Family Law Notice Nzuri

Lwijiso O.
Ndelwa: FamilyLaw
THE UNIVERSITY OF DODOMA
COLLEGE OF HUMANITIES AND SOCIAL SCIENCES

SCHOOL OF SOCIAL SCIENCES
DEPARTMENT OF LAW
LECTURE ON FAMILY LAW
BY
LWISIJO O. NDELWA
1
Lwijiso O. Ndelwa: FamilyLaw
End user:
MIKIDADI AHMED
2
Mr. Mikidadi Ahmed, a third year LL.B Student at University of Dodoma
3
1. INTRODUCTION
1.1 The scope of family law
The term family is the term which is difficult to be defined precisely, it has
various meanings: According to Oxford Advanced Learner’s Dictionary family
means a group consisting of parents and their children or a group consisting of
parents, their children and close relatives. In another sense it means all blood
relations who are descended from a common ancestor or all members of the
household, including husband and wife, children, servants and even lodgers. At
its narrowest it may describe a father, a mother and young children, but it has
much wider meanings too as it may include other relatives, adopted and fostered
children, and (increasingly these days) cohabitants of different sexes. But so far
as family law is concerned all these above definitions are too wide and therefore
not much useful due to the fact that descending from a common ancestor does
not per se affect the legal relation of the people at all, though it is relevant for the
purpose of intestate succession also the relationship between the head of the
household and the servants or lodgers is basically contractual and therefore lies
outside the scope of family law.
For the purpose of family law family is regarded as the basic social unit which
consists normally of a husband, wife and children. It is not essential that all these
should be members of the family at the same time as for instance husband and
wife are considered to comprise a family before the birth of the children or after
all the children has left home to marry and establish their own families even
when they remain childless for the rest of their lives. Other families may consist
of child or children living only with one parent for example when the other has
died or when the unmarried woman living with the children also adopted and
fostered children, and (increasingly these days) cohabitants of different sexes
For instance in the English case of Dyson Holdings v Fox1, in this case M and W
lived together for some forty years, and W was known as "Mrs. M" although they
were never actually married. Their home was rented in M's name, and the
tenancy was protected by the Rent Acts. After M's death, W remained in
occupation until the landlords PP discovered her unmarried status and sought
possession. The Court of Appeal dismissed PP's claim and said W was entitled to
take over the protected tenancy as "a member of M's family"; the words should
be given the sense that would be given to it by the ordinary man in the street,
rather than a narrow meaning based on a legal marriage.
1
[1975] 3 All ER 1030, CA
4
Family law is generally the study which is understood to deal with the creation,
legal consequence, and protection (both physical and financial) of family
members. It is concerned with marriages thus relationship between spouses, and
between parents or guardians and children. Under common law family law is
mostly concerned with nuclear family and members of the extended family have
some rights and come into picture occasionally, as do local authorities chiefly in
the child protection. Generally family law incorporates law of marriage and the
law of succession or inheritance. Law of marriage regulates how people enter
into marital contracts as there are procedures and formalities stipulated by the
law on how to conclude marriage agreement, duties of the marriage parties and
the consequence of the broken marriage.
In Tanzania there is the Law of Marriage Act no 5 of 1971 1. This Act regulates the
law relating to marriage, personal and property rights as between husband and
wife, separation, divorce, succession matters and other matters connected
therewith and incidental thereto. This Act was passed as a result of the
recommendation of the of the white paper thus the Government proposal on
Uniform Law of Marriage Government paper No 1 of 1969.
Law of succession in Tanzania: There is no single law of succession thus there are
number of laws applied in the country these are Islamic law, Customary laws,
Statutory laws some of them borrowed from India. As for the customary law
they were codified in the Customary (Declaration) Order GN 279/1963.
1.2 The concept of marriage
Marriage is an agreement by which a man and a woman enter into a legal

relationship with each other and which creates and imposes mutual rights and
duties2. According to Section 9(1) of the Law of Marriage Act of 1971 “marriage
means the voluntary union of man and a woman intended to last for their joint
lives”. From this Section there are three elements of a valid marriage these are
first marriage must be a voluntary union. For that reason the marriage which
was contracted without free consent of either of the party is null and void. Where
the marriage polygamous its arrangement require the consent of each and every
woman. Second marriage must be the union between a man and a woman thus
marriage must be heterosexual union, therefore under our law the union of
people of the same sex whether have performed surgical to acquire the sex
cannot validate the marriage. Also this element does not mean that polygamous
marriages are not recognized in Tanzania, they are recognized provided that the
consent of each spouse is sought and thus be the marriage between a man and a
1 Cap 29, Revised Edition 2002( LMA)

2 Kaisi, C. O. (1994). Women Under Presumption of Marriage
5
woman (given the fact that it is difficult for a man to marry all women in
polygamous marriage at once). Third marriage must be intended to last for the
rest of the joint lives of the parties thus there can be no temporary marriages,
marriage should be intended to last for life.
According to cannon law, Marriage is a conjugal union of a man and woman,

which arises only from the free consent of each spouse, but this freedom relates
to the question whether two persons really wish to enter into matrimony1.This
definition provides also that free consent is the vital element in valid marriage
contract.
Common law provides the classical definition of the term marriage in the case of
Hayde v. Hayde2; in this case Lord Penzance states that “I conceive that
marriage, as understood in Christendom, may….be defined as the voluntary
union for life of one man and one woman to the exclusion of all others". In that
concept marriage must be voluntary, heterosexual and monogamous thus
neither spouse is allowed to contract another marriage as long as the original
marriage exists but this element does not have place in Tanzania since the law
recognize polygamous marriages3, and for life thus the law does not recognize
any fixed-term contract as creating a valid marriage the correct meaning of
condition was explained in the case of Nachimson v. Nachimson4, where it was
pointed out that “it must the parties’ intention, when they entered into the
marriage, that it should last for life-in other words, it must last for life unless it is
previously determined by a decree or some other act of dissolution”. Marriage is
unlike any other contract, in that its terms are laid down by the state and not by
the parties themselves, nor can the parties by themselves agree to its termination.
Monogamous marriage; this is the union or a marriage between one man and
one woman. Section 9(1) of the Law of Marriage Act of 19715 defines
monogamous marriage as a union between one man and one woman to the
exclusion of all others. That is to say for example once this marriage is entered
(usually Christian and civil marriages are expected to be monogamous
marriages) if the husband was to take another woman to live with even for many
years that relationship will not be recognized by law as marriage, in this
therefore there is no obligations or rights to that other woman. No one will
benefit from the marriage benefits under the law.
1 Diwan, P (2000). Family Law (5th ed). Allahabad Law Agency. P 25

2 (1866) LR1 P D 130
3 Law of Marriage Act Section 10(1) (b)
4 (1930) CA 217
5Cap 29 Revised Edition 2002
6
Polygamous marriage; is the fact or condition of having more than one spouse at
once. Section 9(3) of the Law of Marriage Act defines polygamous marriage that
“is a union in which the husband may during the subsistence of the marriage, be
married or marry another woman or women. It should be noted that according
to our law the person who can marry more than women is a man. In our
Tanzania polygamous marriages are practiced under customary law and Islamic
law this is provided for under Section 10(2) (a) of the Law of Marriage Act1
which provides to the effect that “a marriage contracted in Tanzania whether
contracted before or after the commencement of this Act, shall if contracted in
Islamic form or according to rites recognized by customary law in Tanzania, be
presumed, unless the contrary is proved, to polygamous or potentially
polygamous. Christian marriages are monogamous and the same cannot be
converted to polygamous marriage this is provided by the Law of Marriage Act
Section 11(5)2 . It is prohibited for women to marry more than one man this is an
offence termed as polyandry. The term polygamy is it is often used as a synonym
for polygyny (marriage to more than one woman), which appears to have once
been common in most of the world and is still found widely in some cultures.
Polygyny seems to offer the husband increased prestige, economic stability, and
sexual companionship in cultures where pregnancy and lactation dictate
abstinence, while offering the wives a shared labour burden and an
institutionalized role where a surplus of unmarried women might otherwise
exist. The polygamous family is often fraught with bickering and sexual jealousy;
to preserve harmony, one wife may be accorded seniority, and each wife and her
children may have separate living quarters. Polyandry is relatively rare; in parts
of the Himalayas, where brothers may marry a single woman, the practice serves
to limit the number of descendants and keep limited land within the household3
In the other phenomenon polygamy means a system of marriage whereby one

person has more than one spouse. Polygamy can be of two types. One is
polygyny where a man marries more than one woman, and the other is
polyandry, where a woman marries more than one man. In Islam, limited
polygyny is permitted; whereas polyandry is completely prohibited4.
NOTE: There is a fundamental right of finding a family. One cannot find a family
in his or her owns there should be a father and a mother thus a husband and
wife. The bringing up of children should be balanced thus it is depending on
both father and mother. Mere tendencies of mother are not enough for the
1 Cap 29 Revised Edition 2002

2 ibid
3 http/ www. answers.com/topic/plural marriage? Britannica Concise Encyclopedia. retrieved in
30th July 30, 2007

4 http://www.irf.net/irf/dtp/dawah_tech/mcqnm1.htm.retrieved in 30th July 30, 2007
7
upbringing of children and the father tendencies is not enough for the proper
upbringing of children.
8
2. MERRIAGES DURING PRE-INDEPENDENCE PERIOD
This includes the African societies which existed before the coming of the
colonialism in Africa and during colonialism.
In the pre-colonial society, marriage was regarded as a transaction giving rise to

reciprocal rights and obligations between two groups of kinsmen and binding
those groups together in a relationship, which remains effective beyond the life
time of the original individual spouses1. Therefore it was important relationship
because it ensured the continuity of lineage and was a source of labour and also a
means of establishing wider, political and economical ties between the groups 2.
Therefore it follows that the participation of the larger social group in the whole
process heading to marriage was both essential and consequential. In these
societies there was a profound interest and involvement of the families of the
marriage contracting parties in the arrangement and effectiveness of the
marriage. Normally parents did participate in the arrangement of marriage their
involvement was aimed at effecting and making sure that the marriage is stable
and respectable. Parental consent as opposed to individual consent was of
utmost importance. There were customary marriages. At one time one Nigerian
author Obi defined customary marriage as a union of man and women for the
duration of woman’s life being the gist a wider association between two families
or set of families. Why for the duration of woman life? Because under customary
law there was a custom of inheritance of the widow wife after the husband has
died. If she died first then that could be end of the marriage. In some societies the
husband of the deceased wife could marry another lady of the deceased family to
take care of the deceased children.
2.1 Characteristics of traditional African marriages
1. The marriage was for the creation of children and extension of kinship. Thus
the basic expectation of the marriage was to get children and expansion of the
kinship. Therefore the man and the entire society choose a fertile woman who
will bear many children as marriage enables the lineage to expand itself.
2. Marriage was characterized by parental consent as opposed to the consent by

individual parties contracting marriage. Thus in most of the societies the parents
of the prospective couple consent as to the marriage of their child. Due to this
fact the degree of individual voluntariness of the parties to the contract of
marriage was minimal, as they could not contract marriage on their own since
they had no wealth which they could pay as bride price. Also it was difficult for
1
Philips, A. (1961) Survey of African Marriage and Family life, an introductory essay
2
Rwezaura, B.A. (1985). Traditional Family Law and Change in Tanzania. Nomos Kergasgeseuchaft,
Baden- Basten. P. 51
9
the marriage to be contracted between families with long standing feuds as the
marriage involved the formation or consolidation of political, social and
economical alliances between larger groups there fore parents determine the
unions of the children with those with those parties with whom they were on
friendly terms. However in some circumstances marriage could take place
between parties who had long standing feuds as a means of ensuring end of the
war or feuds.
3. The marriage was to provide labour because the wife joins the husband’s
family and so the labour was added. A man with many wives was seen to have a
key labour power. Marriage was also seen as a production of labour thus the
more the children the more the labour power.
4. Profound interest and involvement of the families of the marriage contracting

parties in the arrangement and effectiveness of the marriage. Normally parents
did participate in the arrangement of marriage the involvement was aimed at
effecting and making sure that the marriage is stable and respectable.
-The nature of the marriage contract was not between the two individuals but
between their families. This was in the sense that the prospective husband’s
family participate in the finding of the wife, entire family participated in the
contribution of the bride price, the entire husband’s family participated in the
discussion with the prospective wife’s family. Also the whole family participated
in the marriage ceremony.
-Where the woman could not conceive this was the entire family issue thus the
family will have the husband to have the new wife who will bear children and
children born out of the new wife belong to the first wife.
5. There was payment of dowry (bride price). This was present mostly in the
patrilinear societies. This was one of the fundamental characteristics of marriage
in the sense that marriage was not valid and was regarded as concubinage if the
dowry was not paid.
Reasons for the payment of bride price

-Bride price was paid so as to legitimize children thus children born out of that
marriage to be legitimate.
-To transfer wealth from one family to another family. Given the condition that
one family feel like loosing a member of the family who was the source of labour.
-The payment of bride price also enables the husband to acquire the rights from
the wife for example consortium rights, sexual rights and damages from adultery
thus the husband has authority to demand damages from a person who make
sex with his wife.
-The bride price gave the husband authority and rights over all children resulted
from the marriage not withstanding conceived from another man. There was a
10
concept that children born out of wedlock belong to the maternal family this was
also provided under the Customary Law Declaration Rules GN 279 of 1963 Rule
78. The case of Amina Rashid v. Ramadhani provides to the effect that children
born out of the wedlock belong to the maternal and children born during the
subsistence of the marriage belong to the husband notwithstanding that the
woman conceived from another man.
6. Marriage ceremony was part and parcel of valid marriage in pre-capitalist

African societies. Marriage without ceremony was invalid. The feature of
marriage ceremony was an overwhelming issue of the whole society.
7. Marriage was one sided exclusive sexual right of a husband in respect of the
wife. The wife was supposed to be tied to one husband only. If the wife commits
adultery then the husband was entitled to demand damages.
8. Often time’s customary marriages have been polygamous or potentially

polygamous thus there is a room to get many wives and the wives were tied to
one husband only. They were potentially polygamous in the sense that the
husband may marry one wife but he was having a chance to marry another wife
or wives at his option.
9. The function of the marriage was to forge wider links and alliances. This was
due to the fact that the pre-capitalistic African societies were very small and
nomadic in nature therefore there was a need to forge to wider links and
alliances.
10. At first marriages were endogamy in nature thus marriage among family
members but later on it changed to exogamy where by they could marry from
other families. Nowadays the concept of endogamy has been prohibited under
Section 14 of the Law of Marriage Act of 1971.
2.2 Types of Customary African Marriages.

i. Polygamous marriage; in this type of marriage there were two forms thus
polygamy and polyandry.
a). Polygamy in this kind of marriage the husband was having more that one
wives at the same time. Most of the pre-capitalist African societies were
polygamous and potentially polygamous. They were potentially polygamous in
the sense that the husband may marry one wife but he was having a chance to
marry another wife or wives at his option and when he marries another wife he
became polygamous.
11
The rationale behind polygamous type of marriage was that to enable the man
have more labour power and the biological factor that to provided adjustment if
the husband and the wife could not bear children.
b). Polyandry in this kind of marriage a woman has more than one husband at
the same time. This was not the most common type of marriage but it was
practiced in Central Africa. In Musoma the woman could marry another woman
but this did not involve sexual contact.
ii. Leviratic marriages

This type of marriage happen where the husband died and leaves the woman so
young so members of the family of the deceased husband choose another
member of the family to marry that woman in the name of the deceased
husband. Children born out of that marriage became of the deceased and bear
his name. This type was and is still in common in the lake zone. The wife was not
compelled to accept remarry; she could refuse to be remarried on the condition
that the bride price will be refunded back. The rules have now changed under
GN no 279 of n1963 Rule 62 if the woman does not want to remarry she has two
options; she can either remain in the family of the husband as an independent
member of the family or she can return to his family and no need tom return the
bride price.
iii. Ghost marriages

This type of marriage happen when the man died before attaining the age of
marriage or attained the age of marriage but he did not marry. The family chose
the man to marry the wife in the name of the deceased and bore the children in
his name. The rationale behind this was that the family did not want to loose the
name of their son and get the kin who will inherit his estate.
2.3 FORMS OF PRE-CAPITALIST AFRICAN SOCIETIES

i. Patrilinear Societies
This is the society where a husband plays a predominant role or predominant
part as far as family issues are concerned. This means the rule of the father and
marriage was a necessary aspect to link a father and his children. In these
societies all children belong to the father. In Tanzania they form 80% of all the
societies. In England for instance up to the year 1992 women were having no say
to their husbands and the husband was free to demand sexual intercourse with
his wife at any time and wherever as per the case of R v.R1. Also it was the right
of the husband to chastise the wife, however after the enactment of the Law of
Marriage Act of 1971 the condition changed and it is criminal offence to do so
under Section 66 of the same Act.
1
[1992] AC 559
12
ii. Matrilineal Societies

As opposed to the patrilinear societies matrilineal societies are the societies
where the woman played a predominance role as far as family issues are
concerned. In Tanzania they form 20% of all the societies for example the Mwera,
Makua, Zaramo, Kaguru, Luguru, Dunda, Doe and Ngulu. There were other
societies which were matrilineal societies which later moved to matrilineal
societies like Sambaa, Pare and Digo. Also there were some patrilinear societies
with some elements of matrilineal societies like Sukuma. In matrilineal societies
men moved tom women families so far as marriage is concerned. Children
inherited from their mother’s lineage thus succession fall under mother lineage
in maternal uncles.
Matrilineal societies were exogamous and this was extended not only not to
marry member of the family but also not to marry member of the clan. The bride
price obtained out of the matrilineal went to the mother family instead of the
father to accept the bride price uncles accepted the same.
2.4. STATE INTERVENTION IN FAMILY LAW DURING COLONIAL

