Sunday, August 14, 2011

Law of Marriage

Judicature and Applications of Laws Ordinance (Cap. 453)
Non-Christian Asiatic (Succession) Ordinance 1923
Civil Code
Code of Civil Procedure 1966
Law of Marriage Act 1971
Waqf Law 1946 [Note: above legislation only applicable to Tanganyika and not to Zanzibar]

Marriage Age: under Marriage Act 1971 minimum age is 18 for males and 15 for females; courts may permit underage marriage of parties who have reached 14 years of age if specific circumstances make marriage appear desirable; Penal Code provides that persons of "African or Asiatic descent" may marry or permit marriage of girl under 12 years of age in accordance with their custom or religion if marriage is not intended to be consummated before she attains 12 years

Marriage Guardianship: Marriage Act 1971 provides that valid marriage requires free consent of marrying parties; guardian's consent not required for parties who have attained 18 years

Marriage Registration: obligatory; non-registration punishable by fine although does not render marriage void; provision for licensing of religious functionaries as marriage registrars

Polygamy: permitted with consent of first wife; upon registration, parties are to declare whether marriage is polygamous, potentially polygamous, or monogamous, and marriage may be 'converted' to polygamous or monogamous by joint declaration Obedience/Maintenance: maintenance of wife or wives is husband's duty; becomes wife's duty in cases where husband is incapacitated and unable to earn a living; Courts may order maintenance under limited circumstances where husband refuses or neglects to maintain wife

Talaq: does not automatically dissolve marriage, but constitutes compelling ground for Court to issue decree of divorce iftalaq was pronounced after failure of reconciliation efforts by Marriage Conciliatory Board

Judicial Divorce: except in extreme cases, no petition of divorce to be heard before marriage has subsisted for two years; either spouse may apply for divorce on grounds of breakdown, but no decree of divorce can be granted unless court is convinced of irreparable breakdown; party seeking divorce must first apply to Marriage Conciliatory Board which must certify failure to reconcile parties before divorce suit can be initiated; evidence of breakdown of marriage for court's purposes must indicate following grounds: mental or physical cruelty; wilful neglect; desertion; voluntary separation; or change of religion dissolving marriage under religious law the parties were subject to at time of marriage; requirement of recourse to Marriage Conciliatory Board can be waived under certain circumstances (desertion, mental illness, imprisonment, etc.)

Post-Divorce Maintenance/Financial Arrangements: in dividing marital property and passing decision on maintenance, courts must consider: customs of the parties' community; contribution made by each party towards acquisition of the property in money, property or work; debts owed by either party for acquiring property for their joint benefit; and needs of infant children; Courts may order maintenance for former wife for limited number of reasons such as enforcing Muslim wife's right to maintenance during 'idda

Child Custody and Guardianship: first consideration of court in ruling over custody matters is welfare of the ward; rebuttable presumption that children should remain with mother until age of 7; courts also directed to consider: customs of community to which parents belong; economic circumstances of both parents; housing that both parents can provide; and behaviour of mother and whether she contributed to marital breakdown Succession: governed by classical law; under Non-Christian Asiatic Succession Ordinance, personal law applicable to deceased (Hindu, Muslim, etc.) will apply; in case of conflict of laws between Islamic and customary laws are applicable to succession, thus Courts directed to consider intention and mode of life of deceased in determining which regime should apply.

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