LW 1205 FAMILY LAW

2019/2020
TOPIC ONE: INTRODUCTION TO FAMILY
LAW
 Meaning of the term family
 The term Family is of a limited legal significant. Lowe
& Douglas summarises the meaning of family to imply a
basic social unit constituted by at least two people,
whose relationship may fall into one of three categories;
 one, a relationship of husband and wife or two persons
living together in a manner similar to spouses.
CONT.
 Two, it may be constituted by a parent living with one or
more children.
 Three, Brothers and sisters or other persons related by
blood or marriage (affinity) may be regarded as forming
a family.
 There are cases which tries to illustrate on the meaning
of the term family.
 Beginning with the housing case of Sefton Holdings and
Cairms [1988] 2 FLR 109, per Lloyd LJ, and ending
with the more recent Fitzpatrick v Sterling Housing
Association Ltd [1999] 3 WLR 115 (HL); [1998] 1 FLR
6 (CA).
CONT.
 The former was a tenancy succession case in which it
was necessary to decide whether two unrelated
unmarried women (not apparently in any form of lesbian
relationship) were ‘a family’ so that the survivor could
succeed to the deceased’s statutory tenancy.
 The latter was an overt same sex couple case in which in
the Court of Appeal Ward LJ, dissenting, wanted to find
that the cohabitants were either the equivalent of persons
living together as husband and wife or alternatively were
simply ‘a family
CONT.
 a view which was upheld in the House of Lords and has
subsequently been developed in the case of Mendoza v
Gheidon [2002] EWCA Civ 1533 to accept same sex
couples as the equivalent of husband and wife.
 Classification of family

 Family may be classified under different types.

 o Nuclear family; this may consists of a father, mother

and children.
 o Extended family; this may consist of a father, mother,
children and other relatives.
CONT.
 o Kinship; this consist of larger family groups related by
blood and marriage.
o Households; a group of people sharing
accommodation.
 Family as an Institution:

 In one social context a family may refer to a man and a

woman who share a common household.
 In another, it is defined as all persons who share blood
relations. In others, it is defined as all persons who share
a household.
CONT.
 In others still it means all the members of a household,
including parents and children with perhaps other
relations, lodgers and even servants.
 Legally, the term family is a restricted concept. There are
certain formal pre-requisites that have to be met and the
main one is a marriage ceremony.
 In law a family is created when families enter into a
legally recognised marriage.
 The law also restricts the right to terminate that legal
status.
CONT.
 The family is registered because it serves a number of
purposes in society.
 1. It is the basic component of a society organisation;
Article 16 of the Universal Declaration of Human
Rights.
 2. It is the basic economic unit of society that is most
productive activities take place within the family set up .
 3. The family setup provides for a framework for the
parties to have satisfactory sexual expression.
 4. It guarantees perpetuation of society through the
receiving of offspring.
CONT.
 5. It provides a framework for companionship between
the members of that family.
 Meaning of the term family law

 Family law is the body of law that concerns persons by

virtue of their status as a family member or as an
intending family member: a spouse, parent, child, legal
guardian or fiancé.
 For example, a law that prohibits spousal abuse is a
family law because it specifically prohibits persons from
harming someone with whom he or she has a marital
relationship.
CONT.
 There are other definitions of family law. Some have
defined as follows
 Hamilton 2006 define family law as a set of laws
“whose purpose is to regulate relationships among
family members” .
 Statsky 2015 says that family law “defines relationships,
rights and duties in the formation, ongoing existence,
and dissolution of marriage and other family units”.
CONT.
 Family law deals with the law regulating the legal
relationship between spouses (i.e. husband and wife) the
legal relationship between a guardian or curator and the
person who is subject to guardianship or curatorship.
 Family law is concerned with the law regulating the
affairs of the family and family property.
 THE OBJECTS OF FAMILY LAW

 1. It seeks to define status between the parties in that

family i.e. it defines what rights a member of the family
can claim over the other or over the other’s property.
Altering the status of parties in the family.
CONT.
 2. A remedial role; that is it serves to protect certain
weaker members of that family e.g. children.
 On termination of a family relationship there are certain
members who may need protection especially economic
protection. Note. The trend now is that not all family
relationships are created by marriage ceremonies such as
cohabitation, single parents. The law has developed to
recognise some of these relationships.
CONT.
 Marriage May be Regarded as Forming a Family.
 Marriage May be Regarded as Forming a Family.

 Marriage Definition:

 Marriage is defined under s 9(1) of the Law of marriage

Act Cap 20 of 1971 (R.E 2002) LMA as a voluntary
union between a man and a woman/ women intended to
last for their joint lives.
 In the landmark case of Hyde v. Hyde (1866) L.R 1
P&D 130,133 the court by Lord Penzance, was of the
view that “...Marriage as understood in Christian dome
may be defined as the voluntary union for life, of one
man and one woman to the exclusion of others’’
CONT

 Under these definitions three elements can be adduced:

 First, Marriage must be voluntary.

 Second, It must be intended to last for life.

 Third, it must be heterosexual i.e. between different sex

(man and woman) Cobert v. Cobert (1970) 2 All E.R.
33 marriage is between a man and a woman. Sex change
will not entitle a man who was biologically born so to be
a woman for the purpose of marriage Act.
CONT.

 Kinds of Marriages
 Under s. 10 the LMA marriage is of two kinds;