PERIOD
During pre-colonial period marriage was regulated by clan. During colonial

period state starts to intervene and regulate family law through legislation. In
Tanganyika the Tanganyika Order in Council was enacted in 22 nd July 1920 it
established the High Court and Subordinate Courts which were vested with
criminal and civil jurisdiction. Article 24 of the Tanganyika Order in Council
provides to the effect that “customary law was applicable to all civil and criminal
courts with the exception that when the customary law was inconsistent with
justice and morality”. There were native courts which were chaired by chiefs and
their appeals went directly to District Officer.
A) TREND OF COLONIAL JUDGES ON AFRICAN MARRIAGES

In order to understand their views it is important to know how the colonial
judges defined marriage under English law. The concept of marriage as far as
English law is concerned was summarized in the case of Hyde v. Hyde1 in that
case marriage was defined as “ a voluntary union between a man and woman
which is intended to last for life”. From this definition we get three essentials of
marriage thus;
-firstly marriage should be between a man and a woman as distinguished from
African marriages where polygamy was allowed.
-A marriage was to be voluntary and
1
(1866) LR1 P & D 130
13
- It must be intended to last for the rest of the life of the couples.
These elements were followed by English judges even when they were deciding
on African marriages. However there was no uniformity in the views of African
judges. These colonial judges tend to adduce the English law of marriage to the
African marriages as here under shown;
In Rex v. Achoda, the colonial judge was to decide on the concept of African
marriage. In this case Achoda an African was charged of murder and stealing
from one Indian. Several pieces of evidence adduced in court but they needed
corroboration and the only person to give corroboration was his wife. The wife
was reluctant to give such corroboration basing on the principle of
compellability. In deciding in this aspect the judge refused to accept the
argument of the wife and noted that to him African marriages were not
marriages because there was no voluntariliness and they were not between one
man and a woman.
In Rex v. Ouma Achala1, in this case Judge Carter comes out with an interested
view about African marriages which overrule the decision of Rex v. Achoda. The
Judge was of the view that when interpreting African marriages regards should
be made to the local circumstances thus marriages should be interpreted
according to the African context.
However in 1917 Uganda amended the law of Evidence in respect of

compellability principle and provided specifically that for a couple not to be
compellable they must be on a monogamous marriage. In other East African
jurisdictions no amendments were made but colonial judges went down with
their trend.
In the case of R v. Amkeyo2, Hamilton, J insisted on the concept of marriages as

applicable in English law as summarized in Hyde v. Hyde. He said that “‘a
customary marriage’ was not ‘real marriage’ but rather a wife purchase as such
marriage as such marriage could not be equated to civilized marriages”. Lord
Hamilton in this case also attacked the concept of parental consent in customary
marriages saying that a woman is not a free contracting agent but is regarded
rather in the nature of chattel, for the purchase of which a bargain entered into
between the intending husband and the father or nearest man relative of the
woman. To him using a word marriage to the Africans was a misnormal the
correct word was a wife purchase, since African women are not free agents were
1
(1915) ULR 152
2
(1917) 7 EALR 14
14
like chattels this was so because women were not free to decide as bargaining
took place in their absence and the husband could purchase more wives.
This position was settled in the case of Mawji v. R1, in this case the Privy Council
emphasized the point that marriage means monogamous marriage and restate
the principle of the case of Hyde v. Hyde2 but the court went in confining that
this was as far as English law was concerned and when deciding in African
marriage cases regard should be made to the local circumstances thus in the
customary and Islamic laws applicable in that time.
It should be noted that although the colonial state interfered with the concept of
marriage as opposed to the pre-capitalist era African customary marriages
survived up to now.
B) THE POSITION OF COLONIAL JUDGES ON ISLAMIC MARRIAGES

Their views were just the same as inn customary marriages. Islamic marriages
were recognized by the Tanganyika Order inn Council and the Zanzibar Order in
Council for those East Africans residing in Mombasa which at that time was part
of Zanzibar. Special courts were established to deal with Islamic marriages these
were called Kadhi Courts.
Despite all these recognitions courts of Tanganyika. Kenya, Zanzibar and

Uganda were reluctant to recognize Islamic marriages. Judges said that they
were not competent to deal with Islamic marriages because they were not taught
to deal with Islamic law they were taught English law.
In order to remove this confusion Kenya enacted Mohammedan Marriage

Divorce & Succession Ordinance to compel the judges to recognize Islamic law
and marriages. It was specifically provided that the High court of Kenya was
competent to enforce Islamic laws. In Tanganyika there was another problem
thus Asians marriages especially for those Asians who were non Christians this
problem was noted in the case of Fatma Bacho v. Majothi3 ,where the court said
that it has no jurisdiction to entertain cases arises out of non Christian Asians.
Christian marriages were recognized under the Christian Marriages Act.
1
[1957] AC 126; 23 EACA, 609(T)
2
(1866) LR 1 PD 130
3
(1946)
15
3. EFFORTS FOR THE UNIFICATION OF CUSTOMARY LAW AND FAMILY

LAW IN TANZANIA.
In order to cure the effects left by colonial state there was a need unify the
customary law and family law. Customary law was codified and put under the
Government Notice no 279 of 1963; this became official customary law in
Tanzania. Rule 3 of this Declaration of Customary law bride wealth was declared
no longer necessary for the validation of a customary marriage.
There was also unification of family law, after independence the government
initiated efforts to unify family law. This was due to the fact that during colonial
period Christians were having their own Statute the same to Muslims and
Asians. In 1969 via the White paper no 1 it was recommended that a one uniform
law which regulate family issues or marriage issues should be enacted. As a
result the Law of Marriage Act of 1971 was enacted. The Act was meant to
accommodate all types of marriages contracted under such multiplicity of law. It
was a uniting law that was required to eradicate the multifunctional laws of that
time (footnote). This Act of parliament recognizes different systems of
marriages such as Islamic, customary and Christian marriages. The Act also took
the principle in Hyde v. Hyde1 but only for Christian marriages. Following the
amendment of the Judicature and Application of Laws Ordinance by virtue of
Section 9(3) which states that “notwithstanding the provision of this Act the rules
of customary law and the rules of Islamic law shall not apply in regard to any
matter provided for under the Law of Marriage Act”. The LMA attained
overriding status over Islamic and customary law. For instance Section 41(a) 2
removed payment of dowry as a necessity for the validation of the marriage, the
Section states that “a marriage which in all respects complies with the express
requirement Act shall be valid for all purposes, notwithstanding any-compliance
with any custom relating to dowry or the giving or exchanging of gifts before or
after marriage.”
The Act has 167 Sections and is divided into eight parties’ namely part I provides
for the preliminary provisions, part II deals with marriage its nature, restrictions
on marriage, preliminaries to marriage, contracting of marriage and void
ceremonies, voidable marriages ad legitimacy, part III deals with registration of
marriages, annulments and divorces and evidence of marriage, part IV provides
for the property, rights, liabilities and status of the parties to the marriage, part V
deals with miscellaneous rights of action, part VI deals with matrimonial
proceedings, part VII provides for the offences relating to family law and part
VIII provides for miscellaneous provisions.
1
(1866) LR 1 PD 130
2
Law of Marriage Act Cap 29 [RE 2002]
16
4. FORMATION AND NATURE OF MARRIAGE

4.1 Marriage as a contract
Marriage is similar to other contacts thus commercial contracts in terms of
obligation and duties which arises after it has been formed. It is stated that
marriage cannot be differentiated from commercial contracts in terms of
obligations and duties cropping-up after it has been formed1. It creates
bidingness and obligations of which every spouse should do. Under common
law marriage is viewed as an agreement by which spouses enter into certain
legal relationship with each other which creates and poses mutual rights and
duties. There fore marriage is clearly a contract and it presents comparable
problems to commercial contract, for example form and capacity2 and like other
contracts it may be void or voidable. In order for a man and woman to form a
contract of marriage thus to be husband and wife they must satisfy two
conditions; first they must both posses the capacity to contract a marriage for
example competence in terms of age 3 and secondly they must observe necessary
formalities. Capacity to marry is determined by the law and as a general rule lack
of capacity to contract a marriage renders the marriage void.
There are differences between marriage and commercial contracts in the

following aspects; the law relating to the capacity to marry is quite different from
that of any other contract for example the person under the age of eighteen is
eligible to marry under Section 13 of the Law of Marriage Act 4 while under the
Law of Contract a minor thus the person under eighteen years is not eligible to
make a contract5. Also a marriage may only be contracted if special are carried
out for example according to the Law of marriage Act6 provides that every
marriage shall be contracted in the presence at least two witnesses. Apart from
these two differences also the grounds on which a marriage may be void or
voidable are for the most part completely different from those, on which other
contracts may be void or voidable, unlike other voidable contracts; a voidable
marriage cannot be declared void ab initio by repudiation by one of the parties
but may be set aside only by a decree of nullity pronounced by court of
competent jurisdiction. A contract of marriage cannot be discharged by
agreement, frustration or breach. Apart from death marriage can be terminated
only by a decree of dissolution (or divorce) pronounced by a court of competent
jurisdiction. Lastly but not least marriage is unlike any other contract, in that its
terms are laid down by the state and not by the parties themselves. These are
1 Cretney, S. M (1992). Elements of Family Law. (2nd ed). London: Sweet & Maxwell. P 1
2 Bromley, P.M. & Lowe, N.V. (1992). Family Law (8th ed). London: Butterworth p 22
3 Section 13(1) of the Law of Marriage Act [RE 2002]………… marriage desirable.
4 Ibid
5 The Law of Contract Act section 11
6 Section 27
17
some of the differences between marriage and commercial contracts there might
be other differences.
4.2 Contracts to marry

A marriage is often, although by no means invariably, preceded by a contract to
marry or a promise to marry. The contract to marry is sometimes referred to as
engagement. It is after the fulfillment of this promise to marry that the parties
will have a marriage contract. A contract to marry is an agreement where parties
agree to undertake or make a marriage in the near future or a reasonable future
time after the agreement. It is no more than an agreement between prospecting
spouses that they will marry at some (often unspecified) future date. As a general
rule under common law these agreements are regarded as contracts and they are
governed by the same rule of laws as other contracts, provided there was an
intention to enter into legal relations and their legal consequences are not
different from commercial contracts where the party in breach may be sued for
damages. But as a result of their highly personal and non-commercial nature,
they posses certain peculiar characteristics.
Under common law the contract to marry usually takes the form of mutual
promise to marry, so that each party’s is the consideration for a reciprocal
promise made by the other. But so long as a promise to marry is supported by
some kind of valuable consideration, it will be enforceable even though the
promisee did not in turn make an express promise to marry the promisor. This
was emphasized in the case of Harvey v. Johnston1 ,where it was held that the
defendant could be sued on a promise to marry the plaintiff made in
consideration of the plaintiff going to Ireland at the defendant’s request to marry
him. There is no particular form which is required for a contract to marry. The
contract to marry must be distinguished from other personal relationships in the
fact that in a contract to marry there must be marriage objective.
The Law of marriage Act position in relation to the contract to marry match to
that of common law in the sense that it recognized the right to damages for the
breach of promise of the marriage Section 69(1) states that “a suit may be brought
for damages for the breach of a promise of marriage made in Tanzania whether
the breach occurred in Tanzania or elsewhere…”
4.2.1 Capacity to enter into a contract to marry

Section 69(1) (a) provides to the effect that the action for the breach of contract to
marry may not be brought against the party who was bellow the age of eighteen
1 (1848), 6 C. B. 289
18
years of age. This provision seems to contravene Section 13 (1) of the LMA which
provides to the effect that the minimum age for the woman to contract the
marriage is fifteen years. Also Section 13(2) of the LMA the court can grant leave
for a marriage where the parties are, or either of the is below the age of eighteen
years provided that it has satisfied itself that there are special circumstances
which make the proposed marriage eligible. For instance in the case of Shabir
A.M. Virji1 the court grant the leave to marry to the boy of 16years to marry the
girl of 18 years on the ground that the two love each other and the boy
impregnated the girl. Section 69 of the LMA is meant to protect minors who may
enter into promises with adult for they are considered unable to give judicious
decision.
The same position is observed under common law whereby the capacity to enter
into a contract to marry is governed by the general law of contract. In common
law the fact that the plaintiff was an infant when the contract was made does not
affect his right to enforce it as per the case of Holt v. Ward2.On the other side if
the defendant was infant, he could not be sued during his infancy as it was
stated in the case of Hale v. Ruthven3.
4.2.2 Limitation of actions for the breach of the promise to marry

The Law of marriage Act4 by virtue of Section 70 provides for the limitation
period for the aggrieved party to bring an action for the breach of the promise to
marry, according to the Section the limitation period is one year. The Section
states that “notwithstanding the provisions of any law regulating limitation of
actions for the time being in force, no suit shall be brought for damages for the
breach of a promise of marriage more than one year after the date of the breach.
4.2.3 Breach of the contract to marry

The breach of a contract to marry occurs where one party to the contract failed to
do what he or she has promised to do at affixed date or any other reasonable
date. As in the case of commercial contracts breach of the contract to marry
breach of the contract to marry may take the form of either non performance
when the time for performance has arrived or of an anticipatory breach before
the time of performance. The breach by non performance may occur for example
when the contract is to marry on a certain day and the defendant fails to turn up.
Also if no specific date was fixed for the wedding the presumption is that the
marriage will take place within the reasonable time and consequently either
party may call upon the other party to perform the promise at any convenient
1 [1971] H.C.D. NO. 407. HC

2 (1732), 2 Str. 937
3 (1869), 20 L.T. 404
4 Cap 29[RE 2002]
19
time as per the case of Harrison v. Cage1 . But before the aggrieved party brings
an action for the breach of the promise to marry by non performance he must
show that he asked the defendant he must show that he asked the defendant to
marry him and that offer was refused2.
Anticipatory breach of the contract to marry occurs where the defendant

repudiates his contractual obligation before the contractual date for the
performance has arrived and makes clear that he or she has no intention of
carrying it out when that time arrive. After such repudiation the plaintiff has an
immediate right of action and he or she need not wait for the contractual time for
the performance before he or she sues. Cockburn, C.J in the case of Frost v.
Knight3 states that: “The promisee has an inchoate right to the performance of
the bargain which becomes complete when the time for the performance has
arrived. In the meantime he has a right to have the contract kept open as a
subsisting and effective contract”. In this case the defendant promised to marry
the plaintiff after his (defendant’s) father died. He repudiated the contract during
his father’s lifetime and the plaintiff sued immediately. It was held that the
plaintiff could recover. Therefore the repudiation gives the plaintiff an
immediate of action and he or she need not wait for the contractual time for the
performance before he or she sues.
Anticipatory breach may also occur when the defendant by his own act make it
out his control to perform the contract of the promise to marry for example if he
marries someone other than the plaintiff, the latter has an immediate cause of
action4.By doing this act the defendant has breached the contract as if he had
done so expressly in words.
4.2.4 Remedies for the breach of contract to marry

The law allows the aggrieved party to sue for remedy and the plaintiff’s sole
remedy is an action for damages.
A) In the English law equity did not obviously grant specific performance of the
contract to marry. In the issue of damages the contract to marry differs radically
from commercial contracts; for whereas the general rule is that the plaintiff may
recover compensation only for material loss, in the case for the breach of promise
to marry the plaintiff may also claim exemplary damages. Various cases have
stated that the rule as to the remoteness of damages is the same as to the law of
contract generally, and the plaintiff in the case of the breach of the promise to
marry will recover only for that loss which he would not have suffered had the
1 (1698), I Ld Raym. 386: Caryhew 467 see also the case of Potter v. Deboos (1815), I Stark. 82
2 Gough v. Farr (1827) , 2 C & P. 631, 632
3(1872), L.R. 7 Exch. 111,114
4 Short v. Stone (1846), 8 Q.B. 358
20
defendant fulfilled his contractual obligations and which was foreseeable

consequence of the breach at the time the contract was made1.
Also under common law the courts award damages not only for pecuniary and
other material loss but also for the plaintiff’s wounded feelings, shame, shock
and loss of pride. This position was provided by Willes, J., in the landmark case
of Berry v. Da Costa2, thus: “The juries are not limited to the mere pecuniary loss
which the plaintiff has sustained, but take into their consideration her injured
feelings and wounded pride (grammar)”.
Therefore under common law the plaintiff may recover compensation for the
following losses;
The loss of marriage opportunity, the plaintiff (at least if the woman is the one
who is suing) she may recover for being deprived of the status of a married
person and also for the loss of support and maintenance as noted by Phillimore,
LJ., in the case of Quirk v. Thomas3 also the fact that the plaintiff was prepared,
for example to sell up her business to marry the defendant is admissible to
increase damages because her loss will be presumed at least as high. However
the defendant may put up in any evidence any matter which tend to mitigate this
loss for example his own ill health4.
Exemplary damages; These are awarded primarily for the compensation of the
plaintiff’s injured feelings, but they may also be intended to punish the
defendant5. Although damages for injured feelings are often referred to as
exemplary damages, they are more properly classed as aggravated or parasitic
damages; these aggravated damages are truly compensatory, being given for the
injury to the plaintiff’s proper feelings of dignity and pride6.These damages will
reflect the parties’ conduct, they will be increased in proportion to the plaintiff’s
feelings, reputation and health. However the defendant may give evidence of the
plaintiff’s bad character to mitigate exemplary damages, and the fact that others
have made imputations against her or that the defendant had good reason for
believing her to be of bad character may also tend lessen damages, as it may
extenuate, although not excuse, his conduct7.
1 Finlay v. Chirney (1888), Q.B.D.494, C.A.; Quirk v. Thomas, [1916] 1 K.B. 516, C.A. ; Riley v.
Brown ( 1929), 98 L.J. K.B. 739
2 (1866), L.R. 1 C.P. 331,333
3 [1916] 1 K.B. 516, C.A
4 In Gamble v. Sales the plaintiff recovered ¼
5 Quirk v. Thomas, [1916] 1 K.B. 516, C.A.; see also Dunhill v. Wallrock (1951), 95 Sol. Jo. 451, C.A.
6 Rogers, W.V.H. (1979) Winfield and Jalowicz on Tort (11th Ed).London: Sweet & Maxwell. p592
7 Smith v. Woodfine (1857), 1 C.B.N.S 660
21
B) The position in Tanzania

