Sunday, August 14, 2011
Law of marriage Case Laws
THE TANZANIAN LAW OF MARRIAGE ACT
The term marriage refers to an agreement by which a man and a woman enter into a relationship with each other and which creates and imposes mutual rights and duties (N.V. Lowe & G. Douglas. Bromley’s Family Law 9th ).
Marriage is the voluntary union for life of one man to one woman to the exclusion of all others (S.M. Cretney, et al Principals of Family Law)
In Hyde v. Hyde (1866 LRIP & D 130, 133), it was stated that marriage is the voluntary union for life of one man and one woman to the exclusion of the others.
In Ahmmed Said Kidevu v. Sharifa Shamte (1989 TLR 148) Maina , J. Observed that marriage is the voluntary union of a man and a woman and it is contracted with the consent of the parties.
The provision of s.9 of the Law of Marriage Act, Act No.5 of 1971(Cap, 29 R.E.2002) defines the term marriage as the voluntary union of a man and a woman intending to last for their joint lives.
Generally marriage can be defined as a contract between a man and a woman that contracted with their free consent with the intention of living together for the whole of their lives.
The Law of Marriage in Tanzania is originated from the colonialists. In Tanzania by then Tanganyika, the British introduced the Tanganyika Order in Council (T.OC.) of 1920 that introduced the application of Customary Laws and the enactment of the Judicature and Application of Laws Act (JALA) (Cap, 358 R.E.2002) by then The Judicature and Application of Laws Ordinance (JALO).This provided for the application of Islamic and customary laws in marriage matters in the country.
Due to plurality in laws during colonialism and after independence there was internal conflict of laws. Tanzania tried to solve some of them; in 1969 the government issued the white paper which was like a palimateria from the report of the Spry Commission in Kenya. The white paper leads to the enactment of the Law of Marriage Act. Hereinafter referred to as the “Act”.
To some extent the Act represents the big effort by the Legislature to integrate and streamline various personal laws without unduly interfering with people’s customs and religious beliefs as hereunder provided in a nutshell:
The Act prohibit blood related relatives to get marry each other, this is provided under the provision of s.14 also in Tanzania there is no any religion or custom that allows such situation.
It prohibits too a married woman to contract another marriage while the former one still exist. Neither the Act, religion nor people’s custom do allow the married woman to contract another marriage. This is governed by s.15 (3).
To avoid the marriage from being declared nullity the Act under the provision of s.16 requires consent to be there as a general rule. Also in Tanzania as a general rule all kinds of religions and customs do require consent of the parties to marriage. This is supported by the case of Ahmad Said Kidevu v. Sharifa Shamte (1989 TLR 148), in this case the parties were married under Islamic law, they quarreled and separated after the respondent had issued one ‘talaka’. It was stated that marriage is a voluntary union of a man and a woman and it is contracted with the consent of the parties.
Not only consent but also the manner of contracting the marriage. This is supported by the provision of s.25 (1). It is elaborated more in Daniel Masalu v. Musa Shadrack (1987 TLR 35), the appellant clamed damages of five head of cattle for adultery against the respondent. He paid the bride price of 10,000/= he wanted to contract marriage but he traveled from the place where his spouse was living and on return he found the woman married to the respondent. It was held that the payment of 10,000/= as a bride price did not constitute marriage according to the Sukuma customary law rites as stipulated under s.25 (1) (d) of the Act and there were no marriage at all.
Under religious marriage and customary marriage there must be witnesses at least two, one for a man and another for a woman. The Act too under s.27 (1) requires marriage to be conducted under the presence of at least two witnesses. In Ramadhan Ramadhan v. Sungi Andalu (1984 TLR 15), the appellant filed a suit claiming from the respondent four head of cattle as damages for inducing his wife to desert him. The issue was whether and Zainabu the respondent’s daughter were married, there was no marriage certificate which was issued but the appellant alleged that he married Zainabu in 1973 under customary law. It was held that payment of bride wealth even if proved, is not existence of marriage. There must be a clear evidence of marriage ceremony. The appellant failed to prove that there was marriage ceremony under s.27 (1) of the Act.
Most of religious and custom marriages are conducted openly and publicly, also the introduction of the Act incorporated this situation per s.28 that states that marriage should be public. The purpose of this is to enable many people to participate the event and them to give evidence when the issue of whether the parties were married or nor not arises.
In Tanzania the parties are allowed to petition for a decree of divorce or separation in the court of law regardless as to whether their marriage was a customary marriage or religious marriage. And the Act by virtue of s.99 reads together with s.140 provides the rights for married couples to seek for a decree of divorce or separation.
In Mariam Tumbo v. Harold Tumbo (1983 TLR 293), the petitioner filed a suit to the court asking inter alia the dissolution of her Christian marriage and the division of matrimonial assets. Lugakingira, J. as he then was dissolved the marriage but the matrimonial assets were not divided.
In Ahmed Said Kidevu v. Sharifa Shamte (1989 TLR148), the parties were married under Islamic law. They quarreled and separated after the respondent had issued one ‘talaka’ . The appellant filed a suit to compel the wife to live with him. It was held that marriage is a voluntary union of a man and a woman and it is contracted with the consent of the parties . It is intended that the marriage will last for their joint lives of the parties. However, when difficulties arise in a marriage and one spouse who has been deserted is to commence or separation proceedings, the court can not compel him or her to live with her or his spouse.
To some extent the Act under the provisions of s.99 and s.140 interferes the religious beliefs especially Christianity on the issue of divorce and separation, for Christians marriage is considered to be a sacrament between the couples. This is clearly shown in the case of Mariam Tumbo v. Harold Tumbo (supra).
Not only the issue of divorce and separation but also presumption of marriage, s. 160 of the Act states that if the couples have stayed together for two years or more than that they are presumed to be married until proved contrary while under religious beliefs and customs the parties are regarded as adulterers. In Hoka Mbofu v.Pastory Mwikaje (1983 TLR286), the appellant appealed against the decision of the district court that was requiring her to issue a decree of divorce to the respondent due to the fact that they lived in a concubine marriage for sixteen years. The High Court looked upon their life style and held that s.160 should not apply and the order of the district court was quashed.
Tanzania government of, the Judicature and Application of Laws Act (Cap, 358 R.E.2002) Government Printers, Dar-es-salaam.
Tanzania government of, the Law of Marriage Act (Cap, 29 R.E.2002) Government Printers, Dar-es-salaam.
Cretney, S.M et al (2003) Principles of Family Law
Lowe, N.V & G. Douglas (1998) Bromley’s Family Law. 9th Ed, Butterworth, London.