriage;

g. Reflect on whether the law protects property rights of co-wives

at the time of divorce.

h. Understand the effect of the amendments to the Land Acts and

its impact on the regime of property relations between spouses.

END OF BOX

8.2 Maintenance Pending Judicial Separation or Divorce

We have noted, in relation to s 63 LMA, that marriage creates a

mutual duty upon the spouses to maintain one another. The duty to
maintain a spouse does not end when one of the parties petitions for
divorce. Hence section 115(1)(c) LMA states that the court may
order a man to pay maintenance to his wife during the course of any
matrimonial proceedings. It is also stated that the court may order a
wife to maintain her husband where the husband is wholly or
partially incapable of earning a livelihood. In such a case the court is
enjoined to have regard to the means of the wife and whether it is
reasonable so to order. In Anne Nyange v Charles Nyange (DSM HC
Matrimonial Cause No 12 of 1987) the wife successfully applied for
maintenance pending the determination of the divorce and was
granted a sum of Tsh 6,000 per month “as maintenance pending the
determination of the main Chamber application.” As the court
stressed such an order is an interim or temporary order and the
court has to “decide whether or not this sum should be reduced
when it hears all the evidence in connection with the main suit.” per
 108
Mnzavas JK

In determining the amount of any maintenance to be paid the court

shall base its assessment primarily on the means and needs of the
parties. Significantly, the court shall have regard also to the degree
of responsibility which the court apportions to each party for the
breakdown of marriage and to the customs of the community to
which the parties belong. These two criteria for assessing
maintenance are considered in the next section.

8.3 Maintenance after Divorce

The rules governing maintenance after divorce are contained in s

115 LMA and are to a large extent similar to the rules governing
maintenance during the pending of a matrimonial proceeding. The
major difference between them is that maintenance for a wife after
divorce is to be awarded only if the court “for special reason so
directs“. There is no similar proviso relating to maintenance for a
divorced husband whether or not he is incapable of earning a living.
Moreover, the LMA does not shed any light on why post-divorce
maintenance for a former wife should be subjected to a test of
special reasons. As the law stands, the former wife is not entitled to
post-divorce maintenance unless, for special reasons, the court
deems it appropriate to order maintenance. Indeed, it is not known,
and this writer is unaware of court decisions shedding any light on
what amounts to “special reasons.” (to be checked) There are
however cases where post divorce maintenance has been awarded to
former wives without any discussion regarding special reasons. (cite
case)109
108
Counsel for the potential maintenance payer in an application for an interim order has to be alert to and ensure that
the court has enough information about the payer’s means. This is to avoid a situation where the interim order sets the
standard for the final maintenance order with adverse consequences for one’s client.

109
In Monica Kasmiri v Tafuteni Shabani Moris DSM High Court Civ App No 79 of 2008, Per Wambura J where the judge
commenting on the award of Tshs 200,000 as “compensation” for the wife noted that “the Law of Marriage Act does not
provide for compensation or a handshake but for maintenance of the spouse. If the trial court and the District Court
Special mention must be made of LMA s 115(1) (f) which empowers
the court to order a husband who was a party to an Islamic form of
marriage to pay maintenance to his former wife during the
customary period of iddat which follows divorce. This is exclusively
the obligation of the former husband and is binding irrespective of
his financial ability. Another point to note is that in assessing
maintenance, whether for a former wife or husband, the court is
enjoined to have regard to two important factors, namely, a) the
degree of responsibility for the breakdown of marriage; and b) the
customs of the community to which the parties belong.

It could be argued that the award of maintenance should not be

based on the spouse’s degree of responsibility for the breakdown of
marriage. That maintenance should, instead, be based primarily on
the ability the paying spouse and the financial need of the recipient
spouse. That maintenance is not a reward for the innocent former
spouse and its denial a punishment for those who have behaved
badly in their marriage. Finally, that such a requirement encourages
the courts to go back to the rather embarrassing details of the
grounds for divorce in order to apportion blame. Such an enquiry
would certainly generate bitterness between the parties. Bitterness
is inconsistent with the policy of the law which seeks to maintain
good relations between the couple. This is more so where the couple
has children and have to co- operate in looking after their children.110

The award of maintenance based on the customs of the community to

which the parties belong also calls for comment. The question here is
believed that the respondent had the duty to maintain the appellant, they it should have stated so and fixed a monthly
amount for her maintenance until she is married or dies as provided for under s 115(1)(e), 116 and 117 of the Law of
Marriage Act.”

110
The idea of linking matrimonial misconduct to maintenance is part of the old law based on the matrimonial offence
doctrine. While it may rightly be viewed as a relic of the old law it is also best to see it as an intentional compromise
intended to appease the more conservative elements in the community. Indeed, it is comparable to s 114 (2)(a) LMA
which requires the court to have regard to the customs of the parties when making orders for the division of matrimonial
assets. Many African customs do not recognise the wife’s contribution in the same way that Bi Hawa Mohamed does.
Fortunately courts are merely enjoined to have regard to the customs of the parties but are not bound to follow them.
whether reference should be made of the parties’ customary law or
current practices in their community. Reference to the customs of
the parties was made in Bi Asha Mohamed. 111 It appears that courts
are required to follow customs only if such customs are consistent
with the general policy of the LMA. For example, it is the general
policy of the LMA to promote fairness and equality during marriage
and at its termination.112 There may be customs that do not adhere to
such principles and these, it is argued, should not be followed.113

Before concluding this lecture let me consider the provisions of ss

117-124 which also relate to maintenance. Section 117 authorises
the court to order the security of maintenance by creating a trust
from which future maintenance could be paid. In appropriate cases,
counsel representing a maintenance recipient could suggest to the
court to take this course of action. Section 118 permits the payment
of a lump sum or transfer of property, as settlement of all future
maintenance claims against the maintenance payer. Such an
agreement, however, requires the approval of the court.

Maintenance orders, unless expressed to last a shorter period, will

cease, unless secured, upon the death of the former husband or wife
whichever is earlier. Where the maintenance is secured, it will cease
upon the death of the recipient. Maintenance for a former wife or
former husband will also cease upon his or her remarriage.114 Where
the obligation to maintain a former spouse is based on an agreement,
it will also cease upon the death of either party unless the agreement

111
cite

112
This question came up in Pulcheria Pundungu v Samwel Huma Pundugu 1985 TLR 7 (HC) where it was held that in cases
where parties belong to different ethnic communities a non-traditional mode of life may be assumed in which case s 114
(2)(1) LMA does not apply. See also Ramadhan Bakari v Kichunda Mwenda and Anor [1973] LRT 33.

113
See Mbaruku v Chimonyogoro [1971] HCD 406. See also my comment on Maagwi Kimito

114
s 120 LMA. This is yet another example that certain provisions in the LMA assume all marriages are monogamous.
provided for a longer duration.115 Section 121 empowers the court to
rescind or vary maintenance orders where there is evidence of
misrepresentation or material change in the circumstances of the
parties. The court may also vary maintenance agreements if there is
material change in the parties’ circumstances.116

Maintenance payable under a court’s order cannot be assigned or

transferred to a third party. It is also not liable to be attached,
sequestered or levied upon for or in respect of any debt or claim
whatsoever save for a debt due to the Government. 117 Section 124
LMA governs the enforcement and recovery of maintenance arrears.
It states that the arrears of unsecured maintenance under any
agreement is recoverable against the defaulter as a debt. If such
maintenance arrears accrued before receivership or death of the
defaulter, it may still be provable in bankruptcy or claimed as a debt
to the estate of the defaulter. Maintenance arrears under an
agreement may not be recovered if it accrued more than three years
before the institution of a suit.118

Finally, maintenance orders shall be enforced in the same way as a

court decree for payment of money and the provisions of the Civil
Procedure Code relating to the enforcement and execution of
decrees for payment of money shall apply accordingly.119

8.4 The power of Court to divide Matrimonial Assets

The jurisdiction of the courts to divide matrimonial assets upon

separation or divorce is contained in s 114 LMA. The section also
115
Section 120(3)

116
s 122 LMA

117
section 123 LMA

118
section 124(3)

119
section 124(4)
empowers the court to order the sale of any such asset and the
division between the parties of the proceeds of sale. 120 In performing
this task the court shall have regard to four specific considerations.
These are: a) the customs of the parties, b) the extent of the
contribution of each spouse, c) any debts owed by either party if
incurred for the parties’ joint benefit and d) the needs of the infant
children of the parties.121 Section 114 also contains a general
guideline for division i.e. that subject to the above considerations the
court “shall incline towards equality.” These considerations,
including the requirement that the court must incline towards
equality, are considered below. Besides the provisions of s 114 LMA
we should also note s 108 LMA which requires the court hearing a
petition for separation or divorce to enquire into the arrangements
made or proposed by the parties regarding maintenance and division
of matrimonial property and “to satisfy itself that such arrangements
are reasonable.”

8.5 The meaning of matrimonial assets

The term matrimonial asset is not defined by the Law of Marriage

Act 1971. The Court of Appeal in Bi Hawa Mohamed,122 was of the
opinion that matrimonial assets mean things which are acquired by
120
See Mohmed Abdallah v Halima Lisangwe 1988 TLR 197 (HC) per Mnzavas JK. It must be emphasized that separation
and divorce are the only occasions when the court has power to divide matrimonial assets. As noted above, the court has
no such power upon the grant of a nullity decree, whether the decree holds that a marriage is void or voidable.

121
It should be noted that “the needs of the infant children, if any, of the marriage” do not mean that children are entitled
to a share in the matrimonial assets in the same way as spouses as some couples tend to assume. As noted by Wambura J,
in Monica Casmir v Tafuteni Shabani Moris (DSM High Court Civil App No 79 of 2008) “division of matrimonial property is
in respect of the married couple alone and not the children no matter how young or old they are. Children can rightly
inherit property after the death of their parents but are not subject to division of matrimonial properties.” See also
Mohamed M Salum v Jack O Athumani DSM High Court PC Civ App No 130 of 2004 where the appellate Judge disagreed
with the appellant husband’s submission that the lower court had erred in not awarding the house to the children of the
marriage whose future depended upon that house. The lower court had ordered the sale of the house and division of the
proceeds between the couple. Shangwa J noted that the future of the children did not depend on the house. Rather the
children’s future “depends on how well they are brought up by their parents. In law it is the duty of the father to maintain
his children by providing them with everything including clothing, food and education. If he discharges his duty of care
towards his children, they will be able to build their own houses when they grow up.”
the parties or one of them with the intention that such assets shall be
for their joint benefit and that of their children. 123 Subsequently the
same court held in Salum Bangu that matrimonial assets “mean
assets acquired by husband and wife for their joint benefit”. 124 This
definition appears to include a large number of assets that most
couples in Tanzania seek to be divided between them. As noted by C
S Binamungu, a review of cases on division of matrimonial assets
shows that over ninety percent of disputes relate to houses while the
remainder concern cars, domestic items, agricultural produce and
livestock.125

But while the above definition appears to cover most forms of family
assets, it falls short on certain family assets which C S Binamungu
has described as “emerging forms” of family assets. These include
company shares, dividends, pension funds, royalties, not to mention
the earning power of a spouse. It is these forms of properties that
are likely to exercise the minds of judges in the years to come. It is
also doubtful whether inherited assets or gifts which have not been
substantially improved upon by the claimant would qualify as family
assets.126 The same question would appear to apply to proceeds from
122
Bi Hawa Mohamed v Ally Sefu [1983] TLR 32, 34 (CA)

123
Relying on Halsbury’s Laws of England 4th Ed, at para 1064, (per Lord Hailsham) and on Lord Denning MR in Wachtel v
Wachtel [1973] Fam 72, at 90.

124
See Salum Bangu v Mariam Kibwana (Civ App No 29 of 1992 CA per Nyalali C J, Kisanga JS and Omar JA at p 7 of the
typed judgement).

125
Cyriacus S Binamungu, Division of Matrimonial Property in Tanzania: The Quest for Fairness, PhD Thesis, The Open
University of Tanzania (2012: 70). It also appears that where the husband builds a house for his girlfriend during the
marriage such a house is not to be considered part of the matrimonial property . See Eliester Philemon Lipangahela v
Daud Makuhana (High Court Civ Appeal No 139 of 2002 per Oriyo J. This issue was raised but not discussed and resolved
by the appellate judge. It is our view, nonetheless, that given the separate property regime provided for in the LMA,
spouses have the freedom to acquire and dispose of their individual assets as they wish until divorce o separation
proceedings have been instituted and an application for division made to the court. See also ( s138 of LMA prohibiting
alienation or disposition intended to defeat maintenance claims and presumably those intended to defeat division of
assets)

126
S 114(3) states that “references to assets acquired during marriage include assets owned before marriage by one
lottery draws.

In our view, the guiding principle is that s 114 seeks to divide

between parties any assets acquired by them during the marriage.
The question whether a piece of asset falls to be divided under s 114
will have to be resolved as a preliminary point. Hopefully, over time,
judicial opinion will tell us which asset is in or outside the ambit of
s114 bearing in mind the principle of separate property ownership
by the spouses. For example, it has been held that where a couple
makes a gift to a third party such as a mother in law, such gift ceases
to be part of the matrimonial asset. 127

8.6 From Wifely Duty to Contribution

The law relating to the division of matrimonial assets has developed

over time. There is a sense in which this development has followed a
path or a movement towards human rights and gender equality. Thus
in the first decade after the enactment of the Law of Marriage Act,
courts gave a narrow interpretation to the word “contribution”
contained in s 114. They took the view that housework and child
care, performed primarily by women, did not amount to contribution
to the acquisition of family assets. Judges following pre-1971
precedent held that housework and childcare were tasks which a
married woman performs as part of her duty as a wife. 128 Such tasks
were not to be counted as contribution to the acquisition of

party which have been substantially improved during the marriage by the other party or by their joint efforts.” The key
phrase here is “substantial improvement” whose meaning will have to be settled by judicial interpretation. See Doitha
Thuway v Amathi Bura High Court Civil Appeal No 9 of 1990 per E N Munuo J where the wife was awarded a share from
the family herd of cattle originally inherited by the husband from his father. The judge reasoned that although it was true
that the appellant husband had inherited the cattle, “ it is equally true that the cattle became part of the matrimonial
assets upon which the spouses worked to generate family income and more cattle.” See also B Rwezaura, ‘Tanzania:
Building a New Family Law out of a plural Legal System’ 523-540, 527 University of Louisville Journal of Family Law
(Volume 33 No 2, 1995).