In case of Tanzania only damages for actual loss are awarded that is to say
damages to be awarded should not exceed the actual loss suffered by the
aggrieved party. The law requires the party who alleges the breach of the
contract to marry must prove actual loss and that must be proved by actual
expenditure related to the promise. Section 67(1) (b)1 provides to the effect that,
no damages shall be awarded in any suit for the breach of the promise to marry
in excess of loss actually suffered as a result of expenditure incurred as a direct
result of the promise. For example in the case of Mohammed Semunyu v. Sofia
Msangi2, in this case Sofia Msangi sued Mohammed claiming damages for the
breach of the promise to marry for the loss of employment due to pregnancy,
injury of feelings and loss of other marriage opportunities. The district court
entered an exparte judgment and awarded her 20,000/= but he appealed to the
High Court where it was held that Sofia must prove actual loss but they awarded
her a lesser amount. On the injured feelings and loss of marriage opportunities
the court held that this was not applicable in Tanzania.
It should be noted that even in Tanzania no suit can be allowed for specific
performance for a promise to marry; this is provided for under Section 69(3) of
the Law of Marriage Act the Section states that “no suit shall be brought for
specific performance of a promise of marriage”.
4.2.5 Properties of engaged couples

Now days it is common for the engaged couples to own or share properties. As
noted below engagement is not itself a marriage therefore properties will not be
considered as matrimonial assets rather they should be directed to ownership of
each individual. In case the party intends to give the other party a gift the gift
shall be deemed to be the property of the donee unless otherwise proved to the
contrary.
Under common law a man who buys the property with his own money and
conveys the same to his fiancée’s name is presumed to intend to make a gift like
a husband who conveys his property into wife’s name. Common law addresses
the beneficial interests of engaged couples in property they may have bought or
worked on together, allowing the courts to determine such interests as if the
couple had been married. The scope of this section is quite limited, however: it
covers only those cases where an interest arises under the ordinary law of trusts,
and does not give the courts the wide discretion they have in matrimonial cases.
For instance in the case of Bernard v Josephs3 An engaged couple bought a
house and lived in it together; the house was in their joint names, they shared the
1 Law of Marriage Act of 1971

2(1973)
3 [1982] 3 All ER 162, CA
22
initial expenses more or less equally, and the mortgage installments were paid
out of the rent received from lodgers. When they separated two years later, a
woman moved out and a man remained in the house with another woman: The
woman sought an order that the house should be sold and a declaration that she
was entitled to a half share in the proceeds. The trial judge made the order and
the declaration sought (subject to minor deductions), the man appealed. The
Court of Appeal postponed the order so that the man could buy out woman's
interest, but upheld the declaration.
4.2.5 Gifts made in contemplation of marriage or gifts between engaged

couples
The discussion in this subtopic will be on the recovery of the gifts which were
exchanged between the engaged couples before the devastation of their intention
to marry. The ultimate question to be asked in order for the gifts to be recovered
is whether a particular gift was made in the contemplation of marriage thus the
test to be applied must be: was the gift made to the donee as an individual or
solely as the donor’s future spouse? If it is the latter class it will be regarded as
conditional. If it is in the former class, it will be recoverable only in the same
circumstances as any other gift for example on the ground of fraud or undue
influence. Whether a particular gift was given in the contemplation of marriage
is the question of fact to be decided in each case, and indeed all gifts intended to
become part of matrimonial home will fall under this category.
Under common law a gift made in contemplation of the marriage by one

engaged couple are recovered, but not by the party in breach. In the case of
Cohen v. Seller1 , McArdie, J., deal with the converse case where the man broke
the contract, and he held that since he had wrongfully refused to perform his
bargain, he must lose his pledge and therefore he could not recover. The return
of gifts under common law goes also to the return of engagement ring for
instance in the case Jacob v. Davis2 it was held that a woman who has broken the
contract must return the ring, for it is the subject of pledge, given upon the
understanding that a party breaking the contact must return it. From these two
cases we can draw a conclusion that gifts made in contemplation of marriage are
recovered but not by the party in breach. Once the marriage has taken place, gifts
vest absolutely and cannot be recovered if the marriage is subsequently
dissolved3.
The Law of Marriage Act provides categorically that gifts are returned if the
marriage has not been contracted and they were given in contemplation of the
marriage. Section 71 states that: “a suit may be brought for the return of any gift
1
(1926) 1 K.B. 536.
2
[1917] 2 K.B. 532
3
Robinson v. Cumming (1722), Atk. 409
23
made in contemplation of a marriage which has not been contracted, where the
court is satisfied that it was made with intention on the part of the giver that it
should be conditional on the marriage being contracted, but not otherwise”. For
example in the case of Generoza Ndimbo v. Blasidus Yohanes Kapesi1, the
respondent successfully sued the appellant in the Primary Court for breach of
promise to marry and the return of gifts allegedly given to her in contemplation
of marriage. She appealed to the District Court but lost with costs. In the Court of
first instance, the respondent claimed six bags of beans, ten bags of maize, one
sponge mattress, a bamboo basket, a sieve and several other things. Aggrieved
by the decisions of the lower courts the appellant appealed to the High Court. It
was held that “a suit may be brought for the return of any gift made in
contemplation of marriage which has not been contacted. The respondent must
prove to have given the gifts to the appellant on the condition that parties
intended to marry; in this case there was no evidence that the respondent gave
gifts to the appellant with an intention that the respondent would marry the
appellant”. The appeal was allowed. Also in the case of Ngonyani v. Mbuguni2,
it was held that if the person gives gifts to his fiancée upon the agreement that
they shall be returned if the marriage failed to take place, if the engagement
broke then the gift must be returned.
4.2.6 Defences for the breach of promise to marry

In an action for the breach of the promise to marry the defendant can have
several defences. There are general and special defences;
General defences; the defendant may rise any of the general defences which are
common to all actions of the breach of contract. For instance the defendant may
plead that when the contract was made he was an infant or it was illegal. Also
according to the case of Wharton v. Lewis3 misrepresentation or undue influence
will be a good defence in an action for the breach of the promised to marry. In
this case the defendant was induced to contract by a misrepresentation that the
plaintiff’s father would leave her property on his death when in fact he had just
with his creditors. Also it will be a good defence that the contract to marry was
discharged by agreement in Davis v. Bomford 4, it was held that “the
discontinuance of correspondence for a long time will be evidence of discharge
by agreement”. Also the defendant may state that he was a minor at the time of
the making of the contract to marry and the contract was made in contemplation
of an illegal thing. However these defences are applied under common law.
1 (1988) TLR 73
2 [1972] H.C.D. 5
3 (1824) .1. C & P. 529
4 (1860). 6 H & N 245
24
Special defences; the defendant in an action for the breach of the contract to
marry may raise the defence that after entering into the contract with the
plaintiff, he or she discovers certain facts concerning the plaintiff which entitle
him or her to bring the contract to an end. The state of facts which can give the
defendant the defence were stated in the case of Jefferson v. Paskell1 where it
was held by Phillimore, L.J., that “on principle it would seem that there must be
some cases of mental or physical infirmity as it has been decided that there are
moral infirmity which supervening after the promise, or I would add, first
coming to the knowledge of the party after the promise, will justify him or her in
refusing to marry”. Therefore from this statement the defendant will have the
good defence if he can prove the following three elements;
(i) That the plaintiff was suffering from some moral, physical or mental
infirmity for instance the plaintiff’s unchastity (if the plaintiff is the
woman), impotence, vulnerable disease or insanity would be a good
defence.
(ii) The infirmity have the made the plaintiff unfit for marriage. But this is
a question of facts to be determined in each case. For instance in the
case of Jefferson v. Paskell2, Pickford, L.J., noted that, “I think that
there may be tuberculosis existing to such an extent as to make the
woman unfit for marriage, and therefore afford good defence”.
Therefore old findings of the facts which makes the plaintiff unfit for
the marriage not necessary binding the current case.
(iii) The defendant must have discovered the infirmity after the making of
the contract to marry. The defendant must prove that the plaintiff
suffered from the alleged infirmity and not merely that the defendant
reasonably and honestly (though) mistakenly believed that plaintiff
did so. For example in the case of Jefferson v. Paskell, the plaintiff
succeeded because although he had an ample evidence from which he
might reasonably conclude that the plaintiff was suffering from
tuberculosis, the jury found as a fact that she was not suffering from
it3.
The following facts have been held to afford good defences;

(i) That the plaintiff was a loose and immodest person or pregnant by a
man other than the defendant himself. There should be evidence that
the pregnancy is not of the defendant mere statements by the
defendant that the pregnancy is not his will not suffice. For example in
1 [1916] 1 K.B. 57, C.A

2 ibid
3 See also Irving v. Greenwood (1823) 1 C & P. 300 where the defendant contended that the
plaintiff was pregnancy by another man the court ruled that the pregnancy was his and therefore
the defence failed.
25
the case of Irving v. Greenwood1, the defendant refused to marry the

woman they have engaged on the ground that the plaintiff was
pregnant by another man. The plaintiff sued the defendant for the
breach of the contract to marry. The court ruled that, any man who
engaged the girl may breach the contract to marry if he comes to
understanding that the girl has pregnancy of another man. However
for the defendant to be granted the right the court must satisfy itself
that the girl was having a bad behavour and the man rescinded the
contract on the ground of the bad behaviour only. Also the court must
satisfy itself that at the time of the making of the contract to marry with
the girl he did not know that the girl was pregnant. If he knows that
she was pregnant then he has to fulfill the contract, in case of breach
then he has to pay damages to the plaintiff.
(ii) That the plaintiff was the man of bad character Baddeley v. Mortlock2.
(iii) That the plaintiff was a person of violent and ungovernable character
temple and threatened to ill-treat the defendant: Leeds v. Cook3.
(iv) That the defendant was suffering from the vulnerable disease for
instance developing abscess on the breast: Atchinson v. Baker4.
(v) That the plaintiff was suffering from insanity temporal or permanent
but under common law it has been held that the fact that the plaintiff
had previously been of unsound mind and confined in the mental
asylum has been held not to constitute the good defence: Baker v.
Cartwright5.
(vi) That the plaintiff was having an illegitimate child before the making of
the contract to marry. In the case of Bench v. Merrick6, the fact that the
woman was having a child twelve years before was held to constitute a
good defence.
(vii) That the plaintiff was impotent.
The list of facts which constitute the good defence are not confined only to these
mentioned they are many and they depend in the circumstances of each case.
Whereas the fact that the plaintiff was already engaged to another person at the
time the plaintiff promised to marry the defendant have been held not to afford a
good defence7. Also the fact that the plaintiff does not have income that the
defendant thought the plaintiff had ( in the absence of misrepresentation) has
1 (1823) 1 C & P. 300

2 (1816), Hort N.P. 151
3 (1803), 4 Esp. 256
4 (1796), Peak. Add. Cas. 103
5( 1861), 10 C.B. N. S. 124
6 (1844). 1 Car. & K. 463.
7 Beachey v. Brown (1860). E.B. & E. 796
26
been held not to afford the good defence for this is not the infirmity even though
it make the plaintiff les attractive for marriage.
4.3 Nature and types of marriage in Tanzania

The Law of Marriage Act basically provides for two types of marriages thus
monogamous or marriages which are intended to be monogamous and the
second type is those that are polygamous or potentially polygamous1. According
to Section 9(2) of the Law of marriage Act a monogamous marriage is a union
between one man and one woman to the exclusion of all other. Therefore among
the marriage parties to the monogamous marriage no one is allowed to contract
another marriage while the other subsists2. Sections 9(1) define polygamous
marriage as a union in which the husband may, during the subsistence of the
marriage, be married to or marry another woman or women. In this kind of
marriage the husband is allowed contract another marriage while the other
subsists. According to Section 10(2) (a) marriages contracted under Islamic form
or according to rites recognized by customary law in Tanzania, are presumed to
be polygamous or potentially polygamous. Marriage contracted in any other
form will be presumed to be monogamous, unless the contrary is proved3.
The law of Marriage Act provides for the conversion of marriages, thus married
parties who wish to convert their marriages are given opportunity to do so. This
is provided for under Section 11. Section 11(1) (a) and (b) states that a marriage
contracted in Tanzania may be converted from monogamous to potentially
polygamous, and if the husband has one wife only, from potentially polygamous
to monogamous by declaration made by the husband and wife, that they each, of
their own free will, agree to the conversion. The declaration of conversion of
marriage shall be signed by the husband, the wife and the person to before
whom it is made at the time of its making, it must made under the presence of a
judge, a resident magistrate or a district magistrate and shall be in writing.4
The copy of the declaration shall be transmitted to the registrar general 5.
However marriage between two Christians which was contracted in church shall
not be converted from monogamous to polygamous as long as the duo professes
the Christian faith. This is notwithstanding the fact that the marriage might have
been preceded or succeeded by the civil ceremony or any other form6.
1 Section 10(1)
2 The Law of Marriage Act Section 15(1).
3Ibid Section 10(2) (b)
4 Ibid Section 11(2)
27
4.3.2 Preliminaries to marriage

Before the marriage is conducted there are things to be taken into account. Under
Section 18(1) of the LMA prospective marriage parties must give notice of their
intention to marry to the registrar or registration officer at least twenty one days
before the day when they propose to marry. The particulars of the notice are1
a) the name and ages of the parties and places where they reside;
b) the names of the parents of the parties and places where they
reside;
c) the statement that parties are not within the prohibited
relationships;
d) where the intended wife is below the apparent age of 18 years, the
name of the person, if any, giving consent marriage or the reason
why no such consent is being given.
e) a statement in relation to each party that that he or she is a bachelor
or spinster, married, widower or widow, or divorced, as the case
may be and where either party is divorced, particulars of divorce;
f) a statement that the marriage is intended to be monogamous or
polygamous or potentially polygamous character, as the case may
be
g) where the marriage is to be polygamous, the names of the wives of
the husband;
h) the date when and the place where the parties desire to marry; and
i) where both the parties are Christians and it is intended to celebrate
the marriage in church in Christian form, a declaration by the
intended husband that he is not already married to another
woman.
The notice of intention to marry shall be signed by both parties and where the
consent of the court to the intended marriage was obtained then the notice shall
be accompanied by a certificate copy of the court’s order giving consent.
Once this notice has been given then the registrar shall cause the notice to be
published as per Section 19. After publication of the notice any person may raise
objection if any2; for example he or she knows the facts which under the Law of
Marriage Act which constitute an impediment to the intended marriage. Where
the man is married under polygamous marriage his wife of other wives may give
notice of objection to the registrar that; having regard to the means of the
husband taking the second marriage is likely to cause hardships to the family, or
the intended wife is of notorious bad character or is suffering from an infectious
1 The law of marriage Act, section 18(2)

2 Ibid Section 20
28
or otherwise communicable disease or is likely to introduce grave discord

(dispute) to the household.
If there is an objection then the marriage cannot be conducted until the objection
has been withdrawn or dismissed. If the notice was not withdrawn then the court
or the board as the case may be shall determine the objection by calling the
parties to the intended marriage and the objector, the court shall hear them and
their witnesses if any and any other person the court may think necessary for the
just determination of the objection. Then the court or the Board shall make
findings on the fact alleged in the notice of objection. Then it shall make the order
either the marriage not to be contracted or shall dismiss the objection. Then the
Court or the Board shall send the copy of the findings to the registrar or
registration office1.
If there was no objection or the same has been withdrawn or dismissed then the
marriage will be conducted in any of the form of the marriages thus religious,
civil or customary ceremony.
4.3.4 Forms of marriage ceremonies

Basically there are three forms of marriage ceremonies; these are civil, religious,
and customary marriage ceremonies. Section 25 of the Law of Marriage Act
provides to the effect that a marriage may subject to the provisions of the Act, be
contracted in Tanzania in civil form or in civil form, or where both the parties
belong to a specified religion, according to the rites of that religion; or if the
intended husband is a Muslim, in civil form or in Islamic form;, or where the
parties belong to the community or communities which follow customary law, in
civil form or according to the rites of the customary law.
(a) Civil marriages; these ceremonies are provided for under Section 29 of the
Law of marriage Act, they are contracted in presence of the district
registrar in his office or in any other place authorized by licence issued by
him. In civil marriage ceremony the parties are allowed to add any
additional rite. Also the parties to the marriage can request the registrar to
make an entry in the register whether their marriage shall be
monogamous or polygamous.
(b) Religious marriage; they are of two types Christian marriages and Islamic
marriages.
Christian marriages; Section 25(3) (b) of Law of Marriage Act a marriage

in Christian form means a marriage recognised by Christian faith or by
any denomination or sect of that faith. There are different Christian
denominations notably Protestants, Roman Catholic and Pentecostals. For
1 The Law of Marriage Act, 1971 Section 22
29
the Roman Catholics marriage is monogamous and it is among the seven

sacraments, it is one witnessed by God and it is insoluble thus it cannot be
divorced to death. The same position is shared by Anglicans. For the
Protestants like Lutherans it is a covenant between the two married
parties and God and the marriage is monogamous. The Church never
accepts divorce.
Islamic marriages; Section 25(3) (b) of the Law of Marriage Act marriage in
Islamic form means a marriage contracted in the manner recognised by
Islam or any school or sect of that faith. For Muslims marriage is a
voluntary union between man and a woman or man and women. Islamic
marriages are polygamous or potentially polygamous. There is a room for
divorce under Islamic law where the marriage causes hardships to both
parties. Although Muslims are allowed to marry one up to four women in
order to do so the man must show that; he is capable of maintaining all
the wives, and that he will treat all wives equally and fairly.
(c) Customary marriages; these are mentioned under the Law of Marriage
Act, but the same is not well articulated under the Act. These are
marriages which are celebrated according to customary rites. Usually
these marriages are contracted under the ward executive and divisional
executive officer. These marriages must be the one which is recognised by
customary law and it must take place among the people who observe that
particular custom and tradition.
Note; all marriages contracted in Tanzania need to be contracted in the presence

of at least two witnesses1. The person who qualifies to be witness is the one of the
age of majority and of full mental capacity. The law prohibits the person below
the age of eighteen years or who is unable to understand the nature of the
marriage ceremony by reason of mental illness or intoxication or the person who
does not understand the language in which the ceremony is conducted to be
witness to a marriage2.
4.4 Presumption of marriage