 i. Monogamous marriages or are intended to be

monogamous; these are those marriages between one man
and one woman. These are common and compulsory in
marriages celebrated under Christian forms.
 ii. Polygamous marriages or are potentially polygamous;
these are marriages between one man and more than one
woman.
 iii. Polyandry; this is where a woman is married to more than
one man. In many jurisdictions polyandry is prohibited by
law. It is an offence that is created by s. 152 of LMA.
CONT.
 There are forms under which marriages may be
celebrated these include the following;
 Christian Marriages; these are marriages that are
celebrated in a church in the manner recognised by the
Christian faith or by any denomination or sect of that
faith. This is provided under s. 25(3) (b) of LMA.
 Christian marriages are registrable under s. 43(2) of
LMA, the marriages are monogamous and are intended
to last for the joint lives of the couple i.e. no divorce is
allowed.
CONT.
 They can never be converted to polygamous marriage as
long as the parties still profess Christianity s. 11(5) LMA
 According to s. 30 of LMA a Christian marriage may be
celebrated according to Christian rites in any place
habitually used as a place of public worship or a place of
gathering by the followers of Christianity, by a minister
who has been licensed in that behalf by the Registrar-
General.
CONT.
 Islamic Marriages; these are marriages that are
contracted in the manner recognised by Islam or by any
school or sect of that faith s. 25(3) (a) LMA.
 They are registrable under s. 43(3) of LMA. These are
marriages contracted between a man and a woman who
profess Islam or Mohamedan law.
 It is intended to last for the joint lives of parties but
divorce is recognised.
CONT.
 Muta marriage is not recognised under the LMA, these
are marriages for specific time.
 Marriage may be conducted by proxy, the wife need not
be present during the marriage celebration, usually the
brother of the bride will be present and the sheikh or
Kadhi will ask the prospective husband if he agrees to
marry the wife for a specified bride price. This is
recognised by s. 38(2) of the LMA.
CONT.
 The bride price is the property of the woman and parents
have no saying on it.
 Islamic marriage recognise polygamy however it limits
the number of wives to only four. A minister who is
licenced according to s. 30 of LMA may celebrate this
type of marriage.
 See Adam Mtondo v. Likuna Omari (1968) HCD 289
whereby the Appellant orally pronounced a divorce from
his wife. Somewhat less than a month later, presumably
in a period of “tuhr”, he orally revoked the divorce.
CONT.
 The Primary Court held that the divorce was complete
and, on appeal, the District court affirmed acting on the
advice of an assessor that the revocation was of no effect
because the dowry had not been fully paid at that time.
Neither court specified the school of Muslim law to
which the parties adhered.
 Held; (1)Under the more common interpretations,
divorce is affected only by three pronouncements and
was not effected here, where only one pronouncement
was given.
CONT.
 Trial courts should specify the school of Muslim law
which is applicable; in the absence of any indication to
the contrary, it should be presumed that the more
common interpretation applies.
 (2) Even if the single pronouncement was effective, the
fact that the dowry had not been fully paid did not affect
the validity of the revocation and the oral divorce was
rescinded. Appeal allowed and respondent declared to be
still the lawful wife of appellant.
CONT.
 Hindu Marriages, these are marriages that are
contracted between parties that are of Hindu beliefs. The
provisions that apply to Christianity and Islamic
marriages also apply to these types of marriages.
 Customary Marriages; these are the kind of marriages
contracted between parties belonging to a community or
to communities which follow customary law.
 This type of marriage allows polygamy, parties must
state during the first marriage whether the marriage is
polygamous or potential polygamous. These marriages
are registrable under s. 43(5) of LMA.
CONT.
 Read the case of Masero Mwita v. Rioba Masero,
(1969) HCD 199
 Marriages under customary form in most African states
were used as a means to transfer property form one
family to another through bride price.
 Civil marriages, these are the kind of marriages that are
contracted in civil forms. They are supervised by either
District Commissioner’s office or District Registrar.
 They can be monogamous, polygamous or potential
polygamous.
CONT.
 If parties did not specify during the marriage contract,
whether the marriage is polygamous or not, it will be
presumed that the marriage is polygamous until it is
rebutted. This is provided under s. 11 of LMA.
 Foreign Marriages; these falls under two categories:
One, those contracted in Tanzanian embassies abroad s.
34&37 LMA.
 Two, those contracted according to foreign laws s. 36
LMA. Where there is dispute between the parties to
these marriages, the lex domicile will apply.
CONT.
 i.e. the question of jurisdiction of court is bound to the
domicile of the parties, in other words the applicable will
be that of the place the parties reside.
 Residence of Parties after Marriage

 Uxilogical; this is when a wife moves to her husband’s

family. It is common in patrilineal societies.
 Matrilogical/Virilogical; this is when a husband moves
to a wife’s family. It is practices in matrilineal societies.
Eg Zaramo, Makua, Mwera and Luguru
CONT.
 Other Forms of Marriages (these were common under
pre capitalist societies)
 Sororate marriages; this happens when two sisters are
married to the same man. This may be as a reward to a son
in law for a specific reason e.g. when the sister is barren.
 Levirate Marriage; this is wife inheritance. A brother
takes a widow of the deceased brother. Wife inheritance
under rule 64 of GN 279 of 1963 is pointed out that, ‘’if
the widow agrees to live as a wife of one of her deceased
husband’s relatives and consent to has been obtained from
the family council she becomes a legal wife of this
relative’’.
CONT.
 Ghost Marriages; this is atypical case where a man dies
before he reaches a marriage age or puberty or before
attaining a wife, one of his brothers marries in the name
of the deceased brother, the issues of the marriage will
belong to the deceased brother and will bear his name.
 Barren Woman; this is a traditional type of marriage. It
happens when a woman who does not bare any children
(barren).
 Children are the sign of prosperity especially for a
woman who is rich. So a woman marries another woman
in order to get children who are going to be hers (barren
woman’s).
CONT.
 This may also happen to a woman who gets only female
issues so she may get married to get male issues. This is
different from lesbianism which is unnatural sexual
practices between women.
 This is very common in Kurya societies (in Tanzania),
ibo(Nigeria) and Simbiti.
 This is what is known as Nyumba Intobhu in Mara
Tanzania. When the barren woman marries she builds a
house in her compound, from then she takes steps to get
married, this will be by starting to look for a young
woman who can bare children for her.
CONT.
 Then she is going to look for a suitable partner for that
young woman. The young girl has no say in choice of a
partner. The barren woman will consider the young
woman as her daughter in law.
 The issues will have a status of grandchildren. If a child
is born and he is a boy he will get a bull (Nzagamba) and
if it is a girl then she will get a calf. The only and
important evidence that there exist a marriage is the
marriage certificate which is issued by the registrar of
marriage office.
CONT.
 Read the case of Ahmed Ismail v. Juma Rajabu [1985]
TLR 204 the case is about the requirement of registering
customary marriages

 Marriage Practices and Procedures

 A Contract To Marry (Engagement)

 Every marriage is preceded by a contract to marry

though not all marriages start from this step. This is an
agreement where parties in explicit words undertake a
promise to get married in a near future.
CONT.
 This is different from friendship between a man and a
woman where there is no explicit of the intention to get
married.
 There must be an unconditional agreement to marry.

 The proof that engagement took place includes;

 one, the presence of evidence in writing.