127
See Omari Chikamba v Fatuma Mohamed Malunga 1989 TLR 39(HC) per Kazimoto

128
Iddi Kunganya v Ali Mpte [1967] HCD 49
matrimonial assets.129

In Bi Hawa Mohamed the Court of Appeal held that housework and

childcare constitute a contribution to the acquisition of matrimonial
assets within the meaning of s 114. The Court noted that “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.” Hence, “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. Although this development in the law has been rightly
applauded as a significant breakthrough, it is only the beginning of a
long road towards fairness in the division of matrimonial property. It
is essential, for example, for the court to determine in each case as a
question of fact the extent of the claimant’s contribution as required
by s 114 LMA. Moreover, the term fairness is itself very elusive given
the equal division does not necessarily achieve fairness. This lecture
will now consider the rights of spouses in the matrimonial home.130

8.7 Is the Spouse’s Behaviour a relevant Factor?

Apart from what Bi Hawa decided, as noted above, regarding the

domestic services of a wife within the meaning of section 114 LMA, it
also held that where a spouse’s misconduct has the effect of
substantially reducing his or her contribution towards the welfare of
the family and consequently, the acquisition of matrimonial assets
“she or he would not be entitled to a share in the property.” During
the early 1970s the wife in Bi Hawa, was given Tsh 18,000 to set up a
family business but neither did she set up the business nor account

129
For a review of earlier decisions that were overruled by Bi Hawa Mohamedi , see Zawadi Abdallah v Ibrahim
Iddi 1981 TLR 311 per Mapigano J See also B A Rwezaura “Division of Matrimonial Assets under the Tanzania
Marriage Law (in Verfasung und Recht in Ubersee)

130
See C S Binamungu (thesis)
for the money. It was held that that “the squandering of that money
by the appellant when weighed against her contribution, can be
regarded as a matrimonial misconduct which reduced to nothing her
contribution towards the welfare of the family and the consequential
acquisition of matrimonial assets.” Quoting from Lord Justice Cairns
in Martin v Martin [1976] 3 All E R 629, “such conduct must be
taken into account because a spouse cannot be allowed to fritter
away assets by extravagant living or reckless speculation and then to
claim as great a share of what is left as he would have been entitled
to if he had behaved reasonably.” (to be continued)

8.8 Rights in the Matrimonial Home

Section 59 LMA states that where one of the parties to the marriage
is the owner of a house constituting the matrimonial home, the
spouse who does not own such a house has a right to reside in it as
long as the marriage subsists. The owning spouse is not permitted to
sell, mortgage, lease it to tenants or give it away as a gift to anyone
without the permission of the other spouse. Failure to obtain the
wife’s consent would render any such transaction unenforceable as
against that spouse.131 This point was raised in Maria Goreti
Mutarubukwa132 where the husband purported to mortgage the
matrimonial home to a local bank without informing his wife. Upon
default the Bank sought to sell the property to recover its loan. It
was held that the mortgage was not enforceable because the Bank
had failed to exercise reasonable diligence by not checking if the
131
In Idda Mwakalindile v NBC Holdings Corporation and Anor (Civ App No 59 of 2000 Court of Appeal at Mbeya) where
the matrimonial home was sold in contravention of s 59 LMA the Court of Appeal of Tanzania held that the sale was
lawful but the wife had a right to continue to reside in the matrimonial home.

132
Maria Goreti Katura Mutarubukwa v National Bank of Commerce Ltd and 2 Others, DSM High Court Land Case No 28 of
2004 per Kileo J (cited in Binamungu CS thesis at p. )
house was or was not a matrimonial home. As it turned out the wife
not only had an interest in the house as a matrimonial home but she
was also a joint owner of the said house.

In order to enhance the occupational rights of the non-owner spouse,

section 59 LMA makes further provisions to the effect that such
spouse “shall be deemed to have an interest therein capable of being
protected by caveat, caution or otherwise under any law for the time
being in force relating to the registration of title to land or of deeds.”
In the event the owner spouse contravenes the above provisions by
alienating the matrimonial home against the wishes of the non-owner
spouse, then under s 59(2)LMA the non-owner spouse is entitled to
continue to reside in the said matrimonial home until the marriage is
terminated or until the court upon separation or divorce makes
orders to the contrary.133

There is a further provision under section 59 LMA which protects a

third-party who has innocently acquired the estate or interest in the
matrimonial home. In such a case the third-party has to prove to the
court’s satisfaction that he or she had no notice of the interest of the
other spouse and could not have become aware of such interests by
the exercise of reasonable diligence. In these circumstances the best
protection for the non-owner spouse is to have his or her interest in
the matrimonial home registered as a caveat or caution at the land
office. Such registration operates as constructive notice to the whole
world of the non-owner spouse’s interests in the matrimonial home.

Additional provisions under LMA s 59 (3)(a) & (b) are intended to

override the protection given to the non-owner spouse. They include
cases where the court orders the sale of the matrimonial home in the
execution of a decree against either spouse; and where the sale is
ordered by a trustee in bankruptcy of either spouse. It is also stated
that s 59 LMA shall not affect the Rent Restriction Act which provide
133
See Hadija Mnene v Ally Maberi Mbaga and the National Bank of Commerce (Mwanza High Court Civ App No 40 of
1995 (per Lugakingira J unrep.) cited in Binamungu CS Thesis at 115.
for the right of a spouse to continue residing in any premises which
were previously rented by a spouse or former spouse.

The special provisions relating to the matrimonial home, as stated in

the marginal note of s 59 are indeed special. They represent one of
the few instances, apart from s 114, where the law deliberately
invades the realm of a married person’s property rights. It is indeed
an exception to the general rule contained in section 58 LMA that
marriage does not operate to change existing or future property
rights of a married person.

Further inroads into the separate property regime came in 2006

following an amendment to the Land Act whereby section 161 of the
Land Act 1999 (Cap 113R.E.2002) creates a new category of
property rights called “occupancy in common”.134......to be continued
CSB p 107. Occupancy in common under section 161 arises in two
situations.135 The first arises in cases where a spouse acquires
interest in land, there is a presumption that both spouses have
occupancy in common unless the spouse acquiring such property
makes it absolutely clear that he or she is the sole owner. The second
arises in situations where one spouse is the sole owner of an interest
in land but the other spouse has made contribution whereby the
value of the said property has been enhanced. In such cases the non-
owning spouse may also acquire occupancy in common in relation to
134
Section 161 (1) of the Land Act provides that “[w]here a spouse obtains land under a right of occupancy for the co-
occupation and use of both spouses or where there is more than one wife, all spouses, there shall be a presumption that,
unless a provision in the certificate of occupancy or certificate of customary occupancy clearly states that one spouse is
taking the right of occupancy in his or her name only or that the spouses are taking the land as occupiers in common, the
spouse will hold the land as occupiers in common and, unless the presumption is rebutted in the manner stated in this
subsection, the Registrar shall register the spouses as occupiers in common. Section 161(2) goes on to state that “[w]here
land held (for) a right of occupancy is held in the name of one spouse only but the other spouse or spouses contribute by
their labour to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be deemed by
virtue of that labour to have acquired an interest in that land in the nature of an occupancy in common of that land with
the spouse in whose name the certificate of occupancy or customary certificate of occupancy has been registered.

135
It should be stressed that occupancy in common under s 161 of the Land Act applies more widely to interest in land and
is not confined to rights in the matrimonial home.
that property.136 (to be refined later)

8.9 The Concept of Fairness and Its Implementation

The Court of Appeal stated in Bi Hawa Mohamed 137 that the object of
the Law of Marriage Act was to “cure or rectify what may be
described as the traditional exploitation and oppression of married
women by their husbands.” 138 By its interpretation of s 114 to
include housework and child care as a contribution to the acquisition
of matrimonial assets, the Court of Appeal wanted to ensure fairness
in the division of family assets. It cannot be denied that most married
women are housewives whose major contribution consists of
housework and child care. Since that landmark decision, a number of
High Court judges have held that discrimination based on gender
was contrary to the Tanzania Constitution.139 As will be noted from
the general guideline contained in s 114(2)(d) the law requires the
court when applying s 114 LMA to incline towards equality of
division between husband and wife.

But although equality of division between the couple has the

superficial appeal of fairness, it must be recognised that the concept
of fairness is more complex than a 50/50 division of matrimonial
assets. Hence, although it can be correctly argued that s 114
provides a sound framework for division of assets, the concept of
fairness requires courts to consider a range of circumstances, often
unique to the couple, including their contribution, needs, age, health,
earning capacity, responsibility to new or existing spouses and
children, if any. Indeed, even the concept of contribution itself is

136
Section 161 of the Land Act specifically and expressly applies to wives where the husband is married to more than one
wife thus avoiding the pitfall of s 114 of the LMA which does not cover the rights of the other wives.

137
Bi Hawa Mohamed v Ally Sefu [1983] TLR 32

138
Bi Hawa Mohamed v Ally Sefu [1983] TLR 32, at 44

139
See BR &UW the Constitutionalization of Family Law
complex as it depends on the variety of circumstances of the parties.
As noted by Twaib J, the Court of Appeal in Bi Hawa’s case did not
hold that domestic duties account for half of the couple’s efforts
towards the acquisition of matrimonial assets. Rather, it held that
“the wife’s contribution towards the acquisition of the assets must
also be considered”140 Finally, it must be stressed that the concept of
fairness is not static. It changes with time in every society and
hence, past decisions should not be followed without question as
binding precedent. Rather they should be seen as offering a useful
starting point and not to be taken as definitive guide to all future
disputes relating to property division. But as noted above, in relation
to the provisions of section 161 of the Land Act, the concept of
common occupancy contains a wide scope for ensuring that justice is
done not only to the divorcing or separating wife but also to the wife
or wives staying in the marriage.

8.10 The Rights of the Remaining Co-Wives

It may seem strange that s 114 LMA does not make provisions for
existing co-wives in the division of family assets. It is strange
because, as we have noted above, the LMA specifically makes
provisions for the celebration of polygamous marriages. 141 Such an
oversight was tested in Maryam Mbaraka142 where an application by
co-wife for her share of the family assets was turned down by the
Court of Appeal. According to the Court of Appeal, the applicant
could not succeed because she was not a party to the original divorce
action between her husband and her co-wife. 143 A similar question
140
See Gasper Faustine Shirima v Anna E Enock Sika DSM High Court Civil App No 103 of 2010 (unrep).

141
See s 10(1)(b), s 10(2)(a), s 11(1)(a),(b), s 15(2), s 57,

142
Maryam Mbaraka Salehe v Abood Saleh Abood (1988) TLR 29

143
There are no provisions in the LMA for a co-wife to apply to be joined as party in the divorce proceedings between her
husband and the co-wife. For a useful critique of such a state of the law, see Bart Rwezaura, ‘Tanzania: Building a New
Family Law out of a plural legal system’ University of Louisville Journal of Family Law (1995) 523, 530 and Rachel Howland
arose in Sadiki M Mandari v Saum S Mandari144 where the appellant
husband argued that the District court order for equal division of
matrimonial assets between him and the former wife had ignored the
property rights of the other wives. Shangwa J dismissed such an
argument, noting that it was “not backed by law” and also that “the
other wives who are married to him will enjoy whatever properties
that will remain with him after the division of the matrimonial
property in issue has been executed.” Indeed, even s 114 (2)(d)
speaks of the children of the marriage, not, for example, the children
of the family. This suggests that even the children born of the other
co-wives are not included in the division of assets scheme under the
LMA.

But as noted above, this shortcoming has, a certain extent been

rectified by the 2006 amendment to the Land Act where under s 161
the contribution of the co-wives is specifically acknowledged and
protected.145

8.11 Summary and Conclusion

Tanzania follows a separate property regime in the sense that

marriage does not have any effect on existing or future ownership
rights of the married couple. This is shown by the provision of s 58
LMA which states that a “marriage shall not operate to change the
ownership of any property to which either the husband or the wife
may be entitled or to prevent either the husband or the wife from
acquiring, holding and disposing of any property”. The general effect
of this section is that each spouse has the power to acquire and
dispose his or her separate property before and during marriage
without interference from the other spouse. Furthermore, the court
has no power to interfere with a married person’s property rights
& Ashley Koenen, ‘Divorce and Polygamy in Tanzania’ (Social Justice Paper 15 http: ecommons. Iuce.edu/social_justice 15)

144
DSM High Court Civil App No 10 of 2006 (unreported)

145
except at the time of separation or divorce in accordance with the
express provisions of s 114 of the LMA.146

This Chapter has discussed various provisions which empower the

court to interfere with the property rights of the couple either during
marriage or upon divorce. When the couple is still married, the
court’s power is limited to an order requiring the husband to
maintain his wife and children.147 Exceptionally, the court may also
order a wife to maintain her husband. It is upon separation or
divorce that the court has more extensive powers to divide family
assets and, where appropriate, to order the sale of any asset and to
divide its proceeds between the couple. In the division of family
assets the court is required to adhere to the guidelines provided
under s 114. We have noted the development of the law in this area
leading to judicial recognition of housework and child care as
contribution to the acquisition of family assets. The gaps in this area
include the law’s silence regarding the property rights of co-wives at
the time of separation and divorce. Moreover the children of the co-
wives appear not to be included under s 114(2)(d).148

However, as argued above, a notable amendment to the Land Act in

2006 appears to have moved the law on this aspect closer to the
community of property regime thus clearly weakening the provision
of s 58 LMA.149

The question concerning which property falls to be divided under s

146
See Mwanamkuu Ismail v Peris Maregeli, DSM High Court Civ App No 76 of 2005 (unrep) per Mlay J where the court
held that the “division of matrimonial property proceeds from the grant of a decree of separation or divorce [and not
otherwise].”

147
Note also that under section 64 LMA the wife is presumed to have authority to pledge her husband’s credit in order to
obtain her necessaries of life and those of the family.

148
But see section xx of the Law of the Child Act (No xx of 2009)

149
As the law appears to move towards the direction of community of property regime students will need to become
familiar with legal principles governing community of property.
114 will continue to exercise judicial minds for a long time to come.
The emergency of new forms of property, the rise of women in
professions and business, and the growth of middle class and
wealthy families will require more nuanced judicial approach to the
question of fairness in the division of matrimonial assets.

9.0 PROTECTION OF FAMILY FROM VIOLENCE [LECTURE

NINE]

9.1 Introduction

It was noted in the first lecture that one of the functions of family law
is to protect family members from physical, psychological and
economic harm. Domestic violence is an example of such harm. The
term domestic violence refers to acts of physical, mental, and/or
sexual abuse committed by one spouse against the other or against
the children of the family. In polygamous households, domestic
violence may also occur between co-wives. In this lecture we
consider domestic violence and the extent to which family law
protects family members from such physical and psychological harm.

The starting point here is the Law of Marriage which surprisingly

contains very little on this form of protection. The closest reference
to domestic violence in the Law of Marriage Act is section 66 which
prohibits married couples from inflicting “corporal punishment”
upon one another. But there are no additional provisions for
enforcing this prohibition. On the other hand there is s 139 LMA
which empowers the court during the hearing of any matrimonial
proceedings or on or after the grant of the decree annulment,
separation or divorce, to order any person to refrain from forcing his
or her company on his or her spouse or former spouse and from
other acts of molestation. The term molestation is not defined by the
LMA. It should be taken to include most acts of domestic violence.

Indirectly, there is also section 140 LMA which provides that no

proceedings may be brought to compel cohabitation between
married couples. Others include provisions governing voluntary
separation and divorce. These carry the implication that a victim of
domestic violence could secure protection by obtaining physical
separation or by ending the marriage through divorce. But there are
no provisions to prohibit the aggressive spouse from following the
victim where he/she lives and attacking her there.

In effect the Law of Marriage Act is largely silent on the protection of

spouses from domestic violence. This is in contrast to jurisdictions
such as South Africa and Zimbabwe which have specific legislation
designed to fight domestic violence.150

BOX

At the end of this lecture students will:

a. Acquire an understanding of the nature and legal meaning of

domestic violence;

b. Become familiar with the civil and criminal remedies available

to the victim of domestic violence;

c. Become acquainted with the human rights implications of

domestic violence;

d. Achieve an awareness of the limits of law in the fight against

domestic violence.

END OF BOX

150
Cite the relevant legislation
 9.2 Domestic Violence Defined

Domestic violence occurs when one of the spouses or former spouse

commits or threatens to commit acts of physical and/or emotional
abuse or violence against the other. It is committed when one of the
spouses destroys the other spouse’s property or isolates him/her
from potential sources of support including family and friends.
Exclusion from access to personal items such as food, money, mobile
phones, transport, credit cards, etc; amounts to domestic violence;
including various forms of harassment such as stalking and silent
phone calls.151

9.3 Civil Remedies

As noted above the Law of Marriage Act is largely silent and clearly
inadequate to prevent domestic violence. But note must be taken of s
139 LMA which empowers the court during the pendency of any
matrimonial proceedings or on or after the grant of the decree
annulment, separation or divorce, to order any person to refrain from
forcing his or her company on his or her spouse or former spouse
and from other acts of molestation. The term molestation is not
defined by the LMA. It should be taken to include most acts of
domestic violence. There is, however, section 65(b) of the Law of
Marriage Act which provides that “a husband and wife shall have the
same liability in tort towards each other as if they were unmarried.”
Much of the foregoing analysis relating to domestic violence could
fall under the common law tort of assault and/or battery.

Assault can be defined as an intentional attempt or threat to inflict

injury upon a person. Such an attempt must be capable of causing, in
the mind of the intended victim, reasonable apprehension of bodily
harm. In order for the harm apprehended to be reasonable the
potential attacker must have the present capability to cause the
151
See, Domestic Violence: A guide to Civil Remedies and Criminal Sanctions, The UK Lord Chancellor’s
Department (2003, at p3) cited in Rebecca Probert (2003, 107).
intended harm.152 An assault is both a crime and a tort. Therefore, an
attacker may face both criminal and civil sanctions. A criminal
assault conviction may result in a fine, imprisonment, or both. In a
civil assault case, the victim may be entitled to monetary damages
from the assailant.

9.4 Criminal Remedies

Domestic violence is also committed in the form of criminal conduct

such as physical assault (in its various grading), sexual assault,
threats/intimidation and murder.153 These offences are provided for
under the Penal Code154 and although they are intended to apply to
strangers, they can also be used to prevent and punish domestic
violence. There are, however, several factors that hinder the effective
application of these laws such that, except for murder, it can be said
that they are not helpful in fighting domestic violence. 155

9.5 Domestic Violence and Human Rights

Domestic violence affects a large proportion of women compared to

men. Women are subordinate to men both economically and socially.
There is a sense in which domestic violence can be viewed as a male
weapon to assert control over women and to maintain their
152
put ref

153
In Republic v Kihandika Lwenyakali 1973 LRT n 91 the husband was found guilty of manslaughter on account of the
injuries he inflicted upon his wife. Onyiuke J, in his judgement, noted that the accused husband “was undoubtedly guilty
of a most barbarous and callous conduct by [tying and] leaving a 7 months pregnant wife bound with ropes the whole
night and inflicting cut wounds on her with some hot sharp instrument. The accused exhibited a shocking degree of
callousness and perversity in his treatment of the deceased. His conduct was most revolting. ” The accused as sentenced
to 12 years imprisonment.

154
See Penal Code Cap 16 R. E . 2002 and Sexual Offences Special Provisions (SOSPA) Cap 110 R.E. 2002

155
see Domestic Violence in Tanzania, in Scholastica Jullu,Safina Hassan, Mary Njau and Florence Tesha, (eds)
Women’s Legal Aid Centre (WLAC) (2009) pp 106-200
subordination to men.156 On that basis, domestic violence has been
associated with “gender based violence”, that is, violence directed at
a woman because she is a woman. International human rights
treaties including, in particular, the United Nations Convention on
the Elimination of Discrimination Against Women (CEDAW) prohibit
discrimination against women and gender based violence. In the
light of the above domestic violence is now viewed as a human rights
issue and not simply a crime or a civil wrong.

States parties to international human rights treaties are required to

take deliberate and effective measures to eradicate domestic
violence. In Tanzania, as noted above, there are no specific
provisions designed to prevent or at least control domestic violence.
Law enforcement agencies and policy makers are reluctant to apply
existing legal provisions to protect victims of domestic violence.
Indeed, in many communities domestic violence is viewed as an
internal family matter and there is also in many communities a
degree of tolerance to domestic violence. Community leaders are
also known to be reluctant to intervene or condemn acts of violence
against women.

9.6 The Limits and Limitations of the law

It has been noted above that Tanzania has not taken adequate steps
to combat domestic violence at various levels. For example, no
special legislation has been enacted to target domestic violence as a
social problem. Although there is a special desk for battered women
at certain police stations, there is no evidence that husbands who
beat up their wives are actively sought and punished. Some battered

156
See Deus Buganywa, “Ndoa ni Ndoana kwa Ghathi Chacha binti wa miaka 21” in Raia Mwema, Novemba
th
27 -December 3, 2013 p 6 where it is reported that a 23 year old husband Chacha Mwita attacked his 21 year
old wife Ghathi and severed off her foot. It appears the wife delayed opening the door for her husband when
he returned home at night. It is reported that the wife delayed opening the door which made Chacha
suspicious. But instead of searching in the house for the suspected lover, he simply attacked his wife with a
machette.
wives are slow to report domestic violence for fear that such
reporting would make matters worse for them. Some women fear
that reporting would lead to the imprisonment of a bread winner.
There is also social pressure against wives taking husbands to court
or reporting them to authorities.157 The inadequacy of the law against
domestic violence is no doubt an accurate reflection of the
community’s ambivalence about how to tackle this social problem. It
is clear that any efforts to establish a legal framework to fight
domestic violence must begin at the level of the community because
the law cannot work in isolation.

9.7 Summary and Conclusion

One of the functions of family law is to protect family members from

harm. The Law of Marriage Act, which is Tanzania’s principal
legislation on family law, has little to say about the protection of
spouses and their children from domestic violence. Section 65(b)
LMA which states that spouses are liable to torts committed against
one another opens up the possibility of civil actions but these are a
rarity. The fact that most acts of domestic violence are punishable as
criminal offences also implies that spouses who are guilty of
domestic violence can be prosecuted and punished. But again this is
rarely done. The low status of women in our society and the
community’s tolerance to the vice has been implicated in the
persistence of domestic violence. This has in turn provided strong
ground for the widely accepted view that domestic violence is a
human rights issue. Tanzania is a party to several international
treaties prohibiting discrimination against women and the protection
of women’s human rights. It is clear that Tanzania has failed to
protect spouses from domestic violence and has therefore breached
its international treaty obligations. Tanzania has shown sensitivity to

157
For example, Gathi Chacha, who had her foot chopped off with a machete by her husband reports that the
husband’s relatives were upset by her because she reported the incident to the authorities. See Raia Mwema,
Nov 27-Dec 3rd (2013) ar p 6.
gender equality in other spheres. It should now take another step to
fight domestic violence and make the family a safe place for all its
members.

PART THREE

10.0 THE LAW OF THE CHILD [ LECTURE

TEN]

10.1 Introduction: Child and Family

The general law relating to the child is wider than what students of
family law are expected to study. For example, the law relating to the
child in conflict with the law is not included as part of the family law
curriculum. Similarly, the law relating to child care and protection
and child employment is also outside the family law syllabus. It is
important to set these boundaries in order to focus specifically on the
law relating to the child within the family context. The approach
taken in this lecture is to explore the rights and obligations of the
child within the family. The approach envisages a tripartite
relationship between the child, the family and the state. This lecture
examines the rights of the child within the family, the status of the
child under the law, presumption and proof of parentage and
guardianship.

BOX

At the end of this lecture students will:

 a. Acquire an understanding of the various rights and duties the
child has within the family;

b. Acquire an insight into the law relating to the legal status of the
child in the family;

c. Become familiar with the rules on presumption and proof of

parentage and the legal effects of such proof; and

d. Acquire knowledge of the concept of guardianship and the

rights and obligations of legal guardians.

END OF BOX

10.2 Rights and Duties of the Child in the Family

The idea that a child has rights within the family is novel in many
jurisdictions and indeed even today its roots are not yet firmly
entrenched. For many years the law assumed that the child would be
safe and secure within the family and therefore did not need any
rights. The position changed radically after the United Nations
Convention on the Rights of the Child (UNCRC) came into force in
1990 and was ratified by almost all states including Tanzania. 158 The
enactment of the Law of the Child Act 2009(LCA) aimed, among
other things, at implementing some of the provisions of the UNCRC.

Part 2 of the LCA consists of several provisions prescribing the rights

that the child is entitled to enjoy. These include the right not to be
discriminated against, the right to a name and nationality, the right
to grow up with parents, the right to express his or her views and to
participate in all decisions affecting him or her. The child also has
158
Only Somalia, South Sudan and the United States of America are not parties to the UNCRC. There are
indications that Somalia will become party in the near future.
the right to be free from torture or other cruel and degrading
treatment and/or punishment. The term ‘degrading treatment’ means
an act done to a child with the intention of humiliating or lowering
that child’s dignity.159 Any cultural practices or customs which
dehumanise or are injurious to the physical and mental well-being of
the child are also an infringement of the child‘s rights.

Furthermore, no correction of a child is permitted which is

unreasonable in kind or in degree according to the age, physical and
mental condition of the child. Again no correction of a child is
permitted if the child by reason of tender age or otherwise is not
capable of understanding the purpose of the correction. It is also
prohibited to employ or engage a child in any activity that may be
harmful to his or her health, education, mental, physical or moral
development.160

Apart from the child’s rights enumerated above the LCA also
provides for the general duties and responsibilities of the child.
These include the duty to work for the cohesion of the family; to
respect his or her parents, guardians, superiors and elders and to
assist them in case of need; to serve his or her community and nation
by placing his or her physical and intellectual abilities at its service
in accordance with his or her age and ability; to preserve and
strengthen social and national cohesion; and to preserve and to
strengthen the positive cultural values of his or her community and
the nation in general in relation to other members of the community
or nation.161 It is clear from the above discussion that Tanzania law
now recognises that a child has rights and responsibilities. This has
significant implications for the way the law looks at the relationship
159
s 13(3) LCA

160
Child development in relation to the welfare of the child means the process of change during which a child
is able to reach his or her highest physical, mental, emotional and social potential through continued
interaction with the environment around that child (adopted from s 3, LCA).

161
Adopted from Article 31 of the African Charter on the Rights and Welfare of the Child 1990.
between the child on the one hand and his or her parents on the
other hand. As will be noted later in Lecture Ten, the acceptance that
children have rights is the foundation of the concept of parental
responsibility.

10.3 Status of the Child under the Law

The term status of the child means the standing of the child before
the law. Section 4 of the LCA defines a child as “a person below the
age of eighteen years.” The status of being a child has important
legal consequences. On the one hand the law considers the child to
be vulnerable and therefore entitled to protection. Such protection
carries with it a number of legal incapacities.162 On the other hand,
the law also recognises that a child is a human being, albeit young,
vulnerable and still evolving, who is entitled to exercise his or her
human rights consistent with the child‘s age and evolving capacity.
The child is also entitled to respect and dignity from adults. 163 Many
of the provisions of the Law of the Child Act can be summed up as
reflecting the two competing strands.

For a example, whereas the child has no legal capacity to enter into a
binding contract except for necessaries of life, section 77(1) LCA
states that a child has the right to work. Yet the said right to work is
qualified by a series of provisions aimed at protecting the child from
exploitation and other harmful employment practices. Again the law
recognises that a child, at a particular age, has the legal capacity to
162
For example, a child is not legally competent to contract except for necessaries of life. A child may not sue
or be sued in tort except by the next friend. Parents are responsible for the torts committed by their children.
A child lacks the capacity to marry except with parental consent provided he or she has reached the minimum
age for marriage, fixed at 14yrs.

163
Section 11 LCA states that a child who is capable of forming an opinion shall have a right to express his or
her opinion and the right to be listened to and to have a right to participate in decisions which affect his or her
well-being. This section takes after Art 12(1) of the UNCRC which states “States Parties shall assure to the child
who is capable of forming his or her own views the right to express those views freely in all matters affecting
the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
commit offences, at the same time the law seeks to make special
provisions for the child in conflict with the law as provided in Parts
IX and X of the LCA.

In sum, the legal status of the child in Tanzania has been greatly
raised by the enactment of the LCA, which seeks to a fair degree to
implement the CRC in accordance with Tanzania’s international
treaty obligations.

10.4 Proof of Parentage

The parents of a child are the most important persons in the child’s
life. Parents are the link between the child, the state and the law.
Ideally, every child has to have identifiable parents who are legally
responsible for the child’s upbringing and who remain responsible
for that child until the child attains majority age or other parents are
found for that child. Indeed the entire structure of the law relating to
the child is based on the strong assumption that the child has
parents or persons acting in the place of parents. Once the parents
are absent, the state has to take over in order to act as a substitute
parent. It is for this reason that proof of parentage is important not
only for purposes of the child’s identity and emotional well being but
also for the smooth operation of the entire legal structure designed
to support the child throughout his or her childhood.

Section 35 of LCA states that a person seeking to be declared a

parent of a child may rely on any one of the following five pieces of
evidence. These are: a) valid marriage between the parents of the
child, b) name of the parent having been entered in the Register of
Births, c) performance by the man of a customary ceremony
signifying that he is the father of the child, d) public
acknowledgement of parentage by the father, e) DNA test results.
What emerges from the foregoing five criteria is that the law has
provided a wide and flexible framework for proof of parentage. It has
combined the common law presumption of legitimacy with the
African customary law principles relating to proof of parentage.

Also to be noted is that the law has seemingly moved away from the
concept of legitimacy to one of parentage. Thus s 3 LCA defines a
parent as a biological father or mother and says nothing about the
relationship between the father and the child’s mother. The question
as to who may apply to court for “an order to confirm the parentage
of a child” section 34 LCA provides five persons. These are, a) the
child, b) the parent of the child, c) the guardian of the child, d) a
social welfare officer; or e) any other interested person but with
special leave of the court.164

10.5 Presumption of Parentage

Although the LCA does not specifically speak of the common law
presumption of paternity, it is clear from s 35, (except for the DNA
testing), that the evidence required to prove parentage (read
paternity) is based on the old presumption of paternity. For example,
marriage creates the presumption that the husband is the child’s
father until the contrary is proved.165 The inclusion of the name of the
father in the Register of Births also raises a rebuttable presumption
of parentage. The performance of customary ceremony by the child’s
father and/or public acknowledgement of paternity also raises a
similar presumption of parentage. It seems that where such evidence
is produced and one of the parties wishes to rebut the presumption,
that party would have to produce further evidence to rebut such a
presumption. In this context, it is ultimately the DNA test that will
164
The requirement for special leave of court is intended to guard against a third party, such as an adulterer,
seeking to challenge the parentage of a child born in wedlock. See Amina Bakari v Ramadhani Rajabu 1984 TLR
41(HC). There are also cases where in a visa application some foreign embassies have required that applicants
undergo a DNA tests to confirm the parentage of a child or children being taken overseas. (source?)

165
See Rule 175 of the Customary Law Declaration Order (Government Notice No 279/1963). In Amina Bakari v Ramadhani
Rajabu 1984 TLR 41 (HC) Lugakingira J stated that “the contract of marriage confers certain rights on the husband,
including the right to children born during the subsistence of the marriage...It is therefore open neither to the wife nor to
her lover to deny the husband’s paternity to a child born during the subsistence of the marriage”.
prove beyond doubt that the putative father is or is not in fact the
child’s father. It appears that the English Common law presumption
of paternity was extremely useful tool in the period before science
and technology could conclusively show who was the child’s father. It
remains useful even today given that there is limited availability of
DNA testing in most parts of Tanzania. The question that the LCA
does not appear to address is whether the parentage of a child born
during wedlock can be challenged by any interested party

10.6 Guardianship

A guardian is a person other than a parent who has parental

responsibility over a child. Such a person may be appointed by deed,
will, or order of the court. The guardian has the duty of taking care
of the child and managing the child’s property as if he or she were
the child’s parent. As noted above the law relating to the child in
most jurisdictions is based on the assumption that a child has a
parent or in the absence of a parent, someone who stands in the
place of a parent. A guardian is such a person who stands in the
shoes of the parent. There are also other persons who are neither
parents nor guardians but are vested with parental responsibility. For
example, a patron of an approved residential home, a manager of an
institution and foster parents are persons legally vested parental
responsibility to act in lieu of parents.166

10.7 Summary and Conclusion

This lecture has identified the scope of the law relating to the child.
The focus is on the child within the family and the child’s
relationship with his or her parents. The discussion on the rights of
the child within the family has shown that the child is now legally
recognised as a holder of rights. This lecture has discussed the legal

166
See ss 52 and 53 LCA.
status of the child and pointed out that although the law recognises a
child to be a holder of rights, yet the child is also immature and
vulnerable; hence requiring legal protection. Such protection is
partly delivered in the form of legal incapacity. 167 We have also noted
that the law relating to proof of parentage is based partly on the old
presumptions of parentage except for the DNA test as evidence of
parentage. We have noted that the development of science and
technology has gradually weakened the importance of the old
presumptions as to parentage. Guardianship, it has been argued,
arises out of the need to provide a substitute parent for the child.
This lecture has noted also that the entire arrangement for child
upbringing and protection requires the involvement of a parent or a
person/institution acting as parent. In cases where a parent is
absent, it has become necessary for the law to create substitute
parents such as the guardian. The next lecture examines the child’s
rights and obligations of within the new concept of parental
responsibility

11.0 PARENTAL RESPONSIBILITY [LECTURE ELEVEN]

11.1 Introduction: The Origins of the Concept

The term parental responsibility was first used in the English

Children Act of 1989. As a concept, it replaced the term parental
rights and duties, (or parental powers and duties) that was
previously being used to describe the obligations and powers of
parents. The change in the terminology from parental rights and

167
The question then is where should one draw a line between protection and respect for the child’s
rights. Part of the answer lies is in the concept of the child’s evolving capacity. This concept suggests
that the child should be prepared to assume progressively the full exercise of his or her rights as he or
she grows up. See Art 5 CRC.
powers to parental responsibility was intended first, to emphasize
the point that the duty to care for a child and to raise him or her to
high moral, physical and emotional health was a fundamental task of
parenthood, and second, that the only justification for the authority
conferred on a parent was to enable him or her to discharge parental
responsibility properly.168 As noted by Professor Brenda Hogget (as
she then was), the use of the term parental responsibility was used in
the Children Act to “emphasize the practical reality that bringing up
children is a serious responsibility, rather than a matter of legal
rights.”169 It is with this background in mind that we must approach
the meaning of the term “parental responsibility” and its application
under the Tanzania Parent and Child Act 2009.

BOX

At the end of this lecture students will:

a. Gain an insight into the historical background, the origin and

content of parental responsibility;

b. Acquire an understanding of the rules relating to the acquisition

of parental responsibility; and

c. Be familiar with the rules relating to the acquisition of parental

responsibility by unmarried parents.

END OF BOX

11.2 Parental Responsibility: Content and Application

Section 9 LCA has a marginal note titled: “parental duty and

168
See The Department of Health’s introductory guide to the Children Act 1989 (HMSO, 1989, para 1.4) cited in
PM Bromley and N V Lowe, Bromley’s Family Law Butterworths 8th Ed. (1992) p 298

169
Brenda Hoggett, The Children Bill:The Aim [1989] Fam Law 217. The parental responsibility also appears in
Art 5 of the Convention on the Rights of the Child (UNCRC)
responsibility”. The note encapsulates the essence of the whole
section. Section 9(3) LCA states that “every parent shall have duties
and responsibilities whether imposed by law or otherwise towards
the child”. Section 9(4) specifically refers to the term “parental
responsibility”, noting that where the biological parents of a child
are deceased, “parental responsibility” may be passed on to a third
party. The use of the term duties and responsibilities also suggests
that the term parental responsibility has been largely adopted by the
LCA as appropriate to describe a bundle of rights, powers and
responsibilities that a parent has in relation to the child. 170 What
remains now is to consider the specific contents of the concept of
parental responsibility.

Having examined the contents of Part II of the LCA, it appears that

both sections 8 and 9 of the LCA express much of what is contained
in the concept of parental responsibility. 171 Section 8 deals largely
with the duty of a parent to maintain a child and makes additional
special provisions for a disabled child under 8(5) and 8(6). Section
9(3) states that every parent has duties and responsibility towards
his or her child, in particular, to protect the child from neglect,
discrimination, violence, abuse, exposure to physical and moral
hazards and oppression. Furthermore, a parent has the duty to
provide guidance; care; assistance and to assure the child of survival
and development.

Although the provisions of the LCA, as noted above, contain a

comprehensive list of parental responsibilities, there are specific
provisions that are missing from the list. Some of these are found in
other pieces of legislation such as the Law of Marriage Act 1971.
170
Section 64(2) also refers to the assumption of ‘parental responsibilities’ by the spouses where adoption is
made jointly to the husband and wife.

171
The problem with section 8 LCA is that it appears to address not only parents (as in 8(1)) but also third
parties, as in 8(2)-(6). This is in contrast to section 9 which addresses parents and third-parties vested with
parental responsibility.
There are, for example, no provisions in the LAC regarding the
responsibility of the parent to administer a child’s property; to
represent a child in legal proceedings; to agree to the change of a
child’s surname; to determine the child’s religious education; to
consent to or veto the taking of a child out of Tanzania by the other
parent or third party; to consent to or veto the issue of a passport to
a child; to consent to the child’s medical treatment; and, in the case
of the child‘s death, to have the responsibility to bury or cremate his
or her remains.

No doubt there are administrative rules enabling a parent to perform

some of the above acts or to have relevant powers even though this
is not specifically contained in the LCA. 172 The authors of Bromley’s
Family Law, after noting that there was no agreed list of parental
responsibilities have nonetheless suggested 16 items as
encapsulating the content of parental responsibilities. Some of these
derived from common law while others are extracted from existing
statutory provisions.173

In sum Tanzania, perhaps like many other jurisdictions, has now

adopted the use of the term parental responsibility to express the
obligations of parents and to stress the gravity of the task of
parenting. Moreover, parental responsibility also is under pinned by
the principle that any rights vested by law upon the parents are so
vested to enable the parent to perform his or her responsibilities to
the child and not for the benefit of the parent.

11.3 Who has Parental Responsibility?

Section 3 LAC defines a parent as a biological father or mother, the

adoptive father or mother, and any other person under whose care a
child has been committed. This definition covers three categories of

172
Look out for some of these…and state them here

173
See P M Bromley and NV Love, Bromley’s Family Law (1992) at pp 301
parents. The first refers to natural parents; the second relates
adoptive parents; and the last includes a wide range of individuals
and institutions who have been entrusted with the care of a child.

The first category, as we have noted under section 35 LAC, concerns

a person who believes he or she is the parent of a child and is
entitled to apply to be declared a parent of a given child. Under
normal circumstances parents do not need to apply under section 35
to be declared parents. Such applications are ordinarily reserved for
persons whose status as parents is doubtful or is being challenged by
a third party. Indeed, section 35 is intended to replace the Affiliation
Ordinance by providing the means for unmarried parents to seek a
declaration of parentage.

The second category relates to adoptive parents covered by Part VI

of the LCA (ss 55-76). Section 64(b) states that the legal effect of an
adoption order is to vest in the adoptive parent assumes all parental
responsibility in relation to the adopted child “as if the child was
born to the adoptive parent in lawful wedlock and was not the child
of any other person. And where the adoptive order is made jointly to
a husband and wife, “they shall assume the parental responsibilities
jointly and the child shall relate to them as parents, as if born
naturally by them as husband and wife.” The law and procedures
governing child adoption is considered in Lecture Twelve.

The third category relates to natural persons and institution. The

LCA states that the patron of an approved residential home or
manager of an institution, or the foster parents with whom the child
is placed174 “shall have parental responsibility for the child while the
child is with him or with the institution.” Section 138 LCA also states
that while the child is in an approved residential home or institution,
the staff of the home or institution “shall assume parental

174
A foster parent means a person who is not a parent of a child but is willing and capable to undertake the
care, welfare and maintenance of the child, See s 52(2) LCA.
responsibilities for the child and ensure that the rights of the child
under this Act are protected.” And such parental responsibility shall
also include “an application to a court to protect the best interest of
the child where it becomes necessary.”175

In the context of the child who is in conflict with the law, the court
may order a child to be remanded in the custody of the
Commissioner for Social Welfare, a fit person, 176 or an institution
named in the order. These three are also vested with parental
responsibility in respect of the child in question. There is another
category of persons who may be vested with parental responsibility
as provided under section 9(4) LCA. Section 9(4) LCA states that
responsibility for a child whose both parents are deceased may be
passed on to a relative of either parent or a custodian by way of
court order or any traditional arrangement.177 The term custodian is
not defined in the LAC. Also unclear is the legal provisions under
which the court is authorised to pass on parental responsibility to a
relative or custodian.

11.4 Acquisition of Parental Responsibility by Unmarried

Parents

Parental responsibility in respect of a child born to unmarried

parents may be acquired either by agreement between the parents
or by a parentage order of court. Thus where there is no paternity
175
Section 138(3) LCA.

176
A fit person is defined under section 3 LCA as “a person of full age who is of high moral character and
integrity and of sound mind who is not a relative of the child and capable of looking after a child, and has been
approved by a social welfare officer as being able to provide a caring home for a child”

177
The idea that a child whose both parents have died may be passed on to a relative in accordance with “any
traditional arrangement” without the intervention of the court is quite problematic. The fact that such
relatives are not legally (only morally) responsible for the child does not offer sufficient security for the child
and it is arguably not in the best interest of the child. Given that it is possible for relatives to adopt such
children under s 54 LCA it is unnecessary to have additional provision for informally passing on parental
responsibility without creating a legal relationship between the child and such relative
dispute between the biological father and mother of the child both
parents will be taken as having parental responsibility in the same
way as if their child was born during wedlock. And where there is a
paternity dispute between the biological parents as to the parentage
of the child, then the father may apply to court to be declared a
parent under section 34(1)(b) LCA. Given such a scenario, it is more
likely that DNA test would be required to prove the child’s
paternity.178

Where the court makes an order of parentage in respect of the

biological father of a child, “such a biological father shall assume the
responsibility to the child in the same manner as may be in respect
of a child born in wedlock…”.179 Note also that in the same
proceedings for the declaration of parentage, the court has
jurisdiction to grant custody to the applicant on such conditions as it
may deem fit. At the same time the court may make access orders in
favour of the non-custodian parent.180

There may be odd cases where a rapist wishes to claim a child born
out his criminal activity. In such cases, the rapist could apply under s
34(1)(e) seeking special leave of court to be declared a parent. It is
reasonable to assume that such an application will be turned down
on public policy grounds. This would be more so if the mother of the
child is opposed to the application. In these circumstances the child
will remain in the sole custody of the mother until he or she attains
majority age. There is still the possibility that the child himself or
herself may apply under s 34(1)(a) to have his or her father declared
a parent. In this case the court might be moved to grant the
application particularly if the mother is deceased.

178
See sections 35(e) and 36 LCA

179
See section 36(4)

180
See s37(2) and s 38 LCA
Another possible case scenario is where an adulterer seeks to be
declared a father of a child born to a married woman against the
wishes of both the mother and her husband. Here again, the
adulterer may apply under LCA s 34(1)(e) but it is unlikely that the
court would grant leave. 181

In sum the current law replaces the Affiliation Ordinance (see s 160
LCA) and the provisions of customary law regarding the declaration
of paternity.182 It also makes provisions for custody and maintenance
of children born to unmarried parents.183

11.6 Summary and Conclusion

The term parental responsibility originated from the English

Children Act 1989 and has since been adopted by many jurisdictions
including Tanzania. The term expresses a qualitative change in the
relationship between parent and child. It underlines the gravity of
parenting and stresses that parental rights are derived from the
duties of a parent and exist for the benefit of the child.(insert
Gillick quote) Although the Law of the Child Act 2009 has listed a
number of parental duties, the list is not exhaustive. One has to look
in other statutes and common law to complete the long list of
parental obligations. Regarding who has parental responsibilities, we
have noted that besides parents there are also non-parents and
public institutions that are vested with parental responsibility to care
for the child for a defined period of time or until the child attains
majority. This lecture has also discussed statutory provisions relating
to the acquisition of parental responsibilities by unmarried parents.
The introduction, for the first time in Tanzania, of DNA testing has
removed the uncertainties previously encountered in establishing
181
Note that a husband may claim damages for adultery against such an adulterer under section 72 LMA Note
the practice of English Courts in…..

182
The Law of Persons, Government Notice No 279/1963.

183
See sections 36(4) and 43
paternity. That said, the cost of the procedure will remain
unaffordable for the majority of Tanzanians. Moreover, it remains to
be seen, whether the provision for compulsory DNA testing will stay
unchallenged on the ground that it constitutes human rights
violation.

12. CHILD CUSTODY ON FAMILY BREAK DOWN [LECTURE

TWELVE]

12.0 Introduction

The question of who shall have responsibility for the care and
upbringing of a child arises normally at the time parents wish to live
apart and have not made suitable arrangements for the long term
care of their child or children. It is in that context that a court of law
is invited to intervene to allocate responsibility for the care and
upbringing of the affected child or children. This Lecture examines
the principles applicable in the determination of who shall have
responsibility for the care and upbringing of a child when the family
breaks down.

BOX

At the end of this lecture students will:

a. Acquire an understanding of the principle of best interest of the

child as a principle of domestic law;

b. Gain an insight into the difficulties of applying the best interest

principle in allocating custody;
 c. Be introduced to the best interest check-list which emerged from
the need to give content to the best interest principle; and

d. Gain knowledge of how courts of law apply the best interest

principle in divorce and separation cases.

END OF BOX

12.1 Applicable Principles

It is widely accepted that the family is “the natural environment for

the growth and well-being of all its members and particularly
children”184 Hence, when unfortunately, parents divorce it becomes
necessary to determine who of the two parents will reside with the
child and provide a home for that child while the other parent
continues to discharge his or her parental responsibility as
determined by the court applying the principle of best interests of
the child.185 Unless there are reasons to the contrary, the court will
normally place custody of the child with one parent and allow the
other access to the child at predetermined intervals. The court will
also make maintenance orders requiring the non-custodian parent to
provide periodic maintenance to the child including other
necessaries of life depending upon the age and needs of the child.

Where there are exceptional circumstances making it undesirable to

entrust a child with any of the two parents, the court may order that
the child be placed under the care of a relative or an institution
responsible for children.186In all cases involving the determination of
a child’s future upbringing the court must apply the best interest
184
Preamble to the United Nations Convention on the Rights of the Child (1989)

185
See section 125 Law of Marriage Act [Cap 29 R. E .2002). See also Jerome Joseph v Ester Jerome ( DSM High
Court Civ App No 7 of 2009) where Muruke J also relies on Art 3 of the UN Convention on the Rights of the
Child (CRC), noting that Art 3 of CRC is also relevant and applicable given that Tanzania ratified the
Convention in 1991 and is a party to this treaty.
standard.

12.2 Best Interest of the Child Principle

Section 125 (2) LMA states that in deciding in whose custody an

infant should be placed, “the paramount consideration shall be the
welfare of the infant.” The terms “welfare of the infant” and “best
interest of the child” have the same meaning and are often used
interchangeably187. However, the modern and more widely used term
is the best interest of the child. In J v C,188 a leading case on the
meaning of best interest principle as a paramount consideration,
Lord McDermott stated that the paramountcy principle connotes:

“a process whereby, when all the relevant facts,

relationships, claims and wishes of parents, risks, choices,
and other circumstances are taken into account and
weighed, the course to be followed will be that which is
most in the interests of the child’s welfare as that term is
now to be understood. That is the first consideration
because of its first importance and the paramount
consideration because it rules upon or determines the
course to be followed.”

Hence, as noted by Bromley and Lowe, in decisions affecting the

child the court’s sole concern is the child’s welfare and other factors
“are relevant only to the extent that they can assist the court in
ascertaining the best solution for the child.” 189 How does the
186
See Chapter 13 on alternative care for the child.

187
See s 4(2), 26(2) and 37(4) LCA. See also Articles 3(1) and 21; UN Convention on the Rights of the Child
(1989). But also see s 1(1) of the English Children Act 1989 which speaks of “the child’s welfare shall be the
court’s paramount consideration.” See also s 39(1) LCA which speaks of “best interest of the child..”

188
[1970] AC 668, 710-711, [1969] 1 All E R 788, 820-821, HL

189
P M Bromley and NV Lowe , Bromley’s Family Law, 8th Ed (1992) p 336. See also Ramesh Rajput v Mrs
Sunanda Rajput 1988 TLR 96 (CA) where the Court of Appeal stressed that “the most important factor in
principle of best interests apply in practice? Consider for example a
case of child abduction by parents. Where the child after abduction
has lived for a long time with the abductor parent and has become
settled in that home environment, the court will not place much
weight on the wrong committed by the abducting parent. Rather, it
will give priority and place emphasis on the harm that the child
would suffer if separated from the abductor parent. If there are no
other factors to contradict the best interests principle (except for the
fact of abduction), the court will not remove the child from the
abductor. In other words, court will not seek to address the wrong
committed by one parent against the other. Rather, it will make a
decision which is in the best interest of the child.( cite case/s)

It must be stressed however, that the best interest of the child has at
least two levels of emphasis, that is, the strong and the weak version.
The weak version states as provided, for example, in Art 3 CRC that
“the best interest of the child shall be a primary consideration.” The
use of the indefinite article “a” shows that the decision-maker has to
put into consideration not only the best interest of the child but also
other factors in order to arrive at a decision affecting the child’s
interests. For example number of considerations including the
wishes, in child adoption, the court is expected to take into account
the views and wishes of the biological parent before it makes an
adoption order. (fn)

12.3 Indeterminacy of the Best Interest

Apart from the strong and weaker version of this principle, the best
interest is widely known to be indeterminate and difficult to apply in
practice. There are many reasons for this. First, decisions that seek
to promote the best interest of the child will depend on the context
or a matter before the court. As noted above, in child adoption cases,
the court will not order adoption where the parents are opposed to it.
It is a different case if the court is to determine which of the two
parents should have custody of that child. The application of best
interest also depends on the time and the society’s scientific

custody proceedings is the welfare of the child.”

understanding of what actually promotes the child’s best interest.
Hence, social, economic and scientific change will inevitably affect
the court’s perception and decision as to what is in the best interest
of the child. Cultural and religious factors have also an influence on
the decisions we make about what will promote the child’s best
interests. In order to reduce the uncertainty in the application of this
principle, the English Children Act 1989 included a checklist, as
noted below, to assist the court in applying the principle.

12.4 Best Interests Check-List

The best interest checklist simply means a further elaboration of the

best interest principle to provide guidance to the court in the
application of this important guideline. Six of the most widely
accepted items in the checklist include the following:

i) Custody of a young child must be with the mother unless

there are contrary indications; (ss 26(2), 39 (1) LCA and
s125(3)LMA)190

ii) The views of an older child must always be sought and

seriously considered before a decision is made affecting the
interests of that child, taking into consideration the child’s
age and understanding; (s 39(2)(d)LCA, s125(2)(b)LMA)191

iii) Siblings should not be separated unless there are

compelling circumstances. (s39(2)(e)LCA, s 125(4)LMA)192

iv) Delay in resolving matters affecting a child is likely to be

190
See Ramesh Rajput v Mrs Sunanda Rajput 1988 TLR 96 (CA)

191
See Mariam Tumbo v Harold Tumbo 1983 TLR 293 (HC) where Lugakingira J held that “in matters of custody the welfare
of the infant is of paramount consideration, but where the infant is of an age to express an independent opinion the court
is obliged to have regard to his or her wishes”.

192
See Jerome Joseph v Ester Jerome (DSM High Court Matrimonial Civ Appeal No 7 of 2009) per Muruke J where this
principle was applied.
 detrimental to the child; (s 2; First Schedule; Guiding
Principles; Uganda Children Statute, 1996)

v) Removing a child from a familiar environment where he or

she has become settled is likely to be detrimental to that
child best interest (ss 26(2), 39(2)(f) LCA and s125(3) LMA.

vi) In making a decision affecting a child or children, the court

or any decision maker must consider each child individually,
the age and gender of the child; and further consider the
effect of that decision on that particular child (s39(2)(b)LCA
and s125(4)LMA.

The best interest checklist was first included in the English Children
Act 1989. Section 1 of the Act states, that when a court determines
any question with respect to the upbringing of the child or the
administration of the child’s property, or the application of any
income arising from such property, “the child’s welfare shall be the
court’s paramount consideration.” The foregoing provision limits the
application of the best interest principle to specific matters stated in
the Act.

Since the 1990s the best interest principle has become adopted by
certain jurisdictions as a general principle of law to be applied in the
interpretation and application child-specific legislation. A good
example is the Uganda Children Statute of 1996 (fn) and the South
Africa Children Act (year...) (fn) As a general principle of the whole
Act it requires courts to apply this principle in the interpretation and
application of the entire legislation and in all decisions affecting
children. The inspiration for a wider application of the best interest
principle comes from Art 3 of the UN CRC and Art 4 of the OAU
Charter on the Rights and Welfare of the African Child (1990). The
broadening of the best interest standard to apply to all child related
decisions in certain jurisdictions is a direct consequence of the best
interest acquiring an international status as a principle of children’s
rights law (Philip Alston et all).

The Law of the Child Act 2009 contain a checklist under s39 which is
combined with the rights of the child under s 26 LCA. The LCA also
adopts the best interest principle as a general guideline of the Act.
Section 4 LCA states that “the best interests of the child shall be the
primary consideration in all actions concerning a child whether
undertaken by public or private social welfare institutions, courts or
administrative bodies. This is a clear domestication of Article 3 of the
CRC even though the implications of this measure are yet to be fully
explored. On its face, section 4 LCA requires that the best interest of
the child principle should guide all decisions affecting children
whether made by public bodies such as the courts in the application
of any legislation including the LCA, or by private social welfare
institutions and other bodies whose decisions affect children. Yet it
remains to be seen whether s 4 LCA applies to the whole LCA and
whether the section goes beyond the LAC to apply to all decisions
affecting the child made elsewhere and in other contexts in the
private and public spheres.

There are additional guidelines which appear in the LCA in the form
of rights of the child. For example, s 7 LCA provides that a child shall
be entitled to live with his or her parents or guardians. There are
also occasional references to the principle, for example, under s 26
concerning care and upbringing of a child when parents separate or
divorce. There is also reference to provisions of the Law of Marriage
Act relating to the power of the court to make custody orders under
ss 125-137. In sum, the Law of the Child Act 2009 has adopted the
best interest principle as a general principle under s 4 and also as a
guideline to the application of certain provisions of the LCA and
possibly other legislation.

12.5 Child Custody on Divorce: Application of Best Interest

Section 26 LCA directs that the provisions of the Law of Marriage

Act governing child custody shall apply in all cases where the child’s
parents become separated or divorced. In addition to that s 26 LCA
makes further provisions that a child shall have a right to reside with
a parent who, “in the opinion of the court, is capable of raising and
maintaining the child in the best interest of the child.” The child also
shall have a right “to visit and stay with the other parent whenever
he [or she] desires, unless such arrangement interferes with [the
child’s] school or training programme” (s 26(1)(c). But as noted
above, the substantive provisions governing child custody and access
are to be found under s 125-137 of the Law of Marriage Act. It is to
these sections that the discussion turns.

One point to bear in mind is that in theory parents are free to look
after their children as they consider fit without any interference by
the state. But there are points of departure when the law takes over
as super parent and tells parents how to care for their children. This
happens in cases where, during marriage, one of the parents, e.g.
the mother, invites the court to enter the family unit to resolve a
dispute between her and the father over their child. Such an
occasion is anticipated under s 125 LMA where the court may, at any
time, by order, place an infant in the custody of any of the child’s
parent, a relative, or a child welfare organization.

The state may also intervene where parents separate or divorce and
the court has to determine who has to have the care of the infant
children. According to s 127(1) LMA court may make such an order
when granting a decree of separation or divorce or at any time
thereafter, on the application of the father or mother of the infant of
the marriage (see s 127LMA). When the court intervenes to decide
which one of the two parents should have custody of the child, it
applies the best interest standard as the paramount consideration
(see s 125(2) LMA). But where parents wishing to separate or
divorce have made arrangements or proposals regarding the
maintenance and custody of their children, the court is required to
evaluate these arrangements and to approve them if they are in the
best interests of the infant children of the marriage193

While the best interest principle remains paramount, the court is

also required to have regard to the wishes of the parents, the wishes
of the child where such a child is of an age to express an
independent opinion. 194The court must also have regard to “the
customs of the community to which the parties belong.” (s25(2)(c)
LMA). Where the child in question is below the age of seven year
there is a rebuttable presumption that it is in the interest of that
child to be with the mother. However, the presumption may be
rebutted where changing custody will lead to the unsettling of the
child by moving him or her to a new environment. In cases where the
determination of custody involves more than one child, the court
shall not be bound to place both or all the children with the same
parent. Rather, the court shall consider the welfare of each child
independently and decide who shall have custody of that child.

The person who has custody of a child has the power to decide all
questions relating to the upbringing and education of the child
subject to any conditions that the court may consider appropriate to
impose. These conditions may relate to the place where the child is
to reside, the manner of the child’s education and the religion in
which the child is to be brought up. The court may also order that
the child be permitted to visit the other parent at specific intervals
and for such periods as the court may consider reasonable. Where
applicable the court may make orders that the child be permitted to
visit the family of a parent who is dead in order to maintain ties with
the child’s extended family. In appropriate cases the court may
“prohibit the person given custody from taking the infant outside the
193
See s 108 (c) LMA

194
See Monica Kasmiri v Tafuteni Shabani Moris DSM High Court Civil Appeal No 79 of 2008 per Wambura J where the
judge noted before deciding custody of older children the court ought to call them and seek their views as to which parent
they prefer to live with and give reasons why.
United Republic of Tanzania.” This condition is relevant where the
child’s parents belong to different nationalities and there is concern
that the custodial parent may take the child out of Tanzania thus
depriving the non-custodial parent regular access to the child.(note
that Tz is not party to the Hague Convention on Child Abduction.
Placing such a condition is not enough to stop a determined parent)

12 .6 Summary and Conclusion

This lecture has discussed the importance of the best interest

standard and its relevance as a guide in the decision making process
involving the upbringing of children in the context of family
breakdown. The chapter has noted that historically the principle of
best interest first emerged as a principle of family law and was
applied by courts when determining the upbringing of a child and the
administration of the child’s property. In later years, especially after
1990, the best interest principle emerged as a rule of international
children’s rights law with a much wider application. Despite its
growth in popularity, the best interest principle is also acknowledged
to be vague and difficult to apply. The emergency of the best interest
checklist in some jurisdictions was intended to reduce its
indeterminacy and to assist courts and other decision makers in
arriving at decisions that promote the best interest of the child.

The principle of best interest of the child is contained in the Law of

the Child Act 2009 and the Law of Marriage Act 1971. The LMA
views the best interest as principle of domestic law while the LCA
broadens the application of the principle to cover all matters
involving children, both in the context of family law and beyond. The
LCA has therefore successfully domesticated the best interest
principle as a rule of international children’s rights law. What
remains is for the courts and administrative bodies to mainstream
this principle in their decision making processes involving children.
Bibliography

Leticia V K Rweyemamu (2006) Judicial Implementation of the

Principle of Best Interests of the Child in matters relating to custody:
A Case study of Court Decisions from Ilala District, Dar es Salaam,
Tanzania, LLM Dissertation in Women’s Law; Southern and Eastern
African Regional Centre for Women’s Law (SEARCWL) University of
Zimbabwe, Harare, Zimbabwe.

13.0 CHILD MAINTENANCE AND SUPPORT OBLIGATIONS

[LECTURE THIRTEEN]

13.1 Introduction

The Tanzania Child Development Policy (2008) has identified five

basic rights of the child. These are: i) the child’s right to life; ii) the
right to develop; iii) the right to protection; iv) the right to
participation; and v) the right not to be discriminated against. There
is no doubt that child support obligations touch all the five rights.
There is also an underlying assumption that these five basic rights
are best enjoyed within the family environment and, as noted in
lecture ten, the child’s parents are legally obliged to ensure that the
child enjoys those rights. This chapter discusses the legal provisions
relating to the duty to maintain and support the child.

BOX
 At the end of this lecture students will:

a. Acquire an understanding of the legal provisions governing

child maintenance during marriage;

b. Become familiar with the law governing child maintenance

during separation or divorce,

c. Acquire knowledge of the law governing the maintenance of

children of unmarried parents;

d. Learn about the factors the court has to consider when making
maintenance orders for children; and

e. Acquire knowledge of the law relating to the duration of

maintenance orders, their enforcement, variation and
discharge.

END OF BOX

13.2 Child Maintenance During Marriage

Section 8 LCA states that it shall be the duty of a parent, guardian or

any other person having custody of a child to maintain that child. The
duty to maintain a child includes the duty to provide food, shelter,
clothing, medical care (including immunization), education and
guidance, liberty and the right to play and leisure. Much of this has
been discussed in lecture ten as part of parental responsibility. It
should be noted that child maintenance obligation is normally
unproblematic when parents are living together under one roof.
Problems arise when parents divorce and the court has to decide
who has to have custody of the minor children and who is to provide
maintenance for them. Where the husband neglects the family while
remaining married to his wife, section 63 LMA requires such a
husband to provide maintenance to his wife and his children under
s129 LMA. The court has power to order the father to maintain his
children under s 130 LMA.

13.3 Child Maintenance on Separation or Divorce

The duty to provide child maintenance when parents separate or

divorce is narrower than that envisaged above under section 8 LCA.
Section 129 LMA expresses this duty accurately. It states that it
shall be the duty of a man to maintain his infant children, whether
they are in his custody or the custody of any other person. This duty
requires that the man provide accommodation, clothing, food and
education, or their cost, as may be reasonable having regard to his
means and station in life. The woman is also required under s 129(2)
LMA to maintain or contribute to the maintenance of her infant
children if their father is dead or his whereabouts are unknown, or if
and so far as he is unable to maintain them. In this regard, the court
is empowered under s 130(1) to order a man to pay maintenance for
the benefit of his infant child. The court may also order a woman to
maintain or contribute to the maintenance of her infant child or
children where it is reasonable to make such an order having regard
to the woman’s means. It must be stressed here that although the
primary duty to maintain a child is placed upon the man, the mother
is also expected to contribute to the child’s maintenance or to
assume full responsibility where the father is not able to provide
such maintenance due to various circumstances. It must be stressed
that under section 46 LCA, the person entitled to receive and
administer child maintenance is the person who has legal custody of
the child.

13.4 Child Maintenance by Unmarried Parent

It was noted in Lecture Ten that an unmarried father may apply to a

court of law to be declared a father of a child under s 34(1)(b)LAC.
Where the court makes an order of parentage in line with the above
cited provisions, a man in respect of whom such an order has been
made, shall be under a duty to contribute towards the welfare and
maintenance of the child as if the child had been born during
wedlock (s41 LCA).

Where no proceedings have been taken out to determine the father

of a non-marital child, the court may still make a maintenance order
against an alleged biological father on the application of the
expectant mother at any time before or after the birth of the child.
The court may also require an alleged biological father to pay
maintenance for the child if there is evidence that the alleged
biological father had within the last twenty four months after the
birth of the child paid maintenance for that child.

It is further provided that, in the case of the alleged biological

father, the court shall refuse to grant a maintenance order against
him unless it is satisfied first, that there is reasonable cause to
believe that the man alleged to be the father of the child “is in truth
and in fact the father of that child” and that the application for a
maintenance order is made in good faith and not for any purpose of
intimidation and extortion. And second, the court must be satisfied
that the man alleged to be the father has been requested by or on
behalf of the applicant to provide maintenance for the child and he
has refused or neglected to provide such maintenance or has made
inadequate provision (s 43(2) LCA).

13.5 Considerations when Making Maintenance Orders

In making the maintenance order, the court shall have regard to the
income and wealth of both parents or of the person legally liable to
maintain the child, including his financial responsibility with respect
to the maintenance of other children.195 The court shall also consider
the cost of living in the area where the child lives and any
impairment of the earning capacity of the maintenance payer (s 44
LCA). The court shall also consider the rights of the child stipulated
in Part II of the LCA (ss 4-14 LCA) [See Lecture Nine]. It is also
195
See Festina Kibutu v Mbaya Ngajimba 1985 TLR 44 (HC)
provided under s 45(1) LCA and s 136 LMA that before making a
maintenance order the court may request a social welfare officer to
prepare a social investigation report to assist in the determination of
the award. It must be stressed though that s 136 LMA empowers the
court also to seek the advice of a person who is trained or
experienced in child welfare but shall not be bound to follow advice.

But where the court chooses to order a social investigation report

under s 45(1) LCA and the report is produced, the court is bound to
consider such report before making a maintenance order.
Nonetheless, after considering such report the court still has
discretion to follow or not to follow the recommendations contained
in that report.

13.6 Duration, Enforcement, Variation and Discharge of

Maintenance Orders

Subject to express orders by the court, an order for maintenance

expires when the beneficiary child attains the age of 18 years (s 47
LCA and s132 LMA). Maintenance may however continue to be paid,
despite the child attaining majority age, where that child is engaged
in a course of continuing education or training. Application to extend
maintenance beyond majority age may be brought either by a parent
who has custody of the child; a person who has custody of the child
or the child himself or herself. An action may be brought to the court
by an interested person, to enforce an order of maintenance within
forty five days after the order is made or is due. (Note that s 48(3)
LCA speaks of any person, but surely he/she must have an interest in
the matter; see s 133 LMA speaks of interested person).

Where the court makes an order for maintenance of a child or

children, it may also order the person liable to secure such
maintenance in whole or any part of it by vesting any property in
trustees upon trust to pay such maintenance out of the income from
such property. Every maintenance order made by a court shall be
enforceable in respect of any maintenance accrued under such order
in the same manner as decree for the payment of money passed by
that court and the provisions of the Civil Procedure Code relating to
the enforcement and execution of decrees for payment of money
shall apply mutatis mutandis to the enforcement of an order for
maintenance (s124 (4)LMA).

Variation or discharge of maintenance orders can be made by the

court at any time and from time to time on an application by the
person having custody of the child or any other person legally liable
to maintain the child (s49 LCA). The court may vary or rescind an
order for maintenance if it is satisfied that the said order was based
on any misrepresentation or mistake of fact or where there has been
any material change in the circumstances of the parties (s 133LMA).
The court may also vary from time to time a maintenance agreement
made between the parties (s134LMA).

Where the court makes an order for maintenance of a child or

children, it may also order the person liable to secure such
maintenance in whole or any part of it by vesting any property in
trustees upon trust to pay such maintenance out of the income from
such property.

13.8 Summary and Conclusion

This lecture has discussed child maintenance obligations during

marriage and upon separation or divorce. We have also examined the
maintenance of a child born to parents who are not married to one
another. The factors to be considered by the court when ordering
maintenance have been examined. Duration of maintenance orders,
their enforcement, variation and discharge have been considered
briefly. What requires stressing here is that the statutory duty to
maintain a child remains largely upon male shoulders and only
exceptionally upon mothers. This may appear to be a natural division
of labour in a society where men are predominantly in paid
employment while women are home makers. But this approach of the
law appears to define child maintenance more narrowly to mean
merely the supply of money with which to purchase the child’s needs
from the market. But in societies where the child’s needs are
obtained from farming and livestock, it is clear that women shoulder,
at least an equal, if not a greater maintenance burden. Moreover, if
the definitions of child maintenance under s 8 LCA and s 129LMA
are to be read to include day to day child care, then again mothers
do shoulder the greater burden of child maintenance than men. The
next lecture examines child care outside the traditional family.

14.0 ALTERNATIVE CARE FOR THE CHILD [LECTURE

FOURTEEN]

14.1 Introduction

The preamble to the United Nations Convention on the Rights of the

Child states that the family is the natural environment for the growth
and well-being of all its members and particularly children. We have
also noted that the existence of the family is the foundation on which
the entire structure for the care and upbringing of the child is based.
Without the family, much of the law designed for the care and
support of the child will collapse. And, indeed, as we will note in the
final lecture, there is an essential partnership between the state and
the family in relation to the whole enterprise of child care and
upbringing. It is in this context that we must locate this lecture
which discusses existing options for the care and upbringing of a
child who does not have a conventional family to belong to.
 BOX

At the end of this lecture students will:

a. Acquire an understanding of the law relating to child adoption

as an alternative form of child care. Child adoption law consists
of the following aspects covered in this lecture:

i) Meaning of child adoption;

ii) Who may adopt and be adopted;

iii) Adoption by non-Tanzanians;

iv) Consenting to adoption and consenting to be adopted;

v) The best interest of the child principle;

vi) Legal effect of adoption, and

vii) Adoption law and policy;

b. Gain knowledge of formal and informal foster care as an

additional alternative form of child care; and

c. Become familiar with the debates and controversies

surrounding alternative child care especially child adoption.

END OF BOX

14.2 Child Adoption: Meaning

Child adoption is a legal procedure which has the effect of
extinguishing existing legal relationship between a child and his or
her parents while simultaneously creating another legal relationship
between that child and the adoptive parent or parents. According to
section 64 of the LCA, when an adoption order is made, the rights,
duties, obligations and liabilities including those under customary
law of the parents of the child or of the other parent connected with
the child of any nature whatsoever shall cease; and the adoptive
parent of the child shall assume the parental rights, duties,
obligations and liabilities of the child with respect to custody,
maintenance and education as if the child was born to the adoptive
parent in a lawful wedlock and was not the child of any other person.

Before ending this discussion, a comment must be made on a new

form of child adoption introduced by the LCA 2009. Besides the
conventional model of child adoption there is now an additional
model called open adoption. Section 55 (3) of the LCA states that the
term “open adoption” as used in this Act means adoption of a child
by a relative. Although it has the same legal effects, open adoption,
as will be noted below, has less stringent requirements given that it
an adoption by a child’s relatives.196

14.3 Who May Adopt and Be Adopted?

An application for child adoption may be made jointly by a husband

and his wife or by a father or mother of the child either alone or
jointly with his or her spouse. Where the application is by the mother
196
Open adoption as opposed to closed adoption is a form of child adoption where contact is permitted
(and in some

cases encouraged) between the birth family (including the extended family) and the adoptive family subject to the best
interest of the child test. In other words, the decision whether and to what extent contact is to be permitted between the
child and his or her birth family is determined by the extent to which such contact will promote the child’s best interest. In
principle, therefore, the conventional model which is presumed to be a closed form of child adoption, can be open
adoption to the extent that it permits some form of contact between the child and the birth family. In order to understand
the new open adoption model under s 54(3) LCA it is essential to go back to its legislative history which is discussed
elsewhere.
or father alone, the other spouse must consent to the adoption.
Although the law of adoption does not favour single applicants, there
are specific cases where a single applicant is permitted to adopt a
child. For example, a single woman who is not a relative of the child
may adopt a child if she is a citizen of Tanzania (s 56(1)(d). Also a
single male may adopt his son; and with leave of the court, he may
also adopt a child, whether male or female, if special circumstances
exist to warrant the order (s 56(2) LCA). (give an example of
special circumstances)

In the case of an open adoption, an application for an adoption order

may be made by a relative of the child, whether married or single
and whether male or female. An adoption order shall not be made to
authorize more than one person to adopt a child unless the
applicants are husband and wife (s56 (4) LCA). It is a requirement
that an applicant for child adoption must be 25 years old and at least
21 years older than the child. In the case of open adoption the
relative must be at least 25 years old.

It is also provided under s 56(3)(b) that an adoption order shall not

be made for a child unless the child has been continuously in the
care applicant for at least six consecutive months immediately
preceding the date of the application . Section 59(5) further provides
that the child must have been continuously in the care and custody of
the applicant for at least three continuous months immediately
preceding the date of the adoption order. The applicant must also
inform the Commissioner of Social Welfare of his or her intention to
apply for adoption at least three months before the date of the order.
The latter requirement is intended to enable a social welfare officer
or local government authority to prepare a social investigation report
under s 59(2)LCA.

Provisions relating the residency and citizenship of the applicant are

contained in section 56(3) LCA which states that an adoption order
shall not be granted unless the applicant and the child reside in
Tanzania. However, the residence requirement does not apply where
the applicant is a Tanzanian citizen residing abroad and seeking to
adopt a child resident in Tanzania.

14.4 Adoption by Non-Tanzanians

Section 74 LCA now permits non-citizens to adopt a Tanzanian child

if certain conditions are met. They are as follows: i) it must be shown
that the child cannot be placed in a foster home or adoptive family or
be cared for in a manner suitable for the child’s best interest while
the child is in Tanzania, ii) must have resided in Tanzania for at least
three consecutive years; iii) has fostered the child for at least three
months; iv) does not have any criminal record in his country in his
country of origin or any other country; v) has been recommended by
his country’s social welfare officer or any other competent authority
in his country of permanent residence as being suitable to adopt a
child; vi) has satisfied the Tanzania court that his country of origin
would recognize and respect the adoption order vii) the Tanzania
social welfare officer has undertaken a background investigation and
has submitted a report in support of the application; and vii) the
court is of the view that it is in the best interest of the child to make
the adoption order.

The above conditions aim at ensuring that adoption by non-Tanzanian

is a measure of last resort. Hence, only children who cannot find a
home or family in Tanzania may be put up for adoption by non-
citizens. Furthermore, these conditions are also designed to ensure
that the children are in competent and safe hands and are also
protected by the legal system of the adoptive parent. It should be
noted that Tanzania did not have legal provisions for adoption by
non-citizens until 2009 when the LCA was enacted. The
establishment of these safeguards was seen as an important
protection measure especially in the light of debates and
controversies surrounding international child adoption.
14.5 Consenting to Adoption

Before the court makes an adoption order, it must be satisfied that

consent to adoption has been given by all those who are entitled to
consent. There are two categories of persons who must consent. The
first category includes persons who have parental responsibilities
over a child and the second is by the child, the prospective adoptee.
Section 57 LCA states that an adoption order shall only be made with
the consent of the parents or guardian of the child. But the court
may dispense with such consent if it is proved that the person
supposed to consent has neglected or persistently ill treated the
child. The court may also dispense with parental consent if the
person who is to consent cannot be found, is incapable of giving
consent or such consent has been unreasonably withheld.

In addition to the requirement for parental consent the court must be

satisfied that the parent or guardian who consents to the adoption
fully understands that the effect of the adoption order is to deprive
that parent of all rights and obligations over that child (s 59(1)
(a)LCA). It is further stated under s 57(3) LCA that where parental
consent has been given and the child taken into the care of the
applicant, such child shall not be removed from the care of the
applicant except with the permission of the court. In granting such
removal the court shall have regard to the best interest of the child.

The court may also require the consent of any person if it considers
that such person has certain rights or obligations in respect of the
child under an agreement or court order. (possibly targeting
unmarried fathers see s 43 LCA). Furthermore, where a married
person is a sole applicant the court shall require his or her spouse to
consent to the adoption before making the adoption order.

The second category of persons who must consent to the adoption is

the child if he or she has attained at least fourteen years of age (See
s 59(1)(c) LCA). And where the child is less than fourteen years but
is capable of forming an opinion about the matter of his or her
adoption, the court is required to consider the wishes of that child.
Thus the new adoption law recognizes that a child has rights and one
of the rights is to participate in key decisions affecting the child (s 11
LCA). Moreover, as noted below, in making an adoption order the
court must have regard to the best interest of the child (s59(1)(b),
74(2), (3)(a) LCA).

14.6 The Best Interest Principle

The principle of best interest of the child, as noted above in Lecture

11, underpins the entire law of the child. This Lecture however
examines the best interest principle and its application to the law
relating to child adoption. Reference to this principle is made nine
times in various sections relating to child adoption. The references
relate, for example, to the fact that an adoption order shall not be
made unless it is in the best interest of the child (ss 56(1), 59(1)(b),
74(2), 74(3)(b) LCA). Reference to the best interest is also made in
relation to the fact that a parent or guardian who has consented to
the adoption may not change his or her mind and withdraw the child
from the care and custody of the prospective adoptive parent without
permission of the court. And the court’s sanction is to be granted if
it is in the best interest of the child. An adopted child may be
informed of his family origins when he or she attains the age of 14
years but only if it is in that child’s best interest (s61(1)LCA). The
best interest principle is also mentioned in relation to child adoption
by non-citizens (s74(2), 74(3)(a),(b) & (d) LCA).
The UN Convention on the Rights of the Child (CRC) states that
States Parties to the Convention that permit child adoption “shall
ensure that the best interest of the child shall be the paramount
consideration” (Art 21). What appears to be missing in the LCA is the
extent to which the best interest principle rules over or governs child
adoption decisions. The fact that the principle is not given any
weighting implies that best interest is one of the factors the court to
consider. On the other hand, the repeated reference to the principle
when read together with a number of safeguards that have to be
observed in the adoption process, suggests that best interest
principle is at least a primary consideration in line with Article 3 of
the CRC.

The safeguards include the fact that child participation in the

adoption process is given weight suggesting that the views of mature
children are respected.

14.7 Legal Consequences of Adoption

The most important legal consequence of adoption is that, in the first

instance, the law dissolves exiting relationship between the child and
the child’s natural parents. Then the law creates new relationship of
parent and child between the child and the adoptive parents. As
stated by s 64 LCA when an adoption order is made, the rights and
obligations of the parents (including those under customary law) and
those of any other person connected with the child shall cease. Then
the adoptive parent shall assume all the parental rights and
obligations over the adopted child as if that child had been born in
lawful wedlock of the adoptive parents.

Thus the law of adoption plays what in Lecture One was described
as the constitutive function whereby new family relationships are
created by law between individuals who were previously unrelated.
The law of adoption also plays role of legally strengthening existing
relationships. For example, a pre-marital child born to one of the
parties to a marriage may be adopted in order to strengthen the
child’s ties with the natural parent. Where both the natural parent
and his or her spouse (who is not the biological parent of the child)
decide to adopt such a child jointly, then the child will be legally
regarded as the child of the couple as if such child had been born in
wedlock (see ss 55(1)(b), 56(2), 56(4)).

Another example of the law seeking to strengthen existing ties

between the child and the adoptive parent is child adoption by a
relative. The Law of the Child Act 2009 provides for a new category
of child adoption called “open adoption” which it defines as
“adoption of a child by a relative” (s 54(3) LCA. Under s 55(2) an
application to adopt a child may be made by a relative of a child. A
relative is defined as a grandparent, brother, sister, cousin, uncle,
aunt or any or any other member of the extended family. Where child
adoption involves a child who is a relative of the adoptive parent, the
primary objective is to focus legal responsibility more specifically
upon one family of existing relatives. Hence, although the other
relatives of the child continue to relate to the child as if the child had
not been adopted, the adoptive family now are legally responsible for
that child and no one else.

14.8 Adoption Law and Policy

The current law of adoption in Tanzania contains at least three

models, reflecting the history and policy of the law. First, there is the
closed adoption model dating back to 1942 when the first child
adoption law was introduced into British colonial Tanganyika. The
closed adoption model was primarily designed for childless couples
to secure adoptable children. It has been described as the family
centered adoption law. (see BR and UW 1988). It stresses secrecy in
the adoption process; makes no provision for the child to know his or
her family background nor for the child to consent to the adoption.
The second is the child-centered model introduced in 2009 by the
LCA. It seeks to find a family for a needy child. It stresses the best
interest of the child principle as the paramount consideration and
the child’s right to consent to the adoption is recognized. It requires
that the child express an opinion on all decisions affecting him or
her. It permits child adoption by non-citizens if the child cannot be
locally adopted or placed. It makes provisions for a child to know his
or her family background when he or she attains the age of reason
provided such disclosure is in that child’s best interest (s 61 LCA). By
permitting the child to know his or her family of origin, the law has
to a certain extent moved away from closed adoption to a controlled
form of open adoption.

The third model is child adoption by relatives, referred to by the LCA

as “open adoption” (s 54 (3)LCA). This is the form of child adoption
which is fully open in the sense that there is no attempt to hide the
child’s family background. Indeed, it is the child’s family background
that provides the incentive and rationale for the adoption. Once
again, the third model encourages the child’s participation in the
adoption process and is clearly a child-centered. Jurisdiction to make
orders in the case of open adoption is granted to the Resident
Magistrate and District Court. This is intended to facilitate and speed
up the process of adoption for this category of applicants and to cut
down the legal costs involved. In the case of the first two models,
jurisdiction is confined to the High Court. It is hoped that more
relatives will use this model to create an additional legal bond to the
children of their deceased or living relatives.

All the three models are contained in the Law of the Child Act 2009
showing, as noted above, the evolution and policy of the law of
adoption. There are also additional safeguards for the child which
did not exist under the old law. They include provision for interim
adoption orders (s 60LCA) and a more thorough system of evaluation
of applicants whether local or foreign. Indeed, the new law prohibits
child adoption by any person who “practices or is of the civil
relationship or marriage as the case may be” (s58(3)). Although the
latter provision is somewhat vaguely worded, it appears to prohibit
child adoption by persons who are in same sex relationships whether
these are called civil relationships or marriage.

14.9 Foster Care

The term foster parent means a person who is not the parent of a
child but is willing and capable to undertake the care, welfare, and
maintenance of a child (s 52(2) LCA). Any person above the age of
twenty one years may be appointed a foster parent if he or she is of
high moral character and proven integrity (s 52(1) LCA). Where a
child has been committed to an approved residential home or
institution under a care order or supervision order, the social welfare
officer in conjunction with the patron or manager of the residential
home or institution may make a recommendation to the
Commissioner for Social Welfare to place a child with a person who
is willing to be a foster parent (s32 (1) LCA). A person who intends to
foster a child may apply to be so appointed by the Commissioner for
Social Welfare upon the recommendation of a social welfare officer,
patron or manager of an approved residential home (s 32LCA).

The foster parents shall have the same responsibility in respect of

the child’s maintenance as if he or she were the parent of the child
and shall be under a duty to ensure the development of the foster
child particularly the child’s health and education. The foster parent
is required to maintain contact with the child’s family to inform them
of the child’s progress and to work closely with the social welfare
officer so that the child may be reunited with his or her original
family.

It is clear from the above provisions that a foster parent offers a

child a temporary family to belong to when the child is in need of
care and protection. Section 16 LCA enumerates 17 grounds when
care and protection orders may be issued. Students must note,
however, that there is a link between foster care, which is short
term, and child adoption which is intended to be permanent. It is
provided, for example, in section 24 LCA that a child under a care
order or supervision order whose parent, guardian or relative does
not show an interest in the welfare of the child within a period
stipulated by the court, may be put up for adoption, either with
foster parents or place a child in the care of the patron of an
approved residential home.

14.10 Informal Foster Care

The LCA provides that where a child’s biological parents are

deceased, parental responsibility may be passed on to a relative of
either parent or custodian by way of a court or any traditional
arrangement (s9(4)LCA). Although the problem of children without a
family to belong to is increasing in Tanzania, as in other parts of the
third-world, it is not in the best interest of a child for the law to
sanction, and thus indirectly encourage, the passing on of parental
responsibility over a child to a relative by way of traditional
arrangement. The reason against such a practice is that such
arrangements are informal and do not have the force of law. With
such arrangements the child remains unprotected throughout his or
her childhood and stands to suffer further losses if the relative
entrusted with his or her care dies intestate or leaves nothing for
that child upon his death. Research in parts of Tanzania has shown
that the ethical foundation upon which kinsmen felt obliged to look
after the children of their deceased relatives has greatly weakened
(Rwezaura 2002 Value of Child).

It is argued that child adoption by relatives under the system of open

adoption is the best way to deal with the care of children left behind
by deceased relatives. I am aware that there are a large number of
children being cared for by relatives and their best interests are well
protected. But the point I am making is that a person looking after a
relative’s child does not have parental responsibilities under the LCA
but only under “traditional arrangement”. And, as noted above, the
traditional ethic has lost its force and for that reason the law must
enter to protect the vulnerable children. The best interest of the
child is too important to be left hanging on the thin thread of
tradition.

14.11 Controversial Aspects of Alternative Care

It is widely agreed that the family is the best place for the growth
and development of the child. Basing on this premise the law has
developed a system of alternative care for children without a family
to belong to. As noted above, the child adoption model has proved to
be the most popular form of alternative care especially in western
societies. But the popularity of child adoption since the end of World
War II, together with the falling birthrates in the west, has created a
demand for inter-country adoption. There are cultural and economic
differences between western societies and non-western societies
where prospective babies are sought. The idea of an adoptive parent
taking a child out of the country has generated apprehension
regarding a number of matters. Questions whether enough is known
about the applicants, whether the country to which the child is taken
recognizes adoption and will accord the child adequate protection.
There is also suspicion connected with child abduction for sale and
trafficking. The debate within the child rights community and others
over these issues has remained unresolved. In 1995 an international
treaty on the Protection of Children and Co-operation in Respect of
Inter-country Adoption came into force. Its main objective is to
establish safeguards and to ensure that inter-country adoptions take
place in the best interest of the child and are consistent with the
child’s fundamental human rights. The treaty recognizes that inter-
country should only apply to a child who cannot find suitable family
in his or her country of origin.
Tanzania has only recently permitted adoption by non-citizens under
s 74 LCA. As noted above, a child may be adopted by a non-citizen
only if that child cannot be placed in a foster or adoptive family or be
cared for in a manner suitable for the child’s best interest while the
child is in Tanzania. Moreover, to qualify for adoption, the non-citizen
applicant must have resided in Tanzania for at least three
consecutive years and must have fostered the child for at least three
months under the supervision of a social welfare officer. For some,
residence for three consecutive years is viewed as too long. For
others, the time is necessary for the applicants to acquaint
themselves with the country and its people and for the social welfare
department to evaluate the applicant effectively.

15.0 THE STATE AND FAMILY [LECTURE FIFTEEN]

15.1 Introduction

In this concluding lecture we evaluate the relationship between the

state and family. We do this by conceptualising the state and family
as partners but also the state as a watchdog, ready to intervene in
the family to protect weaker family members. We consider the extent
to which the state meets its obligations to the family. The question of
what is meant by family is considered especially in the light of
changing family forms and family relationships. The lecture examines
the growth of non-conventional family forms and family relationships.
It wonders whether and to what extent our family law has coped well
with these transformations. The question of changing family
relationships is considered in terms of the development in science
and technology and its impact on family law.
BOX

At the end of this lecture students will:

a. Gain a deeper understanding of the functions of family law;

b. Appreciate the partnership between the State and the family;

c. Grasp the dual role of the State as watchdog and as supporter of

the family; and

d. Gain a deeper knowledge of the changing nature of the family and

the rise of new family forms and family relationships.

END OF BOX

15.2 Functions of Family law: Reflections

We began in this course with an analysis of the four functions of

family law noting that the idea of conceptualizing family law in terms
of what it does, rather than merely what it is, enables the student to
think more clearly about the subject and to develop an analytical
framework that seeks to evaluate the extent to which the law does or
fails to perform those functions. We do this with the understanding
that law does not work alone. The law works in partnership with
other non-state bodies which at times may hinder or enable it to
perform its functions. We return to the four functions of family law
with the benefit of hindsight to consider briefly whether the
analytical framework suggested at the beginning of the course has
enabled us to capture the essence of family law as a subject of study.

We ask ourselves the extent to which family law plays a constitutive

role and whether it shares this function with religious bodies and
non-state institutions including customary law. Looking at the
constitutive function, studies have shown that a large number of
marriages are contracted under customary law and many are not
registered with the State. Similarly, the law of adoption is also rarely
utilized by Tanzanians. The number of children being looked after by
relatives is far greater than those who have been formally adopted.
Indeed, as noted above, even the LCA has sanctioned the practice of
taking care of children in accordance with “any traditional
arrangement” s 9(4) LCA. This means the law recognizes the
continuation of the old child care practices. The fact that the 1942
law of child adoption had never been popular with many African
communities is widely known (Rwezaura & Wanitzek 1988). Hence,
the introduction of open adoption by the LCA seeks to encourage
Tanzanian relatives to create a formal relationship between them and
the children of their relatives. The idea of having both open adoption
and traditional forms of child care may appear flexible and
convenient but it seems to defeat the whole object of state regulation
of alternative family care and child protection.

Turning to the regulatory role of family law we should note that

extra-judicial divorces are common in Tanzania. Parties see the need
to approach state courts when a former husband wishes to claim
refund of marriage payment (bridewealth) or to claim children taken
away by the mother or those born during the couple’s separation. In
parts of Tanzania where marriage does not involve substantial
property transfers, there are many couples living apart in the false
belief that they are legally divorced. Indeed, some women do
“remarry” on the assumption they are free to do so when in law they
are still married to their “former” husbands. In this context the law
fails to oversee the termination of marriage and to effectively
regulate post-divorce issues such as division of matrimonial assets
and allocation of custody of children. Needless to add, the provisions
of the law relating to judicial separation are not utilized by such
couples.

The protective role of the law is also weakened by parties who do not
seek the assistance of state courts when they face matrimonial
disputes. Research has revealed several factors that deter married
couples, especially the wives, from using state courts to resolve their
family disputes (Rwezaura 1999 UCT).These include lack of
knowledge of available remedies; the high cost of litigation; social
pressure against taking family disputes into the public arena. Thus
no matter how well drafted a piece of legislation may be, it will not
perform its job if parties cannot pursue their remedies in appropriate
state organs.

It needs to be pointed out also that there are significant gaps in the
protective framework of family law. For example, we noted in
Lecture Eight that despite the high rates of domestic violence,
Tanzania does not have a special legislation on domestic violence. In
many jurisdictions, domestic violence is viewed as a human rights
issue because of its gendered nature. Again we noted that the LMA
lacks provisions governing the property rights of co-wives at the time
of divorce. 197The protective role of family law is also weak in relation
to children of the family. As noted in Lecture Eleven upon
separation or divorce the court has power to order child custody and
maintenance. But very few, usually fathers, ever pay child support. 198
This has sometimes discouraged mothers from seeking custody of
their minor children because they do not want their children to
starve or fail to complete their education due to financial difficulties.
Unlike other jurisdictions, Tanzania does not have special mechanism
for the enforcement of child support obligations.199

Tanzania also faces the problem of child marriages. Although section

13 of LMA provides a minimum age for marriage at 18 years for
males, the minimum age for girls is set at 15 years. In a sense the
LMA unknowingly encourages child marriages thus violating several
human rights of the child. The lower age of marriage is favoured by
197
See Bart Rwezaura, ‘Tanzania: Building a New Family Law out of a plural legal system’ University of Louisville Journal of
Family Law (1995) 523, 530. See also Rachel Howland & Ashley Koenen, Divorce and Polygamy in Tanzania (Social Justice
Paper 15 http: ecommons. Iuce.edu/social_justice 15)

198
As noted by Sisya J in Ahmed Ismail v Juma Rajab 1985 TLR 204 (HC), “The tendency among young men of today to
ignore their offspring living with their mothers, and away from themselves, is a fact too notorious to escape judicial notice
of this Court.”

199
See for example the Child Support Act 1991 (England and Wales) and subsequent amendments.
many parents, especially in the rural areas where it is customary for
girls to marry at a young age. This is why female children are
withdrawn from school to get married to men chosen by their
parents or guardians (see Elizabeth Saya, Haki za Watoto na Utata
wa Sheria ya Ndoa 1971, Nipashe, 11 March 2014 p 8).200

15.3 Family and the State as Partners

The Universal Declaration of Human Rights (UDHR, 1948) states

that the family is the natural and fundamental group unit of society
and is entitled to protection by society and the State (Art 16). The
International Covenant on Civil and Political Rights (Art 23 ICCPR,
1966) makes the same point. Tanzania is a party to the ICCPR and
subscribes to the values contained in the UDHR (Art 9(f) URT Const
1997).201 Hence, the protection of the family is an international treaty
obligation which Tanzania is required to honour. The question is what
makes a family so important as to deserve protection? This is
primarily because the family performs the task of bearing and
nurturing the next generation. This function is so important to the
state such that without the family the state would be expected to
bring up all its children. But as we all recognise the state is ill-fitted
to perform these important tasks alone and hence it has to form a
partnership with the family.

The vision of the Tanzania Child Development Policy (CDP 2 nd Ed,

2008) is to have a nation of healthy, educated and well behaved
children who have the capacity to play an effective role in nation
building. It spells out the responsibilities of the child, the parents,
the community, the government and its institutions, in the planning,
co-ordinating and implementation of all child related programmes
200
The Ministry of Community Development Gender and Children recommended (in CDP 2nd Ed 2008) that the Law of
Marriage Act be amended to raise the minimum age of marriage for girls to 18 years but this recommendation has not
been acted upon (Sera ya Maendeeo ya Mtoto Tanzania 2nd Ed para 49 pp 25-26). Indeed the opportunity to amend the
law was lost ten years later in 2009 when the Law of the Child Act was enacted clearly providing under s 4 that “ a person
below the age of eighteen years shall be known as a child.”

201
See also CRC Art 19 and 24.
(para 41(vii) p 19). The CDP further stresses that both parents have
joint responsibility in bringing up and ensuring the growth and
development of their children.

The State has specific obligations towards the family and these fall
primarily in the sphere of social welfare, family health, education and
economic support to the family. For example, in respect of formal
education, Tanzania has made primary school education free and
compulsory. The state subsidises secondary school education and
vocational training. No doubt many of these functions fall outside the
scope of family law. (Do mention Mkukuta and Tanzania Education
policy?) It is clear from the content of the CDP that it anticipates,
and is indeed built on the assumption, that the state and the family
will work in partnership to achieve the vision stated above

It must be stressed however, that when we speak of family we do not

necessarily mean the conventional family of husband, wife (or wives)
and children. We have to bear in mind the fact that the family is
changing and new family forms are emerging. Moreover, we have to
recognise that there are children who have no families to belong to.
In such cases the state has to take the place of parents to these
children. Within the context of alternative family care, the state is
expected to oversee the process and to ensure that these children
are assigned to suitable families. Thus in cases where a child has no
family to act as the ultimate parent, i.e. parens patriae.

The provisions of Part III of the LCA are intended to ensure that
children who are in need of care are given protection by the State.
The definition of a child in need of care is found in s 16 LCA. It
includes, a child who is an orphan or is abandoned, has been
neglected or ill-treated parents, is destitute or under the care of a
destitute parent, is wandering, begging, or having no home or settled
place to live. Also a child exposed to immoral or criminal conduct or
influence including prostitution or being a victim of human
trafficking falls in the above category. Sadly, the gap between section
16 LCA and actual practice is very wide indeed. We have in our cities
a large population of children living on the streets or begging
alongside their destitute parents. Children in need of care and
protection are supposed to receive various forms of assistance from
the State so that they may lead a decent and productive life.
Unfortunately, many of these children do not get the expected
assistance from the state and this poses a huge challenge, not only
for the State but the entire nation.

15.4 State as Watchdog and Family Protector

Although the State and family are correctly viewed as partners in the
care and upbringing of children, the State also plays the role of a
watchdog and protector of family members during times of crisis. In
its role as watchdog, the state has power and responsibility, for
example, to intervene in the family to ensure that children are not
abused by parents. For example, s 95 LCA states that it shall be the
duty any member of the community who has evidence or information
that a child’s rights are being infringed to report this to a
local .government authority of the area. Upon such a report being
made, the social welfare officer has power to summon the child’s
parent to discuss the matter and to make appropriate decisions.
Where the parent refuses to comply with the decision of the Social
Welfare Officer, the matter shall be referred to a court of law which
shall hear and adjudicate upon the matter. In any case according to s
95 (5) LCA, any person who infringes the rights of the child as
provided under sections 95(1) and 14 LCA commits a criminal
offence and is liable upon conviction to serious punishment.

In cases of domestic violence, the State intervenes to stop spouses

from hurting one another. This may be done by the use of criminal
law, but also the LMA. We have noted in Lecture Eight the
shortcomings of our law against domestic violence,(as gender based
violence), has become a human rights issue. In cases of separation or
divorce, the state has to determine whether or not the parties’
marriage has broken down irreparably and to terminate it. Before
terminating the marriage, the state attempts to mediate, and where
mediation fails, the marriage has to be dissolved. In this connection
the state oversees the entire process of division of assets and
custody of minor children. These post-divorce matters are often
contentious and if not properly handled can lead to acrimony and
bitterness between the couple. Such bitterness has the effect of
weakening the couple’s ability to co-operate in the upbringing of
their minor children. Thus the state has to ensure there is fairness in
the division of matrimonial assets and to protect the weaker family
members. It has also to decide issues of child custody bearing in
mind the best interest of the child as a paramount consideration.

15.5 Changing Family Forms and Family Relationships

Before embarking on this discussion we need to consider the

meaning of the terms family and family forms. The conventional term
‘family’ when qualified by the word ‘nuclear’ refers to a small unit
consisting of a man and his wife and their minor children. And when
the term ‘family’ is qualified by the words ‘extended’ it includes a
larger group of individuals consisting of relatives of different
generations including, not only husband, wife (or co-wives) and
children (minors and adults) but also grandparents, cousins,
nephews and their children. Thus the common understanding of the
term family among African people is that it includes members who
share a common descent including their spouses.202

The term family form on the other hand relates to the structure and
composition of the family. For example, we are familiar with the
extended family and the nuclear family as types of family forms. But
202
See Armstrong A et al “Uncovering Reality: Excavating Women’s Rights in the African Family (1993) 7 International
Journal of Law, Policy and the Family 314, at
there are also single parent families, arising from divorce, separation
or death of one spouse. There are also child headed families and
families headed by relatives such as grandparents. There are families
where the couple is not legally married but simply cohabiting as in
de facto unions. All these non-conventional family forms have
implications for family law. Hence, students should be aware of their
existence and the extent to which they operate within or outside the
framework of family law. Moreover, students should recall our
discussion regarding the effect of social change on family law. Here
again we note that the rise of some of these family forms is to a large
extent connected with economic and social transformation. It is also
a result of demographic changes and the effect of HIV/AIDS which
has caused unprecedented loss of lives and left many children
without parents to care for them. Students need to evaluate the
extent to which our family law has coped well with these
transformations.

Finally, the development of science and technology has also

significantly impacted on family law and thus given rise to changes in
the relationship between family members. For example, the legal
provision regarding proof of parentage by DNA testing is a recent
thing in Tanzania. Its implications are yet to be fully appreciated. For
example, s36 (1)LCA provides for compulsory medical examination of
a man who is alleged to be the biological father of a child. And where
a court makes an order for medical tests and the alleged father
refuses to comply, such refusal is an offence punishable by fine or
imprisonment. It is arguable that this provision would be challenged
in due course as a human rights violation.203

Another development in science and technology which has not been

legally provided for in our law is the legal status of children born as a
result of scientifically assisted reproduction. There are four known
forms of scientifically assisted conception The first is artificial
203
See Probert 2003 at p 195 and Re (A Minor) (Paternity: Refusal of Blood Test) [1994]2 FLR 463 and the Family Law Act s
21(1)
insemination by donor (AID); second, is in vitro fertilization
(including embryo transfer) using a donor’s egg or sperm; and third,
is surrogacy where a woman other than a wife agrees to have
another couple’s embryo implanted into her womb to be carried to
full term with the intention of handing over the baby to the couple. In
all the three forms of scientifically assisted birth, there are questions
of parentage which Tanzania law does not address. This is unlike
other jurisdictions [African country?] where the law has provided
answers to these questions. Such silence is not in the child’s best
interests given that scientifically assisted birth takes place in
Tanzania and there are children born as a result of such procedure.

Perhaps more controversial is the question of legal recognition of

same sex partnerships and whether family forms arising from such
relationships would be legally recognized in Tanzania in the near
future. Basing on available evidence there are no indications that
same-sex partnerships or family forms would gain legal recognition
any time soon.204

15.6 Summary and Conclusions

This final Lecture has tried to wrap up the entire module using four
major themes. Each of the themes seeks to draw together its various
parts while also underlining the connections in the topics covered. It
is hoped that the approach will enable students to see the module as
a whole and therefore to enhance their understanding of this course.
The first theme relates to the functions of family law. As noted in
Lecture One, by asking ourselves what family law does, we are in
good position not only to understand family law itself but also to
evaluate its effectiveness in performing what it purports to do. Some
of the weaknesses of Tanzania family law have been noted in the final
204
For an overview of the global gay rights movement, see B Rwezaura, “To be or Not to be :Recognition of same-sex
Partnerships I Hong Kong” Hong Kong Law Journal Vol 34, No 3, 557, (2004).
lecture. However, room has also been left open for further evaluation
of its effectiveness and students are encouraged to maintain a
culture of assessment and evaluation.

The second theme is the operational relationship between the State

and the Family. This lecture has put forward an argument that the
state and family are partners. Indeed the work of the state and that
of the family are inter-linked. The state enacts laws to promote
family welfare and to regulate family relations. It enacts minimum
standards for child care and upbringing, including compulsory
vaccination and school attendance. It builds schools and hospitals
including day-care centers and kindergartens. The state sets up
entire ministries, departments and directorates and district councils
dedicated to the welfare of families. The family, for its part, needs to
work together with the state in order to achieve the various
developmental goals set for the family.

The third theme is the role of the State as watchdog and protector of
weaker family members. Whereas it is widely recognized that the
family is autonomous and that state intervention should be slow and
measured, it is nonetheless unavoidable for the state not to
intervene. The state intervenes primarily to protect the weaker
family members from various forms of harm. The most common
forms of intervention, as noted above, relates to prevention of abuse
of wives and children. As we have noted, in the context of Tanzania
family law the state’s role as protector of weaker family members fall
below the required standards.

The fourth and final theme concerns the changing family forms and
family relationships and the extent to which the law is able to
maintain regulatory and leadership role. Here again, as noted in the
final lecture, it seems the speed of change in our societies is far
greater than the law’s capacity to lead by directing such change and
by regulating social relations. The result is that a number of areas of
social life are left out of the law’s empire, so to speak. For example,
the absence of the rules relating to the status of children born as a
result of medically assisted conception does not mean that such
medical practice will cease. It is to be hoped that rather than lagging
behind social change the law will lead the way and show leadership
in various spheres of family law.

THE END
In Grentina Mwakyami205 the husband mortgaged the
matrimonial home to the CRDB Bank as guarantor of an
overdraft in favour of a company. He did not inform nor seek
his wife’s consent. When the company failed to clear the
overdraft, the Bank obtained a court decree and moved to sell
the house constituting the matrimonial home. The wife, upon
learning of the imminent sale lodged an objection against the
sale on the ground that she was a joint owner and

205
Mrs Grentina Kabisa Mwakyami v CRDB Bank Ltd and 4 Orthers (DSM) High Court Commercial Case No 51 of 2000 per
Kalegeya J