The law recognizes “a presumption of marriage” when a couple have lived
together as wife and husband for more than two years and people around them
have recognized their relationship. They have all the rights of a married couple.
(the author is still preparing the materials)
1 Ibid Section 27
2 Section27(2)
30
5. NULLITY OF MARRIAGES
The law governing nullity of marriages in Tanzania has its base under common
law, the Law of Marriage Act of 1971 provides for the provisions which deal with
nullity of marriages. Part II (e) of the Act provides for the void ceremonies and
voidable marriages. Before reformation the English law governing the nullity of
supposed marriages was base on cannon law. The concept was that though there
was no divorce in church there are circumstances which hinder the formation of
the valid marriage. The difference between divorce and the nullity or annulment
is that in divorce is granted where the valid subsisting marriage is dissolved by
an order of the court of law. While a decree of annulment is to the effect that
there is an initial impediment which prevented the formation of a valid marriage
in its fullest sense. There are two circumstances where the marriage can be
nullity these are where the marriage is void and where the marriage is voidable.
5.1 Differences between void and voidable marriages

(a)A void marriage means that a marriage ceremony did not create a marriage at
all, that it was void ab initio. In brief a void marriage is never a marriage either in
fact or law. Therefore one can say that in a void marriage although the parties
have been through a marriage ceremony, they have never acquired the status of
husband and wife owing to the presence of some impediment. Voidable
marriages are marriages in which though imperfect they are regarded as valid
subsisting marriages until annulled by the court of law. Therefore a voidable
marriage at its inception a valid subsisting marriage
(b)As a void marriage is void ab initio there is no need of decree to annul it. But
for voidable marriages a decree must be sought so as to annul it as the voidable
marriage is valid marriage until a decree of absolute pronounced. In the case of
De Reneville v. De Reneville1, the court ruled that “a void marriage is one that
will be regarded by every court in any case in which the existence of the
marriage is in issue as never having taken place and can be so treated by both
parties to it without the necessity of any decree annulling it: a voidable marriage
is one that will be regarded by every court as valid subsisting marriage until a
decree annulling it has been pronounced by a court of competent jurisdiction”.
(c) If the marriage is void then any person with interest in so doing may take
proceedings to have it annulled. But if the alleged marriage is voidabe then no
one but the spouses may challenge its validity. Save where one of the parties was
below the age eighteen years and consent of the parent or guardian was not
sought, in such circumstance a parent or a guardian can bring a suit to have the
marriage annulled.
1
[1948] 1 All E.R. 56, 60, CA. [1948] P. 100,111
31
5.2 Grounds on which a marriage will be void

Section 38 of the Law of Marriage Act provides for the grounds upon which a
marriage will be void but the Section is not exhaustive.
(a) Where the parties are of the same sex.

This ground is not expressly stated in the Law of Marriage Act but if one
construe critically Section 9(1) which defines marriage as a “voluntary union of a
man and a woman, intended to last for their joint lives”. Expressly states that a
valid marriage in the eyes of the law should be between people of different sexes.
Therefore a marriage will be void if the parties are not respectively male and
female. The fact that a marriage is void if the parties are not male and female
cover the situation in which the person undergone an operation to get the alleged
sex. The operation usually involve hormone treatment, the surgical removal of
the male genital, and construction of artificial vagina, the person who has
undergone such treatment is not treated as a female for marriage purposes. For
instance in the case of Corbett v. Corbett1, the defendant who was called Mr.
Ashley undergone a sex change operation. The operation was successfully and
later she became a successful modal. She was also recognised as a woman for
national insurance and passport purposes. Later on she got married to a man
who did not know all those facts. The court held that she remained a man and
that her marriage to a petitioner was accordingly void. The judge specifically
stated that, “…for the purposes of the marriage law a person’s sex is fixed for all
time at birth’ and that the only relevant tests of sexual identity are biological”.
Also in Talbot v. Talbot2 , a widow went through a marriage ceremony with a
bachelor who was a transpired and the marriage was held to be void.
(b) Absent of true consent

Since marriage is a contract therefore like other contracts, the absence of consent
will invalidate the marriage ceremony. Thus the marriage which is conducted
without the consent of both of the parties is void. The Law of Marriage Act under
Section 38(1) (e) provides to the effect that a marriage shall be nullity where the
consent of the parties was not freely and voluntarily given thereto. In the case of
Bashford v. Tuli3, it was held that “no marriage shall be contracted unless the
parties agree, and if such marriage was contracted it shall be void”. Also in
Hussein v. Hussein4 ,a young woman petitioned for a decree of nullity. Her
evidence (which was accepted by the judge) was that shortly before her marriage
in England, her Egyptian husband-to-be had repeatedly threatened to kill her if
she did not agree to marry him. The judge granted the decree sought: it was
obvious from a document the wife was made to sign, he said, that the husband
1
(1970) WLR 1306
2
(1966) 111 SJ 215
3
(1971) HCD 76
4
[1938] 2 All ER 344
32
was avid of power over the wife (then aged 18), and that he exercised that power
and coerced her.
The Act did not define consent but according to Blackwell English Dictionary
consent is “a voluntary act of a person in the possession and the exercise off a
sufficient capability to make an intended choice to do something proposed by the
other”. Such capability can only be considered to exist in mentally sound, well
informed person. Section 16 of the Law of Marriage Act provides to the effect
that no marriage shall be contracted except with the consent, freely and
voluntarily given, by each of the parties thereto. If one of the person marries
under compulsion or by fraud, or under mistake as to the nature of the
ceremony1or while suffering from any mental defect whether permanent or
temporal, or was intoxicated, so as not to appreciate the nature of the marriage,
the consent will not be freely and voluntarily given2and as the consequence
thereof the marriage will be void for lack of consent. For example in the case of
Buckland v. Buckland3, the petitioner was employed by the British Authority in
Malta as dockyard policeman, he was charged under Maltese law for having
sexual intercourse with a 15 years girl. Although he was innocent of the offence,
his solicitor advised him unless he could be found guilty and be imprisoned for
many years and 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 the annulment due to want of his consent. 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. The marriage
was held to be null and void.
Therefore the marriage will be null and void if the purported consent was given
under insanity, drunkenness, mistake, fear and duress. A marriage will be void if
either party was so insane at the time of the ceremony as to be unable to
understand the nature of the contract he or she was entering to. The test to be
applied as to whether the party was not capable of understanding was laid down
in In the Estate of Park4, thus “Was the [person]…capable of understanding the
nature of the contract into which he was entering, or was his mental condition
such that he was incapable of understanding it? To ascertain the nature of
marriage a man must be mentally capable of appreciating that it involves the
responsibilities normally attaching to the marriage. Without that degree of
mentality, it cannot be said that he understands the nature of the contract”.
Drunkenness will be the same as insanity that the marriage will be void. In the
1 [1938] 2 All ER 344

2 Section 16(2) (a) , (b) and (c)
3 (1968) P 296
4 [1953] 2 All E.R. 1411, 1430, CA.
33
case of Browning v. Reane1, the question before the court was whether insane
person can contract a lawful marriage. The court held that the person with
unsoundness of mind cannot enter into a marriage contract and if he enters into
such a contract the contract will be void.
Mistake will invalidate the marriage where there was a mistake as to the identity
of the other contacting party and secondly if one of the parties is mistaken as to
nature of ceremony and does not appreciate that he is contracting a marriage. For
example in the case of Valier v. Valier2, the husband, who was an Italian and
whose knowledge of the English language was poor, was taken to the register
office by the wife and there 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. Also in Mehta v Mehta3, A UK resident wife went through a ceremony
with a husband, an Indian, in Bombay. The ceremony was conducted in Hindi,
and the wife thought its purpose was to receive her into the Hindu faith; she
learned afterwards that it was also a marriage ceremony. The court granted a
decree of nullity: W had not truly given her consent to any such marriage.
(c)Where there is a valid subsisting marriage

According to Section 38(1) (b) of the Law of Marriage Act, a marriage is void if
one of the parties to the marriage is having another lawful marriage. In Re
Spence4, There was a marriage unfortunately the marriage appeared not to have
been happy and the wife left the husband. She set up a home with another man
and had two sons with him. They went through a ceremony of a purported
marriage. The husband was still alive at the time of the purported second
marriage. The court said that the second marriage was void. The marriage which
is void due to the existence of the valid marriage remains void even if the lawful
spouse died the day after the subsequent ceremony.
The Law of Marriage Act via Section 15(1) provides clearly that monogamous
marriage makes the person incompetent to contract another marriage while the
first marriage subsists. For the polygamous marriage the law states that no man
while married under polygamous or potentially polygamous marriage, shall
contract a marriage in any monogamous form. Furthermore for the avoidance of
doubt the Section 15(3) has put it clearly that no woman who is married, shall
while that marriage subsists, contract another marriage. Section 152(1) prohibits
polyandry in Tanzania and makes it an offence for a woman to marry another
man while the other marriage subsists. In the case of Ramadhani Said v.
1
(1812) 2 Phill. Ecc.69
2
(1925), 133 LT 830
3
[1945] 2 All ER 690
4
[1990] 2 FLR 278
34
Mohamed kilu1 , it was held that “no woman who is still married, while that
marriage subsists can contract another marriage as per Section 15(3) and 152(1) of
the Law of marriage Act, 1971; it is an offence for a married woman to be a party
to a ceremony of a marriage whereby she purports to marry another man”.
(d) Where either party to the marriage is below the age for marriage
According to Section 38(1) (a) of the Law of Marriage Act the ceremony
purporting to a marriage shall a nullity- save where leave has been granted
under subsection (2) of section 13, if the party thereto is below the minimum age
for marriage. The age of marriage in Tanzania are provided for under section 13
of the Act. Thus 18years for males and 15years for females, however the court
can grant leave for persons below the age to marry if each party has attained 14
years and it is satisfied that there are special circumstances which make the
proposed marriage desirable. In the absence of these circumstances and the
marriage is contracted while the party is below the prescribed age the marriage
will be void. In the case of Pugh v Pugh2, A Hungarian girl aged 15, married an
Englishman domiciled in the UK in a ceremony in Austria; the marriage was
valid under both Austrian and Hungarian law in spite of the girl's age. Four
years later the couple went to live in England, and the wife subsequently
petitioned for a decree of nullity. The judge allowed the petition: English law
regulates the marriages of all those domiciled in England and according to
English law a husband could not lawfully enter into marriage with a girl under
16.
(e) If the parties thereto are within the prohibited degrees

The law prohibits marriage within prohibited relationships; these are prohibited
relationship of consanguinity thus marriage between blood relations, such as
parent and a child or brother and sister, it also applies to relations based on
affinity that means created by marriage. Relatives by affinity are called ‘affines’
and consist of the spouse or former spouse and his or her relatives3. The Law of
Marriage Act via Section38 (1) (b) states that a ceremony purporting to be
marriage shall be nullity if the parties thereto are within prohibited relationships.
Therefore marriage between parties within prohibited degrees is void. Section 14
provides clearly that no person shall marry his or her grandparent, parent, child
or grandchild, sister or brother, great aunt or great uncle, aunt or uncle, niece or
nephew. Also Section 14(2) and (3) recognises relationship created through
marriage by prohibiting marriage by grandparent or parent, child or grandchild
of his or her spouse or former spouse, former spouse of his or her grand parent.
The protection is based on the genetic reasons that for there is a high chance of
1 (1983) TLR 309

2 [1951] 2 All ER 680
3 Cretney, S.M (1992). Elements of Family Law (2 nd Ed). London: Sweet & Maxwell. P11
35
mutant genes being present in common in two persons with a close common
ancestor.
According to the Act the relationship of half blood shall be as much as

impediment as relationship of full blood and it shall be immaterial whether a
person was born legitimate or illegitimate1. In Hains v. Jeffell 2 , Mr. Hains
wanted to marry his sister’s daughter on the ground that since she was born out
of the marriage then there is no a bar for his marriage. The marriage was
challenged in court. The court held that Hains states that his sister’s daughter is
illegitimate therefore there is no any legal bar for him to marry the girl. To accept
that proposition is like to accept that Hains can marry his daughter born out of
the marriage because she is illegitimate. This fat will not be accepted. Therefore
Hains cannot marry his sister’s daughter.
Also when the child id adopted he or she became legally the child of the
adoptive parents and therefore ceases to be the child of the biological parents.
Concurrently, the child remains in the prohibited relationship with his biological
parents and their relatives as if he had not been adopted. Therefore a marriage
between people who are brother and sister as a result of adoption is null and
void even if no one knows about the relationship. Furthermore the adoptive
parents and the adopted child considered to be in the prohibited relationship.
The Law of Marriage Act in Section 14(4) provides clearly that no person shall
marry a person whom he or she has adopted or by whom he or she was adopted.
(F) Where the wife was married in Islamic form of marriage and married
during the customary period of iddat.
This is provided for under Section 38 (1) (j) of the Law of Marriage Act which
states clearly that a ceremony purports to be a marriage ceremony shall be
nullity if the wife was a widow or divorced woman prior to marriage, and her
previous marriage having been contracted in Islamic form, she contracts another
marriage during the customary marriage of iddat. Therefore if a woman
contracts a marriage before the expiration of this period the marriage will be
void.
(g) Other grounds which make the marriage to be void are;

- Where there were no two competent witnesses in the marriage ceremony
Section 38(1) (h) of the Law of Marriage Act.
-If the intended marriage is expressed to be of a temporal nature or for a
limited period Section 38(1) (i) of the Law of Marriage Act.
1 Section 14 (5) of the Law of marriage Act

2 (1696) 1 Ld. Raym.68
36
5.3 Grounds on which a marriage will be voidable

According to Section 40 of the Law of Marriage Act a voidable marriages is for all
purposes a valid marriage until it is annulled by a decree of the court. Therefore
of the marriage is voidable, it remains valid until it is formally annulled by an
order of the court, and a decree of annulment can be sought only by one (or both)
of the parties during the lifetime of both. Grounds on which a marriage will be
voidable are;
(a) Non consummation

Section 39(a) (i) of the Law of Marriage Act provides clearly that a marriage shall
be voidable if either party was incapable of consummating it. Incapacity to
consummate the marriage will render the marriage voidable. Historically under
cannon law a marriage was not always finally and irrevocably indissoluble until
the union had been consummated. Once the marriage has been consummated it
became free from nullity on the ground of voidable for the non consummation.
A marriage is said to be consummated as soon as the parties have sexual

intercourse after solemnization, not before solemnization and therefore as per the
case of Dredge v. Dredge1, the marriage is not automatically consummated by
reason of the fact that the parties have had pre-marital sexual intercourse. The
marriage is consummated by the first act of sexual intercourse between the
couple after the marriage ceremony. In order to amount to consummation the
intercourse must be in “ordinary and complete, and not partial and incomplete2”.
Therefore according to this case there can be no consummation if the husband
does not achieve full penetration in the normal sense, nor there consummation if
one of the parties, lacking an organ, has been artificially provided one by surgical
operation3. Also according to Dr Lushington in D v. A4, consummation requires
"ordinary and complete" rather than "partial and imperfect" sexual intercourse,
including erection and penetration but not necessarily leading to orgasm. It
certainly need not result in conception, and the fact that the husband may be
sterile or the woman barren is legally irrelevant.
The necessity of complete intercourse has raised difficulties where the spouses
use some form of contraception. For instance in the case of Cowen v. Cowen5
,the court held that there has been no consummation where the husband had
invariably either worn a contraceptive sheath or practiced coitus interruptus .
However the House of Lords in Baxter v. Baxter6 overruled the decision in
1
[1947] 1 All E.R 29
2
D-E v. A-G (1895) I Rob. Eccl. 279
3
D v. D [1954] 2 All E.R 598
4
(1845) 163 ER 1039
5
(1945) 2 All ER 197
6
[1972] 2 All E.R. 886
37
Cowen v. Cowen by stating that the marriage has been consummated

notwithstanding the husband’s use of sheath, the court pointed out that the
possibility of contraception is irrelevant to the question of consummation.
In the case of W v. W1, the husband was able to penetrate the wife only for a
short period and soon after he entered her his erection collapse. The court held
that “the marriage has not been consummated as there was no full penetration it
was partial”. The fact that the couple has a child does not raise a rebbuttable
presumption that the marriage was consummated because a child can be
obtained by using other means2.
In order for a petitioner to succeed he or she must show that the respondent is
incapable of consummating the marriage at the time of the hearing and the defect
is incurable or even if the operation is possible it is unlikely to succeed. In S v. S3,
A wife had a malformed vagina making full penetration impossible. The medical
evidence was that this could be rectified by a simple operation, though the wife
would still be unable to conceive and her pleasure in the sexual act would not be
significantly enhanced. Husband's petition for nullity was denied: The wife was
not unable to consummate the marriage if surgery was available, and the other
matters were irrelevant. Therefore sexual incapacity is a ground of avoiding the
marriage only if it exists at the time of solemnization and the consummation of
the marriage is still highly improbable at the date of the hearing. In Brown v.
Brown4, it was noted that if the respondent undergoes a successfully operation to
to cure the impediment after the presentation of petition but before the hearing,
he or she is no longer incapax and the petition must be dismissed5.
It should be noted that ejaculation and incapacity of the woman to conceive are
irrelevant in a petition annulling a marriage for non consummation. In R v. R6,
the court held that the marriage has been consummated where the husband was
had been physically incapable of ejaculation after penetration. On the authority
of these cases it is therefore tentatively suggested that the marriage
consummated as soon as the husband achieves full penetration and that
ejaculation is irrelevant. Also in S v. S7, it was held that incapacity to conceive is
irrelevant factor in consummation.
1 (1967) 3 All ER 178

2Clarke v. Clarke [1943] 2 All E.R. 540
3 [1962] 3 All ER 55, CA
4 (1828), 1 Hag. Ecc. 523
5 But see S v. S (1962] 1 All ER. 33 where the court was of the opinion that the relevant date
should be the date of the petition.

6 (1952) 1 All E.R. 1194
7 [1962] 3 All ER 55, CA
38
Incapacity to consummate the marriage may also be due to physiological or

psychological factors. It has been established that in any these cases in ability of
one spouse to consummate the marriage makes the marriage voidable at the
option of the other. Sometimes in these cases where the marriage is not
consummated due to psychological problems the court instead of granting the
decree of annulment will order the party with psychological problems to go and
get counseling.
In a petition for the decree of annulment for non consummation of the marriage
it does not matter how many how many times the couple have sexual intercourse
because consummation base on the first act after solemnization. In P v. P1, in
their 18 years of their marriage the couple have sexual intercourse for only 8
times. The wife petition for a decree nullity in the ground that the marriage was
not consummated. The Court held that if penetration was achieved in the first
day then the marriage was consummated.
(b) Where either party to the marriage willfully refuses to consummate the
marriage
This ground is provided for under Section 39(a) (b) of the Law of Marriage Act.
The Section states that “a marriage shall be voidable if the marriage has not been
consummated owing to the willful refusal of one party to consummate it.” This
ground carries weight upon the proof that the refusal of willful, thus the refusal
shall be without just excuse. In Jodla v Jodla2Roman Catholics husband and wife
were married in a register office, on the understanding that they would not
consummate the marriage until after a church wedding, yet to be arranged. Wife
repeatedly asked husband to arrange the church wedding but he refused to do
so. Wife's petition for a decree of nullity was granted: by refusing to arrange the
religious ceremony which their joint faith required, husband was effectively
refusing to consummate the marriage. Also in Kaur v Singh3 Husband and Wife
were married in a register office, but their shared Sikh religion required a
subsequent religious ceremony to complete the marriage. Husband refused to
arrange such a ceremony and Wife petitioned for an annulment. The Court of
Appeal said Husband's refusal to implement the marriage was tantamount to a
refusal to consummate it, and Wife was granted the decree she sought. However
in Baxter v. Baxter4, it was held that a wife’s refusal to allow intercourse unless
her husband uses a contraceptive sheath was not a refusal on her part to
consummate the marriage.
1 (1964). 3 All ER 919

2 [1960] 1 All ER 625
3 [1972] 1 All ER 292, CA
4 [1972] 2 All E.R. 886
39
(c) Lack of parental consent

The law requires parental consent to the marriage if the girl has not attained
eighteen years. Failure to get the parental consent will render the marriage
voidable. Section 39(c) of the Law of marriage Act provides to the effect that a
marriage shall be voidable if the wife has not attained the age of eighteen years
and consent to the marriage as required by Section 17 has not been given and the
court sees good and sufficient reason to set the marriage aside. This is due to the
fact that the girl at this age cannot give rational decisions. However according to
Section 96 (1) (b) of the Law of marriage Act the decree of annulment under this
ground can only be granted if it is satisfied that the petition was filed before the
girl attained the age of eighteen years. In the case of Ally Mfaume Issa v. Fatuma
Mohamed Alkamu1, the parties were married under Islamic law; the marriage
has lasted for 17 years prior to the institution of proceedings. The father of the
wife did not give consent to this marriage even though he present at the
marriage ceremony. It was held that where consent to a marriage is not given by
a parent, it may be presumed to have been given where it appears that an
unreasonably long period of time has elapsed before steps are taken to correct
the irregularity.
(d) Where either party to the marriage was suffering from venereal disease in
communicable form
This ground is provided for under Section 39(a) (iii) of the Law of Marriage Act,
thus a marriage shall be voidable if either party was suffering from venereal
disease in a communicable form. Sexual transmitted diseases have been placed
under in category also. In the case C v. C, the husband was suffering from
syphilis the wife sought a nullity decree on that ground and it was granted.
There has been a discussion as to whether HIV/ AIDS is a venereal disease for
this purpose but so far as it is a sexual transmitted disease it must be included in
this category though it may be spread by other ways.
(e) Where the wife was pregnant by third party

The law provides clearly that the marriage shall be voidable if the wife was
pregnant by third part2.This is sometimes known as pregnancy per alium. The
husband can petition for the decree of nullity if at the time of the marriage the
wife was pregnant by someone other than himself. The wife must have
conceived before marriage or at the time of the ceremony so as to add up the
ground for voidable marriage3. But if the husband knew of the pregnancy and
kept quiet he will be bared from pursuing this remedy.
1 (1974) LRT No. 67

2 Law of marriage Act Section 39(a) (iv)
3 W v. W (1963) 2 All ER 841
40
(f) Other ground includes either party to the marriage was subject to current
attack of epilepsy. This ground is provided for under Section 39(a) (ii) of the
Law of Marriage Act.
5.4 Bars to a nullity decree

There are factors which may prevent a party to be granted a nullity decree. These
factors apply only for voidable marriages they did not apply in void marriages as
they did not need a decree to put them to an end. The Law of Marriage Act via
Section 96(1) provides to the effect that the court shall have power to grant a
decree of annulment in respect of any marriage which is voidable under the
provisions of section 39. Therefore voidable marriage needs the decree so as to be
se aside. In the circumstance where the bar operated to prevent a party from
being granted a decree of annulment the marriage remains valid throughout the
lifetime of the parties unless terminated on other grounds such as divorce or
death. Bars to a nullity decree are
(a) Lapse of time

Under the law the decree will not be granted if one year has lapse after the
marriage. The aim of this bar is to ensure that the parties’ status is not left in
doubt for too long. This bar is provided for under section 96(1) (a) (i) of the Law
of Marriage Act. There is no power to extend the period even if the petitioner
was unaware of the facts that could made the marriage voidable. However if one
construe clearly section 96(1) (a) the lapse of time is not the bar in the petition of
the annulment decree basing on consummation or willful refusal to consummate
the marriage this is due to the fact that the section names recurrent attack of
insanity, epilepsy, venereal disease in a communicable form and pregnant by a
person other than the petitioner as grounds under which the limitation apply.
(b) Knowledge of the defect

According to the law if the petitioner knew the defect and decided to keep quiet
and decided to take the marriage he or she will be bared form being granted the
decree by the court. Section 96(1) (ii) of the Law of Marriage Act provides to the
effect that the court shall have power to grant decree of annulment in respect of
the marriage which is voidable unless it is satisfied that at the time of the
marriage the petitioner was ignorant of the fact alleged. In the case of Smith v.
Smith1 , in this case after the marriage the woman conceive the child after seven
months. Parents of the husband told him that the child is not his but he insists
that the child was his. One day he asked his wife if it was true that at the time of
the marriage she was pregnant by other person. The wife acknowledges that the
pregnancy was of the other person. Then the husband petitioned for the decree
of annulment. The court held that if the husband knew or he was ought to knew
1 [1948] P 77
41
that at the time of marriage the wife was pregnant by other person and he put
himself in the position that he did not knew and he continue to live and have
sexual intercourse with the wife. The husband is bared from being granted the
decree.
(c) Approbation
The court cannot grant a decree of annulment where it is proved that either party
knew of the defect but conducted himself or herself in such a way that the other
party believed that he or she will not petition for the decree of annulment. Thus
the petitioner ought to have petitioned for the marriage to be set aside but treats
it as legitimate. If this person wants to annul the marriage then the decree may be
denied. For according to section 96(1) (iii) of the Law of Marriage Act the decree
shall only be granted if it is proved that marital intercourse has not taken place
with the consent of the petitioner since the discovery of the alleged fact 1.
5.5 Legal effects of a nullity decree

As noted before a decree of nullity is necessary for the annulment of a voidable
marriage. This is because the purpose of the nullity decree is to declare the
marriage null and void in all purposes. According to section 98(1) of the Law of
Marriage Act provides to the effect that parties to a marriage which has been
annulled by a decree of the court shall be deemed never to have been married.
Therefore the parties are deemed to have been never married at all. Also a nullity
decree did not render children of a marriage which has been annulled
illegitimate as per section 98(1) (a) of the Law of Marriage Act. Other effects are
that a decree of annulment shall not render lawful anything which was done
unlawfully during the marriage or render unlawful anything which was done
lawfully during the marriage. Also the decree did not affect the compellability of
either spouse as a witness in respect of anything done or any privilege in respect
of communications made during the marriage. In addition to that a decree did
not relieve the husband of any debt properly incurred on behalf by his wife
during the marriage.
In Re Spence2, W married H in 1895, but the marriage was unhappy and she left
him. W then moved in with S and had two sons by him; in 1934 W and S went
through a ceremony of marriage, but since H was still alive and W's first
marriage had never been formally dissolved, this "marriage" was void. On H's
death his sons sought to inherit, claiming they had been legitimised by the
marriage, but the court said legitimation could come only through a valid
marriage. Although children born into a marriage subsequently declared void
1 See Pettit v. Pettit (1962) 3 All ER 37, where the husband wanted to petition for annulment on
the non consummation twenty years after the marriage.
2 [1990] 2 FLR 278, CA
42
are to be regarded as legitimate, a void marriage could not bring about any
change in the status of those born illegitimate.
43
6. THE LEGAL EFFECTS OF MARRIAGE
Previously under common law according to Blackstone writing in about 1765,

after marriage, the husband and wife were one person in law: the legal existence
of the woman was suspended and incorporated into the personality of her
husband. She could not make a contract except as her husband's agent, and
although she could commit torts her husband remained jointly liable. A husband
could not make a legal gift to his wife, nor enter into a contract with her;
however, he could leave property to her in his will, because that would not take
effect until after the marriage was ended by his death. The husband was
responsible for his wife's debts, whether contracted during the marriage or
before, and if she committed any crime in his presence it was presumed that she
did so under his direction. As late as 1840, Coleridge J in Re Cochrane1, said
there could be no doubt that "the husband hath by law power and dominion over
his wife and may keep her by force within the bounds of duty, and may beat her,
but not in a violent or cruel manner". The law has changed since then, largely
due to the growing recognition that women (included married women) are
individuals with minds and rights of their own. Husbands no longer have
disciplinary rights over their wives, and husbands and wives are separate legal
persons who can make contracts with one another, sue one another, and commit
crimes against one another, and so on.
Where the marriage is contracted successfully thus there was no impediment as

the ceremony created valid marriage, the marriage creates rights and duties to
the parties of the marriage.
6.1 Duties and rights under the marriage

(1)Duty to cohabit
(2)The use of surname

This is to the effect that the wife has the right to use the husband’s surname.
Under common law the wife is entitled to retain the use of the husband’s name
even after the termination of the marriage either by death or divorce. Also under
common law the husband does not have property right in his surname so as to
enable him to bring an action for injunction so as to prevent his divorced wife
from using the surname. There is one exception thus if the divorced wife is using
the name for the purpose of defrauding the husband or invading some of the
husband’s right2.
1
8 Dow PC 630
2 Cowley v. Cowley [1900] P. 305, CA.; [1901] A.C. 450, H.L. thus if the wife holds herself out as
his wife after he remarried, she may be guilty of libel or slander if the reasonable inference is that
the husband is not legally married to his second wife.
44
(3) Marital confidentiality

Marriage parties have a duty of confidentiality towards one another, and either
can be restrained by injunction from divulging to a third party anything learned
from the other in the course of married life. Thus no party is allowed to expose
any information about the other party obtained during the subsistence of the
marriage, unless he or she is ordered to do so by the court. In the English case of
Argyll v Argyll1, The Duke of Argyll divorced his wife W on the grounds of W's
adultery; W did not contest the divorce, on the understanding that nothing more
would be said about the adultery. The Duke subsequently sold stories to the
newspapers giving intimate details of that and other aspects of W's private life,
and W sought injunctions prohibiting publication. The judge granted the
injunctions sought: not only was disclosure contrary to the undertakings that had
been given earlier, but it was a breach of the confidence presumed to exist
between husband and wife.
(4)The right not to be compelled to give evidence against each other.

The Evidence Act under section 130 provides to the effect a spouse cannot be
compelled to give evidence for the prosecution against the other spouse.
Husband and wife are competent but not compellable witness for the
prosecution in a criminal case involving one of them. Therefore the prosecution
cannot force them to give evidence against each other; the idea behind this is that
if spouses testify against each other that will disturb the peace of the family. In R
v. Pitt, the court held that the wife is a competent but not compellable witness for
the prosecution against the husband. However there are exceptions provided by
the same section thus the spouse can be a competent and compellable witness
where; the other spouse is charged with any sexual offence under chapter XV of
the Penal Code, if the spouse is charged with any offence under the Law of
Marriage Act and if the spouse is charged with or is a party to a matrimonial
proceeding.
(5) Duty to maintain the spouse

Under common law the husband was under duty to maintain the wife during the
subsistence of the marriage subject to any order of the court. This was an
inevitable consequence of the valid marriage. According to the case of McGowan
v. McGowan2, one of the essential obligations imposed upon a married man was
to provide his wife with at least necessaries when they are living together.
In Tanzania the husband is obliged to maintain the wife notwithstanding the

income of the wife. The Law of Marriage Act via Section 63(a) provides that it
shall be the duty of every husband to maintain his wife or wives and provide
1 [1965] 1 All ER 611

2 [1948] 2 All E.R. 1032
45
them with accommodation, clothing and food. Under the section there are
exceptions which relieve the husband from maintaining the wife these are when
the parties are separated by agreement or they are separated by the order of the
court and subject to any order of the court. Section 63(b) provides for the
maintenance of the husband by the wife, the wife shall be under duty to maintain
the husband if the husband is incapacitated from earning a livelihood by reason
of mental or physical injury or illness. However the law provides that the duty of
maintenance must pay regard to the means and station in life of the couple.
Therefore when determining the question of maintenance the court shall put into
account different customs of the community to which the parties belong and thus
the life style of the couple should be taken into account. In Samwel Marwa v.
Wakuru1, the wife who was a housewife petitioned for an order of maintenance
where by she wanted to be paid in cash and in monthly basis. It was held that “it
was not proper to maintain by cash a wife who had never earned a monthly
income.
(6) The right of the wife to pledge her husband’s credit

The wife has the right to take necessaries on credit for herself and for the infant
child of the marriage and the husband is one who will pay. Section 64(1) of the
law of the Law of Marriage act provides for the presumption of the wife’s
authority to pledge her husband’s credit and use other properties for necessaries.
The section provides to the effect that the wife is presumed to have authority to
pledge her husband’s credit or to borrow money in the name of the husband or
to use the husband’s money which are in her possession or control or she can
convert the husband’s movable property into money and use the same for the
purchase of the necessaries. In the law of agency the wife is treated as the agency
of necessity. The presumption is rebbuttable therefore there can be evidence to
the contrary.
Section 64(2) of the same Act provides for the circumstances under which the
presumption shall apply thus; where the husband and wife are living together,
where they are separated under an agreement that the husband will pay
maintenance to the wife and he failed to comply with that agreement, where the
husband has deserted his wife or by his conduct has compelled her to leave him.
Section 64(3) provides that the wife shall have no authority to pledge her
husband’s credit and assume other authority under this section if she lives
openly in an adulterous association. In Nurse v. Craig2, the court held that if the
wife has committed adultery or deserted her husband, that in itself will
terminate the authority of the wife, and if she is receiving alimony or
1 (1975)
2 (1806), 2 Bos. & P.N.R. 148
46
maintenance, that will be prima facie evidence that she is receiving an adequate
allowance from him.
There are circumstances under which the wife cannot pledge her husband’s
credit They are provided for under section 64(4) of the Law of Marriage Act, thus
the authority of the wife may be rebutted if the evidence is adduced which
shows that; the wife was already receiving or sufficient maintenance or had
sufficient means, the wife had sufficient goods so purchased and goods
purchased were excessive in quantity or extravagant having regard to the
husband’s means. In the last point when the wife exercises her authority she
should take regard to the means of life of the husband and his financial capacity.
Under common law the wife may enforce her right to maintenance by pledging
her husband’s credit for necessaries. The term “necessaries” here bears the same
meaning as in the law of contract thus goods or services which are suitable to the
wife’s condition of life and to her actual requirements at the time they are sold
and delivered or rendered. The wife’s authority extends not only to the purchase
of necessary goods, for example food and clothing, but also to the procuring of
necessary services for example board and lodging as per the case of Sandilands
v. Carus1, medical attendance as noted in Harrison v. Grady2 . In Ottaway v.
Hamilton3, the court held that legal advice is a necessary service and thus a
solicitor is entitled to recover costs from a husband on a solicitor and client basis.
There are qualifications for the wife’s authority thus circumstances under which
the wife cannot pledge for the husband’s authority. These circumstances were
summarized in the case of Miss Gray Ltd v. Cathcart4, facts of this case was as
follows the wife was a very rich on her own but she went to a boutique ordered
eight expensive dresses on credit that the husband is going to pay. The husband
refused to pay arguing that the wife has no authority to pledge his credit for the
said goods, the wife was on receipt of the allowance which was sufficient to
maintain her and that she should not exceed it, the order was extravagant.
Mccardid, J, held that “a marriage in itself does not give the wife the right to
pledge husband’s credit it is only a presumed right and only touches necessaries
of life”. The judge went on to note that the presumption of the wife’s authority to
pledge her husband’s credit may be rebutted by showing that;
(i) The husband has expressly warned the supplier (salesman) not to
supply his wife with goods on credit.
(ii) The wife was supplied with sufficient allowance or she
has sufficient means to buy goods without pledging the
1 [ 1945] 1 All E.R.374

2 (1865), 13 L.T.369
3 (1878), 3 C.P.D. 393, C.A,
4 (1922). 38 TLR 562, S 138
47
credit of the husband. In Biberfeld v. Berens1, the court

placed beyond doubt the rule that a wife is not entitled to
pledge her husband’s credit if she has sufficient means of
her own to purchase necessaries.
(iii) The husband expressly forbids the wife from pledging
his credit.
(iv) The order was excessive or extravagant. Thus though the
order was of necessaries of life it was excessive and
regarding to the husband’s income it was extravagant.
(v) The wife has excessive goods of the kind.
6.2 Adultery and the right to compensation

Although the definition of adultery differs in nearly every legal system, the
common definition is that; adultery is sexual relation outside of marriage; it is a
voluntary sexual intercourse between a married person and one who is not his or
her spouse. Therefore a married person is committing adultery when he or she is
having sexual relationship with a person who is not her husband or his wife as
the case may be. Under common law damages for adultery are awarded by the
court on petition under the following principles;
(i) Damages for adultery should not be punitive they should be
compensatory. In Butterworth v. Butterworth2, the court reiterated the
rule that damages for adultery are purely compensatory and can
never vindictive or punitive.
(ii) Damages should be actual loss depending on the value of the
wife. This deals with pecuniary value of the wife. This will
depend upon her fortune, any assistance which she has afforded
her husband in his business, her capacity as a housekeeper and
her ability generally in home3.
(iii) Damages may base on pecuniary loss and value of the wife’s
consortium that he has lost. This depends upon her purity,
moral character, affection and general qualities as a wife and
mother.
(iv) The court must consider injury to the husband’s feelings. Here
the court must look at the proper compensation to the husband
for the injury to the feelings, the blow to this marital honour
and the serious hurt to his matrimonial and family life.
The Law of Marriage Act via section 72(1) provides for the right to damages for
adultery. Thus the spouse being a husband or a wife as the case may be may
bring a suit for damages against any person with whom his or her spouse has
committed adultery. Damages for adultery are only recovered where there is a
1
[1952] 2 All E.R. 237
2
[1920] P.126
3
Butterworth v. Butterworth [1920] P.126
48
valid marriage and not concubinage. In an action for claim of damages for
adultery it is not the law that direct evidence of persons caught in flagrante delicto
is the only admissible evidence to prove adultery. Very rarely adultery is proved
direct evidence; the common practice is that is proved by circumstantial
evidence1.
Damages for adultery in Tanzania are only compensatory and not punitive. In
Juma Misanya v. Lista Ndurumai2, the court held that damages for adultery are
awarded on the principle that they are to be by way of compensation for the
husband’s loss and injury, and not by way of punishment of the adulterer for his
misconduct and “mesne profits” are not a head of damages allowed in adultery.
The assessment of the amount of damages to be paid for adultery should be in

the discretion of the court. Section 74(2) (b) of the Law of Marriage Act states
inter alia that damages for adultery shall be in the discretion of the court. The
High Court in the case of Mafuru Magabanya v. Joseph Mulya3 held that in the
question of adultery the court is obliged to pay due regard the question as to
whether the husband and the adulterous wife were living together or apart at the
time of the commission of the adultery. Therefore the issue as to whether the
spouse was living together must be taken into account by the court.
The conduct of the husband or the wife, with whom the respondent committed
adultery with, should be taken into account in the assessment of damages. In
Nyema v. Lupogo4, the court held that in assessing damages the court has also to
take into consideration behavour of the wife of the petitioner with whom the
respondent committed adultery with. The behaviour of the husband should be
taken into account as it could have caused the wife to commit adultery. In Ali
Yusufu v. Chief Makongoro5 the claimant was living inconfrotation with his
wife for two years, and for that time they were separated because the husband
did not want the wife. It was held that in assessing damages in the case like this
the behaviour of the husband should be taken into account.
The court has to take into account the custom and traditions of the community in
which the party to the suit belong. For instance in the case of Gai Ipenzure v.
Sumi Magoye6, the appellant was successfully sued in a primary court by the
respondent in an action for a claim of damages for adultery. The respondent was
awarded ten head of cattle as damages. The appellant’s appeal to the District
1 Gai Ipenzure v. Sumi Magoye (1983) TLR 289

2 (1983) TLR 245
3 (1987) TLR 22 at 23
4 [1971] H.C.D 90
5 (1936) 1 T.L.R. (R) 560
6 (1983) TLR 289
49
Court was unsuccessfully and hence he appealed to the High Court. In the High
Court it was held that section 74(2) of the Law of Marriage Act, 1971 provides
that in assessing damages for adultery, the court shall have regard to any
relevant custom of the community to which the parties belong. Therefore the
figure arrived at appears to be appropriate and in harmony with sukuma
customary law.
The action for the claim of damages for adultery shall be dismissed by the court
of law if the defendant shows to the satisfaction of the court that he or she by the
exercise of reasonable diligence could not know that the person with him or she
committed adultery was married1. In Jumanne Jingi v. Joka Kiduda2, the
appellant in this case failed to show that he was validly married to the woman he
claimed to be his wife and there was evidence that the respondent’s cohabitation
with Mwai Amina Maghuna-the lady the appellant calls his wife-was preceded
by the usual and necessary betrothal preliminaries, including the payment of
bride price. The respondent therefore genuinely believed that he was taking a
free woman. It was held that a suit brought under section 72 of the Law of
Marriage Act, 1971 shall be dismissed if the defendant satisfies the court that he
did not know and could not by exercise of reasonable diligence have known that
the person with whom he or she committed the act of adultery was married.
The case for claim of damages for adultery can be dismissed by the court of law
if it is proved that the aggrieved party consented or connived at the adultery.
This is provided for under section 72(1) (a) of the Law of Marriage Act. Under
common law the position is that the husband cannot succeed in a petition for
damages for adultery if he could not succeed in on a petition for a divorce.
Therefore under common law an action for damages will be dismissed if there is
a bar to a petition for divorce for instance condonation3.
Also according to section 72 (1) (b) of the Law of Marriage Act the action shall
fail if the damages in respect of the alleged have been claimed in a petition for
divorce. The aggrieved party cannot petition for damages for adultery if his or
her marriage as the case may be has been dissolved by the divorce granted by the
court of law. The court has ruled that the husband cannot claim damages for
adultery after his marriage has been dissolved by the divorce granted by the
court of law. In Mwamusiku v. Kanjiki4, the wife deserted her husband shortly
after the marriage. The husband petitioned for divorce and the court granted the
same. After the divorce was granted the wife started to cohabit with another
man. The husband filled the suit for the claim of damages for adultery from the
1 Read section 72(2) of the Law of marriage Act

2 (1984) TLR 51
3 Bernstein v. Bernstein [1893] P. 292, C.A.
4
[1970] HCD 240
50
man who lived with his divorced wife. It was held that the husband cannot
succeed in his claim because evidence shows that his marriage was dissolved one
year before the petition, after that the petitioner found the wife living with the
respondent. If the husband wanted to claim for the damages for the adultery, he
should have not hurried to petition for divorce.
6.3 Right to damages for enticement

Concurrently, the husband or the wife has the right to bring an action so as to
claim damages against the person who has enticed or induced his or her spouse
to leave or desert him or her as the case may be. Section 73(1) of the Law of
Marriage Ac, 1971 provides that a husband or a wife may bring a suit for
damages against any person who has, for any reason, enticed or induced his or
her spouse to desert him or her. In Gray v. Gee1, it was held that an action would
lie at the suit of a wife whose husband was enticed away as well as at the suit of
a husband. The nature of an action for enticement where the husband was the
plaintiff was described by Greer, L.J., in Place v. Searle2:
“It is the duty of the wife to reside and consort with her husband. This is a
duty which she owes to him, and a person who procures, entices or
persuades her to violate this duty commits a wrong towards the husband
for which he is entitled to recover damages; unless the person who
procured, enticed or persuaded her acted from ‘principle of humanity’, to
protect her from husband’s ill-treatment, in which case no action can be
maintained even though it should turn out that the wife’s allegation was
unfounded”.
In order to succeed in an action for damages for enticement one has to prove that
the defendant was positively responsible for the spouse’s living. In Newton v.
Hardy3 Swift, J., stated in an action brought by the wife against a woman who
was alleged to entice away the husband of the plaintiff that:
“The plaintiff must prove that the [husband’s] finally leaving her house
and breaking off consortium… was caused or procured or induced by
some action of [the defendant’s] as opposed to his own voluntary going
in his pursuit of [the defendant]. It comes to this; she must prove that he
was enticed rather than that he was seducer”. Therefore it is not enough to
show that the defendant merely alienated the spouse’s attention and
affection from the plaintiff. This is the question of facts to be adduced by
the claimant that the defendant has enticed or induced the spouse to leave
the matrimonial home. In an action for enticement there is no need of
allegation of sexual immorality between the defendant and the spouse of
1
(1923), 39 T.L.R. 429
2
[1923] 2 K.B. 497. C.A.
3 (1933), 149 L.T. 165, 169
51
the plaintiff. In Place v. Searle1, it was held that there was sufficient
evidence for the court to find an enticement when the defendant, after the
fight with the plaintiff in the presence of the latter’s wife, took her arm
and said to her: “Come on Gwen. We will go,” and then he left with her.
In an action for enticement it is a good defence to show that the plaintiff’ spouse
left the matrimonial home because of the plaintiff’s conduct. Section 73(2) of the
Law of Marriage Act, 1971 provides to the effect that a suit for enticement shall
be dismissed if the court is satisfied that the conduct of the plaintiff has been
such as to justify or excuse his or her spouse leaving the matrimonial home.
Under common law it was held in Berthon v. Cartwright2 it is a good defence
for the defendant that he took the spouse of the plaintiff out of a feeling of
humanity, after the plaintiff’s spouse left because of the plaintiff own conduct.
The assessment of the amount of damages to be paid for adultery should be in

the discretion of the court. The court has to take into account the custom and
traditions of the community in which the party to the suit belong. This is
provided for under section 74(1) and (2) (a). In Mafuru Magabanya v. Joseph
Mulya3, Mapigano, J., held that under the law, damages for adultery or
enticement is in the discretion of the court and in the exercise of its discretion the
court is obliged to pay due regard to any relevant custom of the community to
which the parties belong. Also damages for enticement are compensatory and
they shall not be exemplary or punitive.
6.4 Property rights between married couple

Historically under common law the rule was that a husband had a duty to
maintain his wife, but acquired as his own all her property acquired before the
marriage. Therefore woman's personal property was transferred automatically to
her husband on marriage; her real property came under her husband's control
but remained hers for inheritance purposes. A husband could leave property to
his wife in his will (because that would not take effect until after the marriage
was ended by his death), but could not make a legal gift to her and was
responsible for all her debts, whether contracted during the marriage or before.
However the new position in England which was introduced by the enactment of
the Married Women's Property Act 1882 is that spouses retain their own
property after marriage but have mutual obligations of financial support both
during the marriage and (potentially) after it is ended by divorce. So husband
and wife are treated as two legal persons each with his or her own property
rights. Property owned by either spouse before the marriage remains the
1 [1923] 2 K.B. 497. C.A.

2 (1876), 2 Esp. 480
3 (1987) TLR 22 at 23
52
property of that spouse (subject to any evidence of a contrary intention), and

even property acquired after marriage for instance by earning, purchase, or gift
belongs prima facie to the person acquiring the same, rather than to both of
them. Therefore there is no automatic "community property" rule between
married couples in English law. In Samson v Samson1. A married couple
Husband and Wife disagreed as to the ownership of their wedding gifts, The
Court of Appeal rejected Wife's argument that wedding gifts are jointly owned;
and said the determining factor is the donor's intention. If there is no other
evidence of this, said Hodson LJ, the court may infer that gifts from friends or
relatives of one partner were intended for that partner rather than the other.
In Tanzania section 56 of the Law of Marriage Act, 1971 provides to the effect
that a married woman shall have the same rights and liabilities as a man. Thus
the wife can acquire, hold and dispose of movable or immovable property. The
wife has the right to contract, the right to sue and the liability to be sued in
contract in contract or tort. Under the Law of Marriage Act, properties are
divided into personal or separate property of the spouse and joint owned
property.
Personal or separate property, this refers to property owned by one spouse only
and not by both of them. It is the property which is owned by either spouse
before the marriage and remains the property of that spouse after the marriage
subject to any evidence of a contrary intention, also personal property includes
property acquired after marriage for example by earning, purchase, inheritance
or other gift belongs prima facie to the person acquiring it, rather than to both
husband and wife. Marriage did not prevent spouse from owning, acquiring or
disposing of his or her property during the subsistence of the property. Section
58 of the Law of Marriage Act, 1971 recognizes the existence of the wife and
separate property of the husband, marriage itself does not change the ownership
of property acquired by either party before the marriage. Marriage did not
prevent the spouse from owning, acquiring or disposing property during the
subsistence of the marriage. During the subsistence of the marriage if the
property is acquired in the name of the husband or of the wife there shall be a
rebuttable presumption that the property belongs absolutely to that person, to
the exclusion of the other spouse 2. Also the spouse can give gift to the other
spouse and that action raises a rebuttable presumption that the property belongs
absolutely to the donee3.
Joint property, this refers to the property owned jointly by husband and wife and
including the matrimonial home. It is the property in which the husband and
1 [1960] 1 All ER 653, CA

2 Section 60(a) of the Law of Marriage Act
3 Ibid section 61
53
wife have joint interest in it. Section 2 of the Law of Marriage Act, 1971 defines
matrimonial home to mean a building or part of a building in which the husband
and wife ordinarily reside together. Section 60(b) of the Law of Marriage Act,
1971 states that where during the subsistence of a marriage, any property is
acquired in the names of husband and wife jointly, there shall be a rebuttal
presumption that their beneficial interests therein are equal. During the marriage
the spouses can put their income in the common fund in which they both acquire
a joint interest in the whole fund. This includes the joint bank account in which,
the parties intended to make a common pool of their resources: both husband
and wife paid in their earnings. Where a joint account was supplied with money
from each party so as to be a joint pool it became a joint property belonging
presumably to the parties in equal shares. Jones v. Maynard1, husband a soldier
going on active service gave his wife power to draw cheques on his account. On
their subsequent divorce, wife claimed half the balance in the account, and her
claim was allowed. The judge Said, There was evidence that the parties intended
to make a common pool of their resources: both husband and wife paid in their
earnings (though Husband's contribution was greater) and drew cheques, and
they spoke of "our savings". The wife was therefore entitled to half the balance of
the account and to half the value of various investments purchased from it in
Husband's name.
A matrimonial home is usually presumed to be jointly owned; according to

section 59(1) of the Law of Marriage Act of 1971 no one is allowed to alienate any
estate or interest in matrimonial home by sale, gift, lease, mortgage, or otherwise
without the consent of the other spouse. The consent of the spouse shall be
genuine and free consent. If the spouse transfers the any estate or interest in
matrimonial land without consent of the other spouse then the estate or interest
transferred shall be subject to the right of the other spouse to continue residing in
that matrimonial home until the dissolution of the marriage or when the court
makes an order of separation or for maintenance. In Simon Mapolu Ngereja v.
National Bank of commerce2, Simon Mapolu Ngereja had two wives residing in
the mortgaged house. The court held that the mortgagee took the property
subject to the right of the two wives to continue to reside in the suit premise and
that the purchaser of the land takes the same subject to the same right.
1 [1951] 1 All ER 802

2 Civ Case no 154 of 1991
54
7. MATRIMONIAL PROCEEDINGS
According to section 2 of the Law of marriage Act, 1971 matrimonial proceeding
means any proceeding instituted under part II and part VI of the Act or any
comparable proceeding brought under any written law repealed by this Act, any
court. This means that matrimonial proceeding refers to any proceeding
pertaining to the nature of marriage, violation of the restrictions on marriage,
failure to observe necessary preliminaries to marriage, contracting of marriage,
void ceremonies and voidable marriages. Also matters concerning jurisdiction,
procedures of matrimonial proceedings, declatory decrees, annulment of
marriage, separation and divorce, division of assets and maintenance as between
husband and wife, custody and maintenance of children.
Jurisdiction of courts in matrimonial cases

Jurisdiction means an authority conferred by the statute or some other
instrument to the court, tribunal or person to inquire into a case. Jurisdiction is
the power of the court to hear and determine matters before it. It is the power in
which the court has been vested to decide matters litigated before it. The court
cannot assume jurisdiction which it does not have. The issue of jurisdiction of the
court is the matter of the law. Statute is the one which confers jurisdiction to any
court. Parties cannot either by consent or by any other means confer jurisdiction
to the court. In Mariambai Rajabali v. John P. Curties1 the court held that
parties cannot confer jurisdiction on the court merely by appearing before it.
Even when the court has been vested jurisdiction it must exercise that
jurisdiction according to the provisions of the law.
Section 76 of the Law of Marriage Act of 1971 provides for the original
jurisdiction of courts in matrimonial cases. According to the section, the High
Court, a court of resident magistrate, district court and primary court have
original concurrent jurisdiction to determine matrimonial cases. Section 77
provides for the rights of a person to invoke jurisdiction of the court by
petitioning for a declaratory decrees which includes decree of separation, decree
of annulment and decree of divorce, and application for the maintenance, or for
the custody of infant children or any matrimonial relief.
In determining matters before it the court must start with substantive matters
and then continue with ancillary matters. For example in Tungueni Ndege v.
Haya Mohamed2, the wife petitioned for the division of matrimonial assets and
custody of children. The primary court Magistrate granted the wife’s prayer. It
was held that the primary court magistrate was misdirected by granting the
1 (1968) HCD 120

2 (1977) Unreported
55
prayer for division of matrimonial properties and custody of children while it

has not granted divorce.
8. SEPARATION OF MARRIED COUPLE

The law allows the married couple to separate thus to live apart when it is
proved that the marriage has been broken down. Separation does not end the
marriage thus does not dissolve the marriage therefore the marriage still subsist
what is brought to an end is the duty to cohabit. The purpose of separation is to
give time for a couple to cool down their temper , clear up their mind, sort out
their problem and rethink as to whether they could continue to live together.
8.1 Types of separation

Voluntary separation or consensual consent; Spouses have the right to make an
agreement of separation. The essence of the separation agreement is that the
husband and wife agree to live separate and apart. Section 67 of the Law of
marriage Act of 1971 provides to the effect that parties to the marriage may, by
writing signed by each other, agree to live apart and the agreement may contain
provisions for maintenance, matrimonial property and custody of children. The
agreements made under this section are binding and therefore enforceable. They
are called consensual agreement because it is made by consensus of the husband
and wife. Agreement for immediate separation is lawful and binding but where
the spouses who are living together enter into an agreement to separate in future
the agreement became void as it is contrary to the law and public policy1 because
the intention of marriage is to last for the joint lives of the spouses. Section 67(i)
and (ii) provides to the effect that the court of law has the power to vary or set
aside the agreement upon the application of the parties where it is satisfied that
the circumstances have changed and when it is satisfied that the arrangement are
not in the best interests of the children. In National Assistance Board v. Parkes2,
husband and wife separated by an agreement, in the agreement the wife agreed
that she will not claim maintenance. Later the circumstances changed and the
wife thinks that she needs maintenance. Husband refused to give her
maintenance on the ground that the wife agreed openly in the agreement that she
will not claim maintenance. The court held that the husband should provide
maintenance to the wife because the circumstances have changed and the wife
needs maintenance.
Judicial separation; refers to separation of married couple by an order of the

court. It Section 77 of the Law of Marriage Act of 1971 provides to the effect that
1 Hindley v. Westmeath (1827), 6 B & C. 200; Westmeath v. Westmeath (1830), 1 Dow & Cl. 519,
H.L. That A fortiori an ante-nuptial agreement that the parties will not cohabit after marriage is
void.
2 [1955] 2 Q.B. 506
56
a couple may petition to the court of law for the decree of separation if he or she
has been resident in Tanzania for at least one year immediately preceding the
commencement of the proceeding and is present in Tanzania at the time of the
presentation of the petition of separation. Judicial separation is England is
governed by Matrimonial Causes Act of 1857; the prime purpose of judicial
separation is to relieve the petitioner from the duty of cohabiting with the
respondent. Judicial separation are accounted for in part by petitioners who
desire matrimonial relief but for religious reasons do not seek divorce also
sometimes the petitioner hopes for an ultimate reconciliation.
8.2 Ground for separation

Section 99 of the Law of Marriage Act provides that any married person may
petition the court for the decree of separation on the ground that his or her
marriage has broken down. This is different from the ground of divorce which is
that the marriage has been broken down irreparably thus beyond repair. The
position is different to that of other East African countries. In Uganda the
Divorce Act via section 15 provides to the effect that either party to the marriage
can petition for a decree of separation on the same grounds as applicable in
divorce. In Kenya section 12 of Cap 152 the Divorce Act incorporates similar
provision. Grounds for divorce in Kenya and Uganda are cruelty, desertion and
adultery.
Under common law the decree of judicial separation can be pronounced on the
following grounds; where the petitioner has grounds for a divorce and where the
respondent has failed to comply with a decree for restitution of conjugal rights.
Therefore under common law the grounds upon which the spouse can rely in
petition for the decree of separation are; if the other is in desertion and here
desertion has the same meaning as divorce1, the respondent’s persistent cruelty
note that physical cruelty may be coupled with mental cruelty to found a charge
of persistent cruelty2, assaults and sexual offences by the respondent, the
respondent committed adultery, the respondent is suffering from venereal
disease, and habitual drunkenness or addiction to drugs.
8.3 Common terms in separation

Separations have the following terms;
(i) Agreement to live apart, this is the basic term in all separation
agreements in which each spouse is released from the duty to
cohabit with the other spouse.
(ii) The maintenance of the wife- in which despite separation the
husband will continue to be under the duty of maintaining the
1 Frowd v. Frowd [1904] P.177

2 Goodman v. Goodman (1931), 29L.G.R. 273, 275.
57
wife. The maintenance must be reasonable. Section 67 of the Law of

Marriage Act provides to the effect that the agreement for
separation includes the provisions for maintenance. The court of
law according to section 108(b) has the duty to inquire as to
whether the arrangements made with regard to maintenance are
reasonable. In a petition for the decree of separation the party may
make application for maintenance in court in a petition for
maintenance. In Lucia William v. William Nzoka1 , the wife
petitioned for judicial separation the decree was granted and the
husband was ordered to maintain the wife. The husband appealed
to the High Court on the ground that he cannot maintain the
woman he did not leave with. Mfalila, J., held that “the husband
did not understand the effect of separation decree because since the
decree does not dissolve the marriage the husband continues to be
under duty to maintain the wife.”
(iii) Custody and maintenance of children of the marriage if any. Under
the law the separation agreement must contain the provision for
the custody and maintenance of the children of the marriage if any2
and section 2 of the Law of Marriage Act child includes adopted
child. In a petition for the separation the court may make order as
to the maintenance and custody of children.
(iv) Provision as to the matrimonial property3, the spouses may
obviously make an agreement with regard to the property which
formed their matrimonial home or with regard to their interests in
other property. Clauses giving effect to the agreement on
matrimonial property vary from one agreement to another. The
duty of the court according to section 108 (b) of the Law of
Marriage Act is to inquire as to whether the arrangement as to
matrimonial property are reasonable.
(v) Non-molestation clause, it is normally a term that neither spouse
will molest, annoy or interfere with the other. In order for to
amount to molestation, there must be some act done by the spouse
or on his or her authority. The court has also got the power during
pendency of the petition of the petition or after granting the decree
of separation, annulment or divorce to order a spouse to refrain
from forcing his or her company on his or her spouse and from
other acts of molestation4.
1 (1976) HC in Mwanza (unreported)

2 Section 67 of the Law of Marriage Act of 1971
3 ibid
4 Section 139 of the Law of Marriage Act of 1971
58
8.4 Effects of a separation decree

The principle effect of the decree of separation or of the separation agreement is
that separation releases each spouse from the duty to cohabiting with the other.
Section 111 of the Law of Marriage Act of 1971 provides that the decree of
separation shall relieve the parties of the duty to cohabit and to render each other
help and companionship and, except so far as the decree otherwise provides, of
the duty maintain each other. But the decree did not dissolve the marital status of
the spouses. As a result of this effect;
(i) The decree will prevent a spouse from alleging that the other
spouse is in desertion.
(ii) The decree brings to an end the husband’s access to the wife and
vise versa. Under common law the existence of agreement or
decree may be a defence to a petition for restitution of conjugal
right.
(iii) It ends the wife’s consent to sexual intercourse with her husband.
Under Common law the husband who has intercourse with his
wife against her will may be guilty of rape. In R v. Clarke1, the
husband and wife were separated and the husband forced the wife
to have sexual intercourse with the wife. It was held that the
husband who intercourse with his wife against her will may be
guilt of rape.
1 [1949] 2 All E.R. 448
59
9. DISSOLUTION OR TERMINATION OF MARRIAGE
In Tanzania like in English law a valid marriage may be terminated only by the
death of presumption of death of one of the parties to the marriage or a decree of
dissolution or divorce pronounced by a court of competent jurisdiction. The
difference between these two ways in which the marriage is terminated and
decree of nullity is that decree of nullity terminates a voidable marriage. They
also differ in the sense that death and divorce have no retrospective effect and
that afterwards the parties are still regarded in law as having been husband and
wife up to the moment of the termination of the marriage.
9.1 Death and presumption of death

The death of either party of the marriage ipso facto brings the marriage to an end.
Section 12(a) of the Law of Marriage Act of 1971 provides to the effect that a
marriage contracted in Tanzania or elsewhere shall subsist until determined by
death of either party thereto. After the death of the spouse the remaining spouse
is free to contract other marriage subject to the law. If the wife is a widow in a
marriage which was contracted in Islamic form then she shall not marry until the
expiration of the customary period of iddata. After the death of the husband
notwithstanding any custom to the contrary the wife has the right to reside
wherever she may be pleased and also she has the right to choose to remain
unmarried or to marry another man of her choice. This status of widows in
Tanzania is provided for under Section 67 of the law of Marriage Act
Presumption of death
Section 12 (b) of the Law of Marriage Act, 1971 provides that A marriage,
whether contracted in Mainland Tanzania or elsewhere, shall for all purposes of
the law of Mainland Tanzania subsist until determined by a decree declaring that
the death of either party thereto is presumed. From this Section it is obvious clear
that the decree of presumption of death has the effect of dissolving the marriage.
The presumption of death in law is that a person is deemed to have died if absent
without explanation from his or her usual or last place of residence for a long,
continuous period. The presumption of death arising solely from unexplained
absence is distinguishable from circumstantial proof of death; for example, a
passenger on an airplane that crashed is considered to have died even if no
remains can be recovered. Death by presumption is provided for under Section
161(1) which provides to the effect that the law presumes someone is dead when
the party to the marriage has disappeared for five years or more and the other
spouse does not know the whereabouts. Section 161(1) of the Law of Marriage
Act, 1971 provides that presumption of death arises when in any proceeding,
whether civil, matrimonial or criminal, under this Act it is proved that a person
has not been heard of for five years by those who might be expected to have
60
heard of him if he were alive, there shall be a rebuttable presumption that he is

dead. Under this period of five years nothing must have happened from which
the petitioner as the reasonable person would conclude that the other spouse is
still alive, thus the petitioner must have made all appropriate enquiries. A
decree nisi must be rescinded if the other spouse is found to be still alive. But
once the decree has already being made it became bring the marriage to an end
irrevocably even though the other party appears later.
The petitioner is not entitled to contract another marriage unless he or she

obtains the decree of the court. Section 94 (1) of the Law of Marriage Act, 1971
deals with the power of the Court to grant declaratory decrees one of the decrees
is the decree of presumption of death. Section 94 (2) (e) provides to the effect that
that the court may grant a decree of presumption of death on any person who
can show that his or her spouse is dead. A decree of presumption of death has
the effect of bringing the marriage to an end after 90 days Section 95 (1) provides
that “A decree declaring that one of the parties to a marriage is presumed to be
dead shall, if that party is not in fact dead, operate to determine the marriage as
from a date ninety days from the date of the decree, where no appeal or notice of
appeal, as the case may be, has been filed within that time, or in any other case
on the final determination of the appeal or, where a second appeal lies, on the
final determination of that appeal or on the expiration of the time for giving
notice of appeal”.
Divorce and separation: Their differences

There are differences between divorce and separation. The differences are as
follows;
1. In separation, the husband and wife can make an agreement of separation
while divorce is pronounced by the court only.
2. For the decree of separation to be granted it is not necessary for the court to
prove that the marriage has broken down irreparably what is needed is only to
show that the marriage has been broken down. In divorce decree it must be
shown that the marriage has been broken down irreparably.
3. In separation there is no need to refer the matter to the Marriage reconciliation
Board under section 101 of the Law of marriage Act.
4. The petition for judicial separation can be petitioned in court at any time after
the marriage has been celebrated. Divorce can only be petitioned after two years
Historical Development of English Divorce Law

For a long time divorce was not accepted in England and in Europe because the
church influences. The view of Roman Catholic Church that marriage is a
sacrament inevitably meant that the law relating to marriage would become part
of the cannon law. But later due to reformation and development of secular state
the issues of divorce start to be dealt by the courts of law in England. In 1840’s
61
divorce became issue to be discussed in United Kingdom. In 1850 the Royal

Commission which was appointed to enquire into the law relating to
matrimonial offences establishes the work for six years until 1956 and in 1957 the
Matrimonial Causes Act was passed to give effect to the report of the Royal
Commission in which the Act for the first time permitted divorce a vinculo
matrimonii by judicial process. There were a distinction between a husband and a
wife in that a husband could petition for divorce on the ground of adultery alone
provided that he joined the alleged adulterer as a co-respondent instead of suing
him at common law in criminal conversion while a wife had to prove either
adultery coupled with incest, bigamy, cruelty or two years desertion, or
alternatively rape or unnatural offence. Divorce was granted only to an innocent
party thus it operated as a punishment to the faulty. Divorce was a remedy for
matrimonial wrong hence divorce was not granted if the petitioner was guilty of
connivance or condonation or if the parties has entered into a conclusive
agreement concerning prosecution of the suit.
The East African Position

The law of divorce in Uganda is a product of the old English divorce law which
was in existence in England prior to 1938. Therefore in these two countries there
are matrimonial offences such as the desertion, cruelty and adultery as grounds
of divorce. It is the same concept in Kenya where they accept the old concept of
divorce law under the English law which regards divorce as punishment.
DIVORCE LAW IN TANZANIA

The law of Marriage Act, 1971 under the provisions of Section 99 provides inter
alia for the right of a spouse to petition for divorce thus “Subject to the
provisions of sections 77, 100 and 101, any married person may petition the court
for a decree of separation or divorce on the ground that his or her marriage has
broken down but no decree of divorce shall be granted unless the court is
satisfied that the breakdown is irreparable. The provisions on divorce under the
law of Marriage Act, 1971 are to a greater extent based on the England Divorce
Act of 1969. In Tanzania under the provisions of the Law of Marriage Act
desertion, divorce and cruelty are used only as evidence to prove that the
marriage has been broken down irreparably.
Ground for Divorce

According to Section 99 of the Law of Marriage Act, there is only one ground for
divorce that is the marriage has broken down irreparably. That is the marriage
has been broken beyond repair and the couple cannot continue to live as
husband and wife. Irreparable breakdown of marriage may be established only
by proving one of the facts set out in Section 107 of the Law of marriage Act. If
these facts are not proved before the court then the court cannot pronounce the
decree of divorce, if one of these facts is proved then the court must pronounce
62
the decree of divorce subject to the exceptions set out in the Act. The proof of any
these facts raise the presumption that the marriage has broken down. Although it
is the duty of the court to inquire, so far as it reasonably can, into the facts
alleged and to consider whether those facts, or such of them as are proved, show
that the marriage has broken down; in the case of a petition for divorce, where
the court is satisfied that the marriage has broken down, to consider whether the
breakdown of the marriage is irreparable.1 Therefore practically it is the duty of
the petitioner to establish that the marriage has broken down irreparably, the
respondent has the duty to prove that the marriage has not broken down
irreparably. 2 The facts that prove that the marriage has broken down irreparably
are here under expounded;
Factors to prove that the marriage has broken down irreparably

That for the court to grant a decree of divorce it has to be proved that the
marriage has broken beyond repair. It is the duty of the petitioner to prove that
the marriage has broken irreparably.3It should be noted that in this country, since
the enactment of the Law of Marriage Act, 1971 Tanzanian law with regard to
divorce has radically departed from the English law of divorce which insists on
proof of matrimonial offences such as adultery, cruelty, desertion, etc before
divorce can be granted by the court. The position in Tanzania is that proof of
what is called a matrimonial offence (adultery, cruelty, desertion etc.) would not
by itself entitle a spouse to a decree of divorce, a fortiori failure to prove such
offence would not by itself disentitle a spouse to the decree. What is relevant is
whether the marriage has broken down and in considering this aspect the court
is enjoined to have regarding, not merely to specific offences, if any but to all
relevant evidence regarding the conduct and circumstances of the parties.4
Factors to prove that marriage has broken down irreparably are;
I. Adultery
The first evidence that the petitioner may rely is that the respondent has
committed adultery. According to Section 107 (2) (a) of the Law of Marriage Act,
1971 the court may accept as evidence that the marriage has broken down when
more or one act of adultery has been committed or when adulterous association
is continued despite protest.
Adultery refers to the voluntary sexual intercourse between persons of opposite
1 Section 108(a) and (d), the Law of marriage Act,1971

2 The petitioner’s contentions even though clearly relevant are not conclusive as noted in Ash v.
Ash, [ 1972] I All E.R. 582
3 Halima Athumani v. Maulidi Hamisi (1991) TLR 179 at p 182
4 See Mariam Tumbo v. Harold Tumbo [1983] TLR 293 at p 303
63
sex one of whom is married to a third party.1 Adultery is the sexual intercourse
between two persons of whom one or both are married but who are not married
to each other. For adultery to constitute a ground for a petition the respondent
must have had sexual intercourse with a person other than the petitioner since
the celebration of the marriage.
Nature of the act of adultery; There no need to be full penetration to constitute

adultery but there must be some degree of penetration of the female by the male
organ as it was held in the English case of Dennis v. Dennis2. Any degree of
penetration however slight will suffice.3 As per this case if a man and a woman
are caught together take off their apparel and lay together there will raise a
presumption of adultery and in most cases it will be difficult to be rebutted it but
the inference can be rebutted if the man if found to be impotent.
Adultery must be consensual; in order for the respondent to be guilty of

adultery the act must have been done voluntarily. Therefore a married woman
who is raped does not commit adultery. But where the wife contends that she
did not consent the burden of proving that she there was no consent is on her.4
Standard of proof of adultery; there has been a considerable judicial

disagreement over the standard of proof required where there is allegation of
adultery. As the proceedings are civil one would expect for it to be sufficient to
show that the party was guilty on the balance of probabilities. The controversy
arises where some of the judges spearhead that the standard of proof should be
beyond reasonable doubt these are the judges who treat adultery akin to criminal
offence. 5 But other judges reiterate that the standard should be on the balance of
probabilities like that of the civil proceedings. For instance in Bastable v.
Bastable6, the court held that the law requires a high standard of proof or a
“degree of probability commensurate with the occasion. However the position
stated in this case is vague as it takes an intermediate stand. It should be noted
that in an action for adultery it is not the law that direct evidence of persons
caught in flagrante delicto is the only admissible evidence to prove adultery, it was
noted in Gai Ipenzure v. Sumi Magoye7 that very rarely adultery is proved by
direct evidence; the common practice is that it is proved by circumstantial
evidence.
1 Rutherford, L. & Bone, S. (2003). Osborn’s Concise Law Dictionary (fourth Indian reprint), p 17
2 [1955]2 All E.R. 51
3 Therefore a woman who herself artificially inseminated with another man’s seed without her
husband’s consent does not thereby commit adultery

4 Clarkson v. Clarkson (1930), 143 L.T.775.
5 See Blyth v. Blyth (1966) 1 All ER 524
6 [1968] 3 All E.R. 701,704, CA
7 (1983) TLR 289
64
Adultery as evidence that the marriage has broken down irreparably does not
automatically led to divorce even where it is proved successful the court has to
look at all the circumstances of the case so as to find as to whether the marriage
has broken beyond repair, therefore the petitioner should allege that he or she
found intolerable to live with the respondent. In Cleary v. Cleary 1, it was stated
that, “the petitioner may rely not only on the adultery but also on any other
matter to show that further cohabitation would be intolerable to him”. In this
case the husband took the wife back after she had committed adultery, but she
continued to correspond to with the man in question, went out at night and
finally left him to live with her mother. The husband stated in the evidence that
he could no longer live with her because “there was no future for the marriage at
all”. The court held that he had established irretrievable breakdown of marriage
not withstanding that he found life with her intolerable not on account of her
adultery but on account of her subsequent conduct.
It is difficult to catch people in flagrante delicto therefore the following are some
circumstances in which the court held that there is adultery; spending a day in a
hotel room with a person who is not a spouse2, visiting brothel3, conviction of
bigamy4, cohabitation with a third party, birth of a child with another person,
venereal diseases and confession. However suspicion by itself won’t suffice.
However the court cannot act on a mere allegation there must be irresistible
inference that leads to adultery.
In Mariam Tumbo v. Harold Tumbo5 the petitioner alleges adultery this centers
on the respondent’s cohabitation with the second woman. This was indeed
adultery, the parties’ being a Christians’ marriage which is presumed to be
monogamous. The respondent did not deny this fact; he only pleaded
condonation. Lugakingira J, held that; “I have no hesitation in finding that there
condonation. The petitioner might have initially felt slighted, humiliated and
offended when the respondent took on the second woman. But in the end she
became reconciled to it, and tolerated it, taking no step to register her protest.
And for four years, she voluntarily submitted to the respondents’ embraces
thereby registering her forgiveness. She cannot be heard now to complain.6
1 [1974] I All E.R. 498

2 Raspin v. Raspin (1952) 2 All ER 349
3 England v. England (1953). 2 All ER 784
4 Holington v. Holington ( 1943) KB 587, Kambunga v. Lugaijamu (1972) HCD 19
5 [1983] TLR 293
6 It should be noted that condonation should not be procured by fraudulent misrepresentation on
the respondent’s part; if it is procured by fraud then it will not bar the petitioner from pleading
adultery.
65
II. Cruelty
Either spouse may petition for a decree of divorce on the ground that the
respondent has been guilty of cruelty whether mental or physical, inflicted by the
respondent on the petitioner or on the children, if any, of the marriage. This is
provided for under the provisions of section 107(2) (c) of the Law of marriage
Act, 1971. There is no precise definition of the term cruelty. Among the grounds
for proving that the marriage has irreparably broken down cruelty poses great
difficulties to the students, the reasons are; “legal cruelty” receiving a strict
meaning, and not every act or course of act which would be called cruel in
popular sense amounts to cruelty in law. Also judges have avoided formulating
an exhaustive definition of cruelty. Acts of cruelty are infinitely variable, and no
list can be drawn up of acts which do or may amount to cruelty and those which
do not.1 Conduct which is certain cruel in one case is equally clearly not cruel in
another case because of the existence of other facts or circumstances. Therefore it
is dangerous to use one case as precedent in another case citing similar facts for
what amounts to cruelty in matrimonial dispute before the court of law is a
question of fact.
In Gollins v. Gollins2 it was noted that, “It is impossible to give a

comprehensive definition of cruelty, but when reprehensible conduct or
departure from the normal standards of conjugal kindness causes injury to
health or apprehension of it, it is I think, cruelty if a reasonable person, after
taking due account of the temperament and all the other particular
circumstances, would consider that the conduct complained of is such that this
spouse should not be called on to tolerate.” Therefore the spouse will be guilty of
cruelty if without just cause or excuse he or she persists in doing things in which
the other spouse will not tolerate, and which no ordinary spouse will tolerate. In
Said Mohamed v. Zena Ally3 Cruelty was defined to mean willful unjustifiable
conduct of such a character as to cause danger to life, limb or health, bodily or
mental, so as to give rise to a reasonable apprehension of such danger’. Cruelty is
the ill treatment which the spouse has been subjected by the other spouse, which
cannot be said to be described as the reasonable wear and tear of married life.
It should be noted that the injury suffered may be physical or mental health4. But
But there is no need for the injury to be actually suffered; a reasonable
apprehension of danger is enough to manifest that there is cruelty to prove that
the marriage has broken down irreparably. In Bromley’s Family Law (3rd Ed) at p
95 it was noted that “…there is no need for the injury to be actually suffered: a
reasonable apprehension that injury will result if the conduct is persisted in will
1 Bromley, P.M. (1976). Bromley’s Family Law (5th Ed). London: Butterworths, p 183
2 (1963) 2 All ER 966
3 (1985) TLR 13
4 in other instances the same has been referred to as ‘mental cruelty’
66
suffice, for the court will not wait for the petitioner to be actually injured before
affording him relief.”
The law expects that a marriage bond should not be set aside lightly and
therefore some of the ill treatments in the marriage have been labeled as
reasonable wear and tear of marriage and is accepted between married couple
and it has been held not amounting to cruelty by the courts of law. In such
incidents the marriage has held not been held to have been broken down
irreparably. In Charles Aoko v. Dorina Gibonga1, the court held that two
incidents of beatings of wife cannot be said to have been clear indication that the
marriage has was irreparably broken. They were usual wear and tear of married
life. They did not amount to cruelty in terms of section 102(2) (c) of the law of
marriage Act, 1971, nor did they fall without the purview of section 107 (3) (b) of
the law of marriage Act, 1971.
Some of the acts which amounts to cruelty even though the list is not exhaustive
are; assaults and other forms of physical violence, sexual perversion and
homosexual activities,2 persistent drunkenness, commission of criminal offences
particularly of sexual character3, threats, insults, nagging, humiliation, persistent
dishonesty causing embarrassment in Said Mohamed v. Zena Ally4 the court
held that the appellant’s conduct of not only beating but also undressing his wife
in front of other people generally, and her father in law in particular was an
embarrassing and distressing act of cruelty which inflicted considerable physical
and mental torture to the respondent. In this case the respondent petitioned for
divorce on the ground of cruelty in primary court where she was unsuccessful.
On appeal to the district court she won where upon the appellant decided to
challenge the district court’s ruling in the high court. It was established by
evidence that the appellant was in the habit of beating the respondent. It was in
evidence that the appellant threatened to kill the respondent. Moreover he, once
stripped her naked before other people including her father-in-law. In some
cases the court held that obsessional conduct of various kinds,5 also neglect,
indifference, desertion, boorishness, meanness and willful refusal to provide
maintenance 6are included as acts of cruelty.
1 [1988] TLR 44
2 Arthur v. Arthur (1964), 108 Sol. Jo. 317
3 It should be noted that malpractices in sexual intercourse amounts to cruelty but also it depends
on the circumstances of each case. See H v. H (1964). 108. Sol. Jo. 544
4 (1985) TLR 13
5 Williams v. Williams [1963] 2 All E.R. 994, H.L.; [1964] A.C. 698
6 Gollins v. Gollins (1963) 2 All ER 966
67
III. Desertion
This is another evidence to prove that the marriage has broken down irreparably.
Either spouse may petition for a decree of divorce on the ground that the
respondent is in desertion. Section 107(2) (e) of the Law of Marriage Act, 1971
provides that the court may accept as evidence that the marriage has broken
down when there is desertion of the petitioner by the respondent for at least
three years, where the court is satisfied that it is willful.
Desertion happens where a husband or wife voluntarily and without reasonable

cause leaves the other spouse against his or her will and with the intention of
permanently ending the cohabitation.1 It is separation of one spouse from the
other with the intention on the desertion spouse to bring cohabitation
permanently to an end without reasonable cause and without consent of the
other spouse. But these two definitions lack some aspects because in law these
are simple desertion and constructive desertion. It should be noted that for there
to be desertion in Tanzanian law the deserter must have deserted the petitioner
for three years.
Simple desertion; this is a physical separation whereby one spouse decide to

leave the matrimonial home with not intention of ending cohabitation. In
Mummery v. Mummery2, it was stated that it is not essential that one or other
party should actually depart from the matrimonial home if there is complete
abandonment of all matrimonial duties; desertion is not from a place but from a
state of things.
Constructive desertion; is where one party’s conduct is such to drive the other
party away from the matrimonial home.3 This occurs where a spouse does not
actually leave the house but he or she conducts himself or herself in such a way
that makes the other party to leave the matrimonial home. In Mariam Tumbo v.
Harold Tumbo4, the petitioner alleged desertion. Her case was that her
departure was necessitated by the respondent’s conduct. She was therefore
charging him with what is called constructive desertion. The respondent, on the
other hand, accused the petitioner of being the deserter. The court held that it is
settled that where one spouse behaves in such a manner that the other virtually
compelled to leave, the former may in law be the deserter. It is imperative for
there to be conduct which amounts to dismissal from the consortium. The judge
held that;
“…the petitioner’s departure from the matrimonial home was prompted
merely by incompatibility of temperament and unhappiness in the marital
2
[1942] I All E.R. 107
3
Boyd v. Boyd [1938] 4 All E.R. 181
4 [1983] TLR 293
68
relationship. I have already found, and I need not repeat the facts that she
was the victim of persistent physical and mental cruelty. The conduct of
the respondent, in my view, amounted to dismissal of the petitioner from
the consortium. On the other hand, his persistent invitation to the
petitioner to leave, his apparent pleasure at her departure, and his failure
to induce her to return, are evidence of an intention to bring cohabitation
to an end. Therefore there was both factum as well as animus. Iam therefore
satisfied that the respondent was in constructive desertion and I reject his
counter-charge. Iam aware, though, that under our law desertion is not a
ground for divorce unless it has persisted for at least three years prior to
the presentation of the petition. In this case only one year has elapsed.
Nevertheless, I believe that it was not irrelevant to make findings on this
issue. Since the enactment of the Marriage Act our law has radically
departed from the English law which insists on proof of a matrimonial
offence before divorce can be granted. English decisions have therefore to
be read with analytical care. In this country, proof of what is called a
matrimonial offence (adultery, cruelty, desertion etc.) would not by itself
entitle a spouse to a decree of divorce, a fortiori failure to prove such
offence would not by itself disentitle a spouse to the decree. What is
relevant is whether the marriage has broken down and in considering this
aspect the court is enjoined to have regarding, not merely to specific
offences, if any but to all relevant evidence regarding the conduct and
circumstances of the parties. While, therefore the desertion which has not
persisted for three years may not be a ground for divorce, that only
operates to exclude it, is an actionable ground per se; it does operate as a
bar to considering the circumstances of the parties as a result of it.
Constructive desertion requires both physical separation thus factum and

intention to desert permanently thus animus deserendi. In Buchler v. Bichler1, it
was stated that;
“Incompatibility of temperament and unhappiness in the matrimonial
relationship which is not caused by cruelty are not themselves grounds for
divorce, nor by themselves do they entitle the spouse affected to leave the
matrimonial home and then to claim that the other spouse, even if he or
she is alone to blame for the for the ill-success of the marriage, has been
guilty of the grave matrimonial offence of desertion…constructive
desertion requires both factum and animus, and an indication by the
husband to the wife that she may leave him if she likes (animus) is not
enough unless the conduct is such as to amount to an expulsion
(factum)…mere wish to expel, even if it exists, without acts equivalent to
1
[1947] 1 All E.R. 319
69
expulsion is, in my opinion insufficient to constitute constructive

desertion”.
In this case the House of Lords denied the wife a decree of divorce on the ground
of constructive desertion although the husband’s conduct has no doubt caused
the wife intense unhappiness and was such that no decent man would have been
guilty of it. The husband has cultivated “a very close and remarkable
association” with a man in his service to the extent of losing interests in the
wife’s company and conversation. It was held that the conduct did not justify the
wife in treating it as dismissal from the consortium and in leaving the
matrimonial home. The wife was held the deserter and the husband was granted
the decree.
Given the foregoing scenarios there are four elements in desertion, which are;
physical separation (factum), the intention to desert permanently (animus
deserendi), without reasonable cause and without consent of the other spouse.
Physical separation (factum); there can be no desertion unless there is physical

separation between the spouses. Separation of spouses itself however long it is
cannot dissolve the marriage, marriage can only be dissolve by the court of law
after assessing all the facts of the case. In John Kahamila v. Paschal Jonathan &
Hilda Hosia1 it was held that a marriage may only be dissolved by a court of law
and not by long separation of the spouses. For there to be separation there must
be complete cessation cohabitation. Every case on separation has to be decided
on its own merit thus the court has to look at the conduct of the parties in a
particular case. Thus there are circumstances in which there has been no real
physical separation but the court held that there is desertion for instance when
spouse decided to forfeit conjugal rights thus when they are living as two units
rather than one. The test to be applied is whether the husband and wife are living
as two households or as one?2 In Naylor v. Naylor3, the husband returned home
after the dismissal of cross-petitions for divorce. A quarrel took place after which
the wife indicated that she had no intention of being his wife by removing the
wedding ring, which she never wore again. From that onward the wife did not
perform any marital duties, the husband stopped giving her housekeeping
money, and although they lived in the same roof they lived separately without
any communal or family life. The court held that in the circumstances there was
sufficient separation to sustain a finding that the wife was in desertion.
The intention to desert permanently (animus deserendi); there will be no desertion

unless the deserting spouse has the intention of remaining permanently
1 [1986] T.L.R. 104

2 Hopes v. Hopes [1948] 2 All E.R. 920
3 [1961] 2 All E.R. 129
70
separated from the other spouse. Consequently there will be no desertion if one
spouse is absent on reasons of business, work, holiday or health.
Without reasonable cause; a spouse cannot be held to be in desertion if there is

reasonable cause for him or her to leave the other. The reasonable cause can be
due to circumstances such as illness, work, business or work connected with a
spouse who otherwise would be in desertion; also reasonable cause can be due to
the other spouse’s misconduct. In G v. G1 the husband developed a mental
illness which led him to frighten his children. It was held that that the wife was
entitled to remain apart from him so long as was necessary for the children’s
sake.
Without consent of the other spouse; for there to be desertion the spouse must
have left the matrimonial home without consent of the other spouse. Therefore a
spouse, who has agreed for the other spouse to depart, cannot then complain of
desertion; thus there can never be desertion if the separation is by consent.2
Burden and standard of proof for desertion; the burden of proof lies on the
party who alleges desertion by the other party that is he or she has to show that
there is desertion without reasonable cause by the respondent and he or she has
never consented to the desertion. The standard of proof is that of balance of
probabilities like the one in civil cases.
Conditions to be fulfilled before the court grants the divorce (Limitations to

divorce)
(a) Reference of matrimonial dispute or matter to the Marriage Conciliation

Board
Before filling the petition for a decree of divorce in a court of law the petitioner
she has to refer the matrimonial dispute or matter to a Marriage Conciliation
Board. This requirement is provided for under Sections 101 of the Law of
Marriage Act, 1971. The parties must first go to the board where the board will
try to resolve the matrimonial dispute or matter the parties if it fails, then the
board will issue the certificate to show its findings that the matter was referred to
it and it fails to resolve the matter to the satisfaction of the parties. In Shillo
Mzee v. Fatuma Ahmed3, petition for divorce was filed without certificate from
Marriage Conciliation Board. The court held that in the absence of certificate
from a conciliatory board a petition for divorce becames premature and
incompetent. Also in Athanas Makungwa v. Darin Hassan4, it was held that that
1
[1964] I All E.R. 129. See also Mariam Tumbo v. Harold Tumbo [1983] TLR 293