 Two, the presence of a gift of an engagement ring from

one party of the agreement to the other in contemplation
of their marriage.
CONT.
 Three; Evidence of a ceremony entered by the parties in
the presence of one or more other persons assembled for
the purpose of witnessing the ceremony.
 At common law such agreements amounted to contracts
provided that there was an intention to enter into legal
relationship.
 The position was changed by s. 1 of the Law Reform
(Miscellaneous Provisions) Act 1970 which provided
that no agreement to marry shall take effect as a legally
enforceable contract and that no action shall lie in this
country for breach of such agreement wherever it was
made.
CONT.
 The breach of contract to marry occurs when one of the
parties does not implement what was intended (the
marriage).
 The breach may occur even if the date was not fixed and
it was just said that it will happen in the near future it
will be implied that means soon.
 There are legal consequences when a contract to marry is
breached. A man may have done something geared to
that intended objectives and they woman family may
have also incurred expenses in preparation for the
intended wedding.
CONT.
 So in case a promise to marry is broken the victim party
is able to claim for those expenses. This is provided by s.
69(1) LMA.
 The section specifies that no action will lie against a
party who was below eighteen when the promise was
made.
  However, this provision seems to contravene another
section of the same Act. By virtue of section 13 of the
Law of Marriage Act, the minimum age for a female to
contract a marriage is fifteen years.
CONT.
 Furthermore, the court can give consent to a marriage
where one of the parties is even below the prescribed
age; provided the court is satisfied that there are special
circumstances, which make the same marriage desirable.
S.13(2) LMA
 The damages paid will be to the actual loss suffered and
no excess and no specific performance will be ordered.
 S. 70 of LMA specifies that the action for breach of
promise must be brought within one year after the date
of the breach.
CONT.
 S. 71 of LMA a suit may be brought for the return of gift
made in contemplation of marriage that has not been
contracted; this is after the court is satisfied that this gift
was given with the intention on the part of the giver that
it should be conditional on the marriage being
contracted.
 In Mohameid Seminyu v. Sofia Msangi 1975)
Unreported the plaintiff was awarded T.shs 40,000/- as
damages for breach of promise to marry, the High Court
reduced the damages to Tshs. 20,000/-.
CONT.
 The plaintiff claimed among other things; loss of
employment due to pregnancy, injured feelings and
diminished prospects for marriage.
CONT.
 Promise to marry may be oral, written or by conduct.
Parties must actually know that they are entering into the
contract to marry.
 The doctrine of Estoppel does not apply in these
contracts. There are available defences for breach of
contract to marry that are, Misrepresentation, Fraud,
Mistake, and Duress.
CONT.
 Bride price
 Bride price is the term used to refer to the process
through which the family of man makes payments in the
form of cash, cattle or other goods to the family of the
woman whom he intends to marry. Rule 1 of GN
279/1963
 Section 2 of Law of Marriage Act defines dowry to mean
any payment of stock, goods, money or other property
made or promised in consideration of an intended
marriage.
CONT.
 This practice is common in most patrilineal societies in
Tanzania. Even some matrilineal societies which did not
have the practice originally have now adopted it.
 While there is agreement on the fact that the man has to
pay something to the woman’s family, differences arise
as to the interpretation and significance to be given to the
payment.
 However a bride price is no longer essential element for
a marriage to be valid, this is provided under rule 5 of
GN 279/63 and section 41(a) of Law of Marriage Act of
1971.
CONT
 Also in the case of Mwapombe vs Lazaro Mkwaya.
(1976) TLR 60
 It was held that nonpayment of bride price is not defect
that would go to the root of marriage contract.
 That is to say nonpayment of bride price has no legal
effect to the validity of marriage.
 However it has been debated that the historical
symbolism of bride price as a token of appreciation on
the part of the groom’s family has shifted to take the
form of a commercial transaction.
CONT.
 This basically means that the woman is passed in
marriage from under the authority of her father to that of
her husband.
 The husband’s authority therefore is not challenged and
it is up to him to make all important family decisions.
 In such instances, marriage brings with it fundamental
changes which affect the status of the parties to it.
CONT.
 The nature of the rights created will depend on the sex of
each party and it is disadvantageous to the women, as her
role is subservient to that of the man.
 The Rationale behind Bride Price

 i. Token of appreciation

 Dowry is the recognition of the struggle the bride’s

family has gone through in raising her.
 It is a way of saying “thank you” …. For allowing him
to marry their daughter;
CONT.
 However it is still a debate on the ground that marriage
is a contract between two parties and the question which
arises is why it is only one party which has to be
appreciated and not both parties.
 Further to that if it is a token of appreciation then it is a
gift.
 A gift should be given freely and voluntarily and the
giver is the one to determine what he wants to give.
CONT
 Unfortunately, with this token of appreciation called
dowry, the wife to be’s family are the ones who sit down
and determine the kind of gift which they want to receive
and even impose sanctions for nonpayment.
Bond of Unity
 Dowry is a bond uniting two families. The bride price is
a symbol of unity between two families. Bride price
injects a sense of accountability into a marriage giving
both families a stake of it.
 This helps to create a strong marriage.
CONT.
 In the traditional setting, the bond was strengthened by
the fact that marriage negotiations involved all members
from the two families.
 The woman’s father invited his parents, uncles and
brothers who took an active role in deciding the amount
to be paid.
CONT.
 On the other hand, the man’s family also helped to raise
the bride price and to negotiate with the other family.
 Members of the man’s family who had cattle give him
some of the cattle to pay as a bride price.
 The man could therefore not divorce his wife without
consulting the other family members who have
contributed to the marriage.
CONT.
 Security and Respect for the Wife
 Bride price is seen as a way of giving the wife respect
and insurance in her marriage.
 In traditional society, the payment of bride price secured
position of the woman within the marriage and his
family; it is also granted her certain rights, claims and
guarantees.
 She could not just be “expelled” or arbitrarily divorced
by the husband without an elaborate process involving
both families.
CONT.
 Preliminaries to Marriage
 Prior to marriage there are things to be taken into
account.
 Under section 18 (1) of Law of Marriage Act:

 Parties must give notice to the register of marriage at

least twenty-one days before marriage showing their
intention to marriage;
 Once the notice has been given the register shall cause
the notice to be published. As per Section 19 publication
of notice to the Act
CONT.
 After publication, any party may raise an objection if any
to the register with reasons.
 If it is an Islamic marriage and the husband want to
marry the second wife the first wife can raise the
objection that having regards to the means of her
husband the second marriage may cause the hardship to
the marriage, also she can raise the objection that the
intended wife is having the notorious character or the
disease which can cause trouble to the family [s.20]
CONT.
 If there is objection the marriage cannot be conducted,
but it will be dismissed. If there is no objection it will be
conducted
 Restrictions on Marriage

 Under the LMA, the following are the restrictions;-

 The Age of Marriage

 The Law imposes restrictions on the minimum age of
marriage to be 18 for a male and 15 for a female.
However the court by its discretion may allow a
marriage where the parties are below the prescribed age
by application. (Read section 13(2) LMA)
CONT
 Prohibited Relationships
 Section 14 of the LMA prohibits marriage between
parties related by blood. In Fatuma Masudi v. Ali
Masatu (1977) LRT 3 Kisanga J. held that parties being
members of the same clan or being cousins does not fall
within prohibited relationships as per s. 14 LMA’’.
 Subsisting Marriage
 The law prohibits a man who is under a monogamous
marriage to contract another marriage and a man
CONT
 who is under a polygamous marriage to contract a
monogamous marriage, as per section 15 LMA.
 The law prohibits a woman who is under any form of
marriage to contract another marriage while that
marriage subsists.
 In Ramadhani Said V Mohamed Kilu (1983)TLR 309
(CA) among others, it was held that no woman who is
still married, while that marriage subsists can contract
another marriage; (see s. 15(3) and s. 152(1) of the Law
of Marriage Act, 1971);
CONT.
 it is an offence for a married woman to be a party to a
ceremony of marriage whereby she purports to marry
another man
 The Presence of Witnesses

 S. 27 provides for requirement for every marriage to be

contracted in the presence of at least two witnesses.
CONT.
 The witnesses must;
 first, be above the age of 18 years.

 Second, not of unsound mind due to mental illness or

intoxication.
 Three, Understand the language in which the ceremony
is conducted. Four, Absence of witnesses is an offence as
per s. 154 of LMA.
CONT.
 Marriage Certificate
 When marriage is contracted in any form then the person
contracting that marriage must complete in duplicate a
marriage certificate in the prescribed form and sign and
cause the parties and the witnesses to sign and hand one
copy to the parties and retain the other copy. This is
provided by s. 33 to the LMA.
CONT.
 Duration of Marriage
 According to s. 12 of the LMA a marriage shall subsist
until determined by;
 One, by the death of either party thereto.

 Two, by a decree declaring that the death of either party

thereto is presumed.
 Three, by a decree of annulment.

 Four, by a decree of divorce.

 Five, by an extra-judicial divorce outside Tanzania which

is recognised in Tanzania under the provisions of section
92 of LMA.
TOPIC TWO: PRESUMPTION OF
MARRIAGE.
 In this kind of marriage there is no formal marriage, the
law has to presume that there is a marriage, of course
depending on the life style of the cohabitants.
 Presumption applies to the union, which did not follow
the legal formalities in its creation hence calling for the
hands of the court.
 This is important in order to determine the legal rights of
the spouses.
CONT.
 It is a common practice in Tanzania for parties to
constitute themselves as husband and wife without
undergoing formal ceremony of a marriage.
 This has no problem when the parties are consuming
their union happily, but things turn sour when the union
falls into squabbles dictating judicial interference.
 More often than not, the court is called to look into the
union and try to fit it into the provisions under which the
marriage can be presumed hence declare rights which
ought to flow after the union.
CONT.
 Under this doctrine it is a trite law that, where a man and
woman cohabit and hold themselves out as husband and
wife for a period of two years or more, this raises a
presumption that they are legally married.
 Section 160(1) LMA “Where it is proved that a man and
woman have lived together for two years or upwards, in
such circumstances as to have acquired the reputation of
being husband and wife, there shall be a rebuttable
presumption that they were duly married”.
CONT.
 This law proffers two fundamentals elements, which
need to exist simultaneously towards the presumption of
marriage.
  First, it must be proved that the parties have cohabited
for two years or more. The time under which the parties
have cohabited is of utmost importance in order to
determine the presumption.
 Cohabitation for a lesser period than stipulated under the
law renders the relation as those of mere concubines..
CONT.
 This is vital because one cannot be considered as
husband and wife for the mere relationship of only
weeks or months
 In the case of Zaina Ismael vs Said Mkondo (1985)TLR
the parties never contracted marriage for five years.
 But they lived together in their cohabitation they were
blessed a child, the respondent claimed custody of child
he lost in Primary Court and won in District Court on the
ground that once couple lives for five years they are
dully married .
CONT.
 The appellant appealed to High Court where it was held
that: Under section 160(1) of Law of Marriage Act the
parties can raise the presumption of marriage if they
have stayed together for more than two years but a
rebuttable presumption. And the intention of this section
is not a way to create alternative of contracting marriage.
Because, the parties were not dully married, but is
intended to protect the rights of women during
separation
CONT.
 Second, they should have acquired a reputation of being
husband and wife.
 Probably, this element is more demanding than the
former since the determination of such a reputation will
require a lot of things to be taken into account.
 Here, the question of neighbours is given the chance to
spell. The question will be; did your relationship
constitute a marriage in the eyes of the neighbours?
CONT.
 Failure to prove this condition expels the whole concept
of presumption even if the parties have cohabited for
more than the stipulated period of two years or upwards.
 Therefore, the life style of a boy and girl friend cannot
be equated with that of a wife and husband so as to
accommodate the presupposition that the parties were
duly married.
 In other words, the status of husband and wife should be
given a singular concern.
CONT.
 The case of Charles Ruyembe v. Mwajuma Salehe [1982]
TLR 304. may be a good authority for this purpose.
 In this case the parties cohabited since 1976 to 1980 and
a child was born out of that union.
 After the relationship had grown sour, the respondent
sued in the District Court for a declaration that she was
not the appellant’s wife and that the appellant had no
right to custody the child.
 The court stated among other things that;
CONT.
 “For a rebuttable presumption of a marriage to arise the
parties should not only have lived together for two or
more years, but they should have acquired the reputation
of being husband and wife. The judge however went on
saying that the life style of a boy and girlfriend could not
be equated with that of a wife and husband so as to
accommodate the presumption that they are dully
married”.
 In this case, the presumption was rebutted on the
evidence adduced by their neighbour who considered the
parties as boy and girlfriend.
CONT.
 Once the marriage has been presumed the court will
normally pursue the normal steps to dissolve the
marriage as if any other marriage is being determined.
 TAKE NOTE THAT this does not apply automatically it
is only applicable where there is a dispute i.e. marital
problem between two parties; it was there to protect
women interests on issues of inheritance and division of
matrimonial assets.
 If the husband has died and the relative don’t allow the
woman to have inheritance or during termination of their
marital relationship;
CONT.
 When the presumption has been proved, the wife will be
deemed a legal wife and she can apply for maintenance
upon satisfying the court that they actually lived as
husband and wife for the period of two years or more but
she cannot petition for divorce or separation as no legal
marriage has been pronounced.
 However, either of the parties shall be entitled to apply
for other relieves such as custody of children, division of
property and such orders will be exercised as stipulated
under the Law of Marriage Act, section 160(2)
CONT.
 In the case of Harubushi Seif v. Amina Rajabu [1986]
TLR 221 it was stated that if the presumption of
marriage under section 160(1) of the Law of Marriage
Act has been proved then under section 160(2) the
woman becomes a deemed legal wife devoid of the legal
right to petition for divorce and separation..
 Also, in the case of Elizabeth Ismail v. Melikizedek
Haruni [1982] TLR 322 states that where a presumption
of marriage has been proved, section 160(2) of the Law
of Marriage Act gives rights
CONT.
 to either party in relation to maintenance, custody of
children and any other relief the court is competent to
give under the Act.
 TAKE NOTE there is no divorce on presumption of
marriage
CONT.
 Two Schools on Presumption of Marriage
 there have been divided judicial interpretations on this
provision leading to two schools of thought.
 Some judges do not abide to the requirements stipulated
under the provisions to presume a marriage.  
 The Conservative School

 According to this school of thought, presumption of

marriage should require many other requirements like
ceremony and most likely payment of dowry.
CONT.
 In the case of Francis Leo v. Paskali Simon Maganga
[1978] LRT No. 22. Mfalila, J. stated that being duly
married means going through the forms and procedures
as provided for under the provisions of Law of Marriage
Act.
 The intention of this position among other things is to
treat the marriage with some specialities. Consequently,
a marriage cannot be presumed just on the reason that
the parties have cohabited for two years or more and
they have acquired such a reputation of husband and
wife.
CONT.
 The case of Zacharia Lugendo v. Shadrack
Lumilang’omba [1987] TLR 31 gives interesting points
for this school of thought.
 Mwalusanya, J., clearly states that; Where a man and
woman live as husband and wife under the belief that
they are legally married, their cohabitation amounts to
concubinage;
 He went on saying; Marriage unlike concubining is a
solemn and serious institution.
CONT.
 There ought to be evidence of customary law marriage to
constitute marriage, such as handling over ceremony by
parents of the girl to the boy, or evidence of certain rites
recognised by relevant customary law of that tribe like a
festival of pombe or other such rituals..

 The Liberal School

 This school of thought has no much to do with other
requirements than those set under the Law of Marriage
Act. This position confines itself to what is stipulated
under the law
CONT.
 Under this school of thought, mere proof that the parties
have cohabited for a period not less than two years and
have attained a reputation of husband and wife, the court
should not take any further objection in presuming a
legal marriage. LMA, Section 160(1).
 Judges following this stand has made a third element in
presuming a marriage, that the parties have not
undergone a formal ceremony.
CONT.
 This is to show that the followers of this school of
thought really disagree with the first stand whose
supporters demand for existence of a ceremony towards
presumption of marriage.
 In the case of John Kirakwe v. Iddi Siko [1989] TLR 215.

 There is actually no logic as to why existence of

ceremony to presume a marriage should be vital.
CONT.
 Presumably, the first school of thought most likely did
not go through section 41 of the same Act, which clearly
states interalia that non-payment of bride price or any
procedural irregularity does not invalidate the marriage.
 By not undergoing a formal ceremony in any way is a
procedural irregularity, which under this important
provision does not invalidate the marriage.
CONT.
Also, the case of Ramadhani Said v. Mohamed Kilu
[1983] TLR 309.
 supports this trend by narrating that failure to give
notice of the intended marriage, absence of shangwe za
harusi or any procedural irregularity in the ceremony are
not matters which would affect the validity of such a
marriage if in all other respects it complies with the
expression requirements of the Act
TOPIC THREE; NULLITY OF MARRIAGE

 Annulment of marriage is different from divorce; the

purpose of annulment is to state that the initial
impediment/hindrance had prevented the formation of a
valid marriage in its fullest sense, whereas the purpose of
divorce is to terminate a valid and subsisting marriage.
 Nullity of marriage can be in the following modes;

 where a marriage is void

 Where a marriage is voidable

CONT.
 Void Marriage
 Means that the ceremony did not create marriage at all.
i.e. void abi initio.
 Section 38 of LMA. Under a void marriage it should be
understood that the parties have been laboring under a
union, which does not fit into the provisions of the law
nor acquire the validity and values of the marriage.
 It is a nullity union from its formation up to the time it is
realized so to be.
CONT.
 Grounds upon which a Marriage is declared Void
 Section 38 provides for those grounds;

 i. Where parties are of the same sex.

 The fact that the marriage is void if parties are not

respectively male and female is designed to cover the
situation of a party who had previously undergone an
operation to achieve an alleged sex or about whose sex is
in doubt.
CONT.
 This operation usually involves hormone treatment, the
surgical removal of the male genital, and the
construction of an artificial vagina, and a person who has
successfully undergone such treatment may be treated as
a woman for many official purposes but not in a
marriage contract.
 As in Cobert vs. Cobert [1970] WLR 1306 in which a
defendant, Mr. Ashling decided to change his sex by
severing his male organs and fixing female organs. It
was successfully done.
CONT.
 Thus she become a courier model, latter she got married
to a man who did not know all this facts; but letter on he
discovered that he was not a really woman.
 It was held that sex is biological fixed at birth cannot
changed artificially.
 Thus Ashling cannot by no way be a woman.
CONT.
 ii. if parties who practice marriage are within
prohibited relationships,
 In Tanzania the Law of Marriage Act, section 14(1) sets
out clearly that a person cannot marry his or her
grandparent, parent, child or grandchild, sister or brother,
great aunt or great uncle, aunt or uncle, niece or nephew.
 It also recognises the relationship created through
marriage i.e. “affines” by prohibiting a marriage by the
grandparent or parent, child or grandchild of his or her
spouse or former spouse. Section 14(2) LMA
CONT.
 The protection is based on genetic reasons for there is a
higher chance of mutant genes being present in common
in two persons with a close common ancestor.
 Also see the case of Michael Mangare vs. Mangana
[1976] LRT 19 and Fatma Massoud vs. Massoud [1977]
LRT 3.
 iii. Where either party to that marriage is below the
age for marriage.
 The Law of Marriage Act, section 13(1) provides for the
minimum age under which a person can contract a
marriage.
CONT.

Under this provision an eighteen and fifteen years old

male and female respectively can enter into a marriage
contract.
 But, where the female is below the age of eighteen
years, the parent or guardian must first give consent
before the marriage is contracted. S. 17(1)
CONT.
 iv. Where there is a valid subsisting marriage
 The law prohibits a man who is under a monogamous
marriage to contract another marriage and a man who is
under a polygamous marriage to contract a monogamous
marriage, as per section 15 LMA.
 The law prohibits a woman who is under any form of
marriage to contract another marriage while that
marriage subsists.
CONT.
 Therefore where there is a valid subsisting marriage later
on a spouse purport to have the second marriage thus the
latter is void abi initio.
 In Ramadhani Said vs. Mohamed Kilu 1983)TLR 309
(CA) in which couples were in conflict they decided to
separate for long time, a woman believed that they were
dully divorced, she contracted another marriage.
 It was held that the second marriage was void abi initio,
a mere fact that they decided to separate is not regarded
as divorce only a court of law can divorce.
CONT.
 The court added that no woman who is still married,
while that marriage subsists can contract another
marriage; it is an offence for a married woman to be a
party to a ceremony of marriage whereby she purports to
marry another.
 Read; Hayward vs. Hayward [1961] ALL 236;

 Kassim vs. Kassim [1962] 3 ALL 426

CONT.
 v. Where consent to either parties was not freely
given.
 The marriage like any other contract must therefore be
contracted under free consent given by both parties. If
either party does not consent, the marriage is void.
 In the case of Buckland v. Buckland (1968) P. 296 the
petitioner was employed by the British Authority in
Malta as a dockyard policeman. He was charged under
the Maltese law in having sexual intercourse with a 15
year old girl.
CONT.
 Although he was innocent of the offence, his solicitor
advised him to marry the girl unless he could be found
guilty and be imprisoned for many years and be ordered
to support the child for fifteen or sixteen years of which
the girl was believed to be pregnant.
 The petitioner was terrified and he agreed to marry the
girl and after few days he returned to England where he
petitioned for annulment of the marriage on the ground
that it was void for want of his consent.
CONT
 The court held that the petitioner agreed to marry
because of fears reasonably entertained, which arose
from external circumstances for which he was in no way
responsible. For this reason, the marriage ceremony was
null and void.
 Therefore, if one of the parties is induced to enter into a
marriage and he/she gives consent which would not
otherwise been given, the marriage will be void for lack
of free consent.
CONT.
 Unsoundness of mind will affect the validity of the
marriage if at the time of the ceremony the party thereto
was unable to understand the nature of the marriage.
 In case of drunkenness and the effects of drugs, the
effect will be the same as that of unsoundness of mind.
 Meanwhile, the marriage will be said to lack consent if
one of the parties mistaken as to the nature of the
ceremony and does not appreciate that he is contracting a
marriage.
CONT.
 In Valier V. Valier (1925) 133 LT 830 the wife took the
husband, who was an Italian and whose knowledge of
the English language was poor, to a Registrar’s office
and they went through the usual form of marriage.
 He did not understand what was happening at the time,
the parties never cohabited and the marriage was never
consummated.
 It was held that he was entitled to a decree of nullity.
CONT.
 vi. If a wife was a widow or divorced woman married
in Islamic form and contracts another marriage before
expire period of Islamic customary month called ‘iddat’,
rationale behind is to find out if she can be pregnant.
 vii. Marriage express to be temporary in nature, it is
void abi initio 
 viii. If competent witnesses were not present.

  ix. If the person officiating the marriage ceremony is

not lawfully entitled to do so.
CONT.
 Voidable marriage s. 39 LMA
 A voidable marriage is perfectly valid unless and until it
is put to an end by either of the parties. Section 40 LMA.
 As will be elucidated in the foregoing paragraphs, it is
upon the parties to annul the voidable marriage;
otherwise it remains valid and legal in all respects.
 Grounds upon which Marriage can be Held Voidable.

 i. Either parties to the marriage are incapable of

consummating the marriage;
CONT.
 Marriage is consummated by first act of sexual
intercourse after celebration of marriage.
 The marriage once consummated turns out to be absolute
and free from nullity tests on the ground of being
voidable.
 Consummation means sexual intercourse, which is
“’ordinary and complete’; there must be both erection
and penetration for a reasonable length of time.”
CONT.
 A marriage is said to be consummated as soon as the
parties have sexual intercourse after the solemnisation.
 In order to amount to consummation, the intercourse
must, be “ordinary and complete, and not partial and
imperfect.”
 Therefore, it cannot be regarded as consummation in the
eyes of the law if the husband does not achieve full
penetration. Penetration in this sense does not need
orgasm.
CONT.
 Even if the husband did not reach the point of orgasm
still the marriage will in all aspects be consummated.
 Even sterility does not mean non-consummation, as the
marriage will be deemed to be consummated even if the
wife is beyond the age of conceiving.
CONT.
 When a man is impotent either part may seek this decree.
As in Harthan vs. Harthan[1948] 2 ALL 644,
 Sexual intercourse before marriage is irrelevant but
never amount to consummation.
 See the case of Dredge vs. Dredge. [1947] 1 ALL 29

 The purpose of consummation, sexual intercourse

should be complete and ordinary; it should not be partial
by artificial means i.e. full penetration in ordinary
means.
CONT.
 In Baxter vs. Baxter[1947] 2ALL 886 in which the wife
did not allow husband to do sex without contraceptive
sheaths because she did not want children, otherwise no
sex was allowed without sheath.
 Husband sought decree of nullity under a ground that
marriage did not consummate.
 It was held that the use of sheath is by law means only
method of contraception in common use. They could use
other method such as pills.
CONT.
 In W vs. W [1967] 3 ALL 178
 in which a husband was able to penetrate his wife but as
soon as the penis enters, it collapse in the vagina and
come out.
 It was held that marriage was not consummated.

 In order for petition to succeed on ground of incapacity

to consummate it is important at the time of hearing and
that impotency is incurable in the sense that either it
cannot be cured even if operation is taken is unlikely to
succeed.
CONT.
 In S vs. S [1954] 3 ALL 736
 in which a wife’s hymen was so thick that it prevented a
full penetration by the husband, the husband suggested
that she could seek medical advice but he could not take
her to any doctor. Letter he went to live with another
woman and sought decree of annulment.
 The issue was whether she was incapable of
consummating the marriage, at the day of hearing, it was
held that, consummation was improbable but due to fact
that husband was living with another woman, operation
was possible to make her able to penetrate.
CONT.
 NOTE: ejaculation and incapacity for woman to
conceive are irrelevant.
 As in case of R vs. R [1967] 1 ALL 1194

 it was held that there may be no ejaculation provided

there is penetration, consummation is complete.
 S vs. S [1962] 3 ALL 55

 A woman was incapable of conceiving since she had no

uterus. Husband petition for decree of annulment,
Incapacity was irrelevant.
CONT.
 ii. Wilful refusal to consummate
 The Law of Marriage Act provides that a marriage is
voidable if it has not been consummated owing to the
wilful refusal of the respondent to consummate it.
Section 39(b) LMA.
 From this provision the ground carries weight upon
proof that the refusal was wilful.
 It is however important for the husband to use
appropriate tact, persuasion and encouragement in
order to consume their marriage.
CONT.
 The wife therefore will not be guilty of wilful refusal if
the husband failed to seduce her to consummate the
marriage.
 Yet again, if the respondent shows a “just excuse” for his
refusal to consummate him/her is as well not guilty of
wilful refusal.
 For instance, where the wife is in the time of ovulation,
this by itself can be considered as a just excuse.
CONT.
  In Baxter V. Baxter (1948) AC 274 HL it was held that a
wife’s refusal to allow intercourse unless her husband
used a condom was not a refusal on her part to
consummate the marriage.
 iii. Venereal diseases

 A marriage is voidable if either party is suffering from

venereal diseases in a communicable form. Section 39(a)
(iii).
 It is unclear whether AIDS is a venereal disease for this
purpose. But, so far as it is a sexual transmitted disease
there is no reason why it should not be considered as one
of the venereal diseases in a communicable form.
CONT.
 However, it should be noted that whilst other sexual
transmitted diseases may essentially be transmitted
through sexual mating, AIDS might be transmitted in
other ways such as blood transmission.
 Probably, this might be the basis for not including AIDS
within the venereal diseases as envisaged under the law.
 However, it remains prudent to release a person from
marriage to an infected spouse
CONT.
 In the case of Nashon Makoba V. Mary Makoba In the
High Court of Tanzania at Mwanza, PC Civil Appeal No.
79 of 1999
 the petitioner had filed a petition for divorce before the
primary court without referring the matrimonial
difficulty to the Marriage Conciliatory Board.
 During the hearing of the petition, the petitioner levelled
another allegation against the respondent that she could
not resume a marriage life with him because he was HIV
positive.
CONT.
 To support her allegation, the petitioner produced a
photocopy of a sick-sheet from Shirati Hospital in Mara
Region which was issued in the name of Nashon
Makoba.
 The court ordered the parties to leave apart until either of
them petitions for divorce or separation after referring
the matrimonial difficulty to the Marriage Conciliatory
Board as required by section 101 of the Law of Marriage
Act, 1971.
CONT.
 iv. Pregnant Per alium or Pregnancy by third party s.
39 (a) (iv) LMA
 The law is clear that a marriage is voidable if the wife
was pregnant by some person other than the husband.
Section 39(a)(iv).
 This provision gives a remedy to the husband to petition
for nullity if at the time of the marriage the respondent’s
wife was pregnant by someone other than himself.
 This is sometimes referred to as Pregnancy per alium.
CONT.
 Notably, the wife should have been conceived on the day
of the ceremony in order to add-up to a ground for
avoidable marriage.
 When the husband knew beforehand that the wife was
pregnant and proceeded to contract the marriage the law
will deter him from this relief.
 v. Lack of Parental Consent

 The Law of marriage Act provides for the minimum age

under which a person can contract a marriage. Under this
provision an eighteen and fifteen years old male and
female respectively can enter into a marriage contract.
Section 13(1) LMA.
CONT.
 But, where the female is below the age of eighteen years,
the parent or guardian must first give consent before the
marriage is contracted. Section 17(1) LMA.
 It follows therefore that the marriage shall be voidable if
the wife had not attained the age of eighteen years and
consent of the parent was not sought.
 This marriage shall only be nullified if the court sees
good and sufficient reason to set the marriage aside
Section 39(c).
CONT.
 This is to the effect that the girl at this age cannot give
rational decision.
 Under this ground, the decree can only be granted if it is
proved that the petition was filed before the girl had
attained the age of eighteen years, section 96(1)(b).
 If the girl attains the age of eighteen she is deemed
under the law to have an independent decision to her
marriage.
CONT.
 Bars to Nullity Decree
 Under certain circumstances the decree of nullity may
not be granted.
 The Law of Marriage Act provides bars under which the
petitioner may be prevented from seeking a decree.
 Outstandingly, bars operate to voidable marriages only
because void marriages do not need the verdict to put it
to an end.
 Voidable marriage basically needs such an order to set it
aside. Section 96(1) LMA.
CONT.
 Where the bar operates to deter the petitioner from being
granted the decree, the marriage remains valid
throughout the lifetime of parties unless terminated on
other grounds such as divorce or death.
 1 Lapse of time

 A decree of nullity may be refused if the proceedings

were not instituted within one year from the date of the
marriage. Section 96(1)(a)(i). The reason for this bar is
to ensure that the parties’ status is not left in doubt for
too long
CONT.
 It is unreasonable for the petitioner to institute a nullity
petition after let say ten years of marriage.
 If time limit could not apply, many marriages were likely
to be affected as the mere loss of core love could proffer
an opportunity to deceitful spouses to hunt for reasons to
halt the marriage.
 Meanwhile, lapse of time is not a bar in the case of
inability or wilful refusal to consummate the marriage
because the petitioner may properly try to overcome the
impediment or aversion for a longer period than a year.
CONT.
 2 Knowledge of the defect
 In all intents the marriage must receive protection when
it is set to exist and should be treated as a special
institution on which one should go through with
reasonable care and diligence.
 It follows that when a party enters into a marriage
contract fully informed that the other spouse has a defect
which would otherwise nullify it, when it turns up that he
wants to nullify the marriage, the court should stop him.
Section 96(1)(a)(ii).
CONT.
 The decree may ultimately be denied unless the court is
satisfied that the petitioner was badly informed of the
facts alleged at the time of the marriage.
 The petitioner can plead ignorance only if a “reasonable
man” in his shoes could have done so. In other words if
it appears in the eyes of the court that as a reasonable
man he ought to know the facts before the marriage
otherwise it may prove failure to render the marriage
voidable. The principle of “buyers beware” may as well
operate in marriage contracts.
CONT.
 3 Approbation of the marriage
 The operation of this principle, which is known as
“approbation” or “insincerity” is in practice confined to
petitions alleging impotence or wilful refusal.
 It prevents the grant of a decree to a petitioner who with
knowledge of the annulment of his marriage treats it as
valid and subsisting before seeking to annul it.
CONT.
 Precisely the principle plays its role where the petitioner
ought to have set the marriage aside but treats it as
legitimate.
 So in case he wants to annul it the decree may be denied.

 In other words, the decree shall only be granted if it is

proved that marital intercourse has not taken place with
the consent of the petitioner since discovery by the
petitioner of the fact alleged. Section 96(1)(a)(iii
CONT.
 For instance, where the petitioner knew that the
respondent is suffering from venereal diseases but
behaves as if no impediment exists, the court may deny
him a decree.
 However, the petitioner may challenge the decree by
submitting that he had hope of treatment or that there
was no other alternative than upholding his marriage.
 However, this principle may depend on the material fact
of each case, discretion or findings of the court may be
important.
CONT.
 Effects of the Decree of Nullity
 A decree is always necessary to annul a voidable
marriage.
 That means it makes that marriage absolutely null and
void to all intents or purposes in the law whatsoever.
 The consequence of that decree is that before the decree,
the parties were regarded as husband and wife both in
law and in fact.
 But, after the decree they are deemed in law never to
have been married at all. Section 98(1) LMA.
CONT.
 The children of a voidable marriage are legitimate
because the marriage is normally treated as valid.
 Furthermore, the children of a void marriage will be
treated as legitimate provided that at the time of the
intercourse, either of the parties believed that they were
labouring under the valid union. In this regard, it is
immaterial whether their belief was caused by mistake or
not
CONT.
 It is also possible for child to be born after a void
marriage; similarly, the child will receive the same
treatment that means he will be treated as legitimate.
 The rationale for treating children of the void marriage
as legitimated may be founded on the need of protecting
the rights of these blameless follow-on of the union.
CONT.
The case of Festina Kibutu V Mbaya Ngajimba (1985)
TLR 44 is a good illustration on this point. In this case
the Marriage between the appellant and the respondent
was declared null and void because the respondent was
incompetent to marry under the provisions of section 38
(c) and (e) of the Law of Marriage Act, 1971.
 When the marriage was annulled the appellant was five
months pregnant. She then gave birth to a baby girl.
CONT.
 When the child was two years old the respondent
instituted proceedings for the custody of the child.
 The Primary Court awarded him custody of the child.

 On appeal by the appellant to the District Court the

decision of the Primary Court was overruled.
 Custody was given to the appellant until the child
reached the age of seven years.
 The court ordered the respondent to pay Shs.50/= a
month towards the maintenance of the child.
CONT.
 When the child reached the age of seven years the
respondent sought to be given custody of the child.
 The case was before a Primary Court which heard both
the parties and also heard the child who expressed that
she wished to live with the appellant.
 Custody of the child was given to the respondent. The
appellant's appeal to the District Court was not
entertained.
CONT.
 She appealed to the High Court challenging the award of
custody of the child to the respondent.
 She also attacked the maintenance award as being too low.

 KAZIMOTO J held as follows;

 The mother's entitlement to custody of a child born out of a

void marriage is not absolute; it is conditional upon the
absence of agreement between the parties or court order
vesting custody to another person; the wishes of a child of
tender age should not be permitted to subvert the whole
law of the family or to prevail against the desire and
authority of a parent unless the welfare of the child cannot
otherwise be secured;
CONT.
 Under the circumstances of this case it was not in the
best interest of the child to have given custody to the
respondent which would have adversely affected her
educationally and psychologically; in deciding what
amount of maintenance should be paid the court should
hold an enquiry as to the means of both parents in order
to arrive at a just decision; where applicable the court
should take into account the customs of the parties and
the conditions prevailing at any particular time.
CONT.
 Also, parties may be leaving under an illegal marriage
without understanding that their union is not recognised
under the law.
 So, where parties themselves did not understand their
illegality of their marriage there is no rationale why
children should be treated illegitimate.
 Moreover, this operates as an exception to the general
rule that a child born out of the wedlock will be
illegitimate.
CONT.
 The decree of annulment does not render anything done
during the marriage unlawful, which was lawful, and
vice verse.
 It does not as well relieve the husband from any debt
incurred on behalf by his wife.
 It affects competence and compellability of the spouses.
Section 98(1)(b)(c)(d)LMA.
 The decree shall have effect thirty days after it has been
pronounced if no appeal or notice is filed. Section 98(2)
LMA.
TOPIC FOUR; THE LEGAL EFFECTS OF MARRIAGE
S. 56 – 68 LMA

 After a valid marriage is celebrated it creates some rights

and duties among the parties to that marriage.
 Rights and Duties of Parties to Marriage

 This is covered under part IV of the Marriage Act.

 It is a consortium of rights i.e. a band of rights. The

rights of the parties to marriage include the following-:
right to cohabit, conjugal rights, love and respect,
maintenance, protection and intimacy, companionship
and consummation.
CONT.
 Right/ Duty to Cohabitation
 A married person is entitled to cohabitation of his/her
spouse unless they are judiciary separated or they have
agreed to live apart S.111 and 67 LMA.
 Cohabitation means Living together as husband and
wife. This occurs even if parties are not married.
 The obligation to cohabit is not mandatory. S. 140 LMA
parties may not be compelled to cohabit. If it were it
would negate consent and voluntariness.
CONT.
 Ahmadi Saidi Kidevu v. Sharifa Shamte, Maina J, the
issue was whether the court could compel the
respondent’s wife to cohabit with the husband.
 The court held that; when difficulties arise in a marriage,
and one spouse decides to live separately from the other,
the court cannot compel them to live together.
 Parliament, in its wisdom, enacted section 140 of the
Law of Marriage Act, which clearly provides that a court
cannot compel one spouse to live with the other.
CONT.
 The only remedy to a spouse who has been deserted is to
commence divorce or separation proceedings.
 Mwendwa Mtinangi v. Juma Mahumbi, [1984] TLR
47 Lugakingira J (as he then was), in view of section 140
of the Law of Marriage Act, 1971 no court is empowered
to compel cohabitation.
 S. 111 LMA if a decree of separation is issued parties are
relieved their duty to cohabit. S. 67 LMA parties may by
written agreement agree to live apart.
CONT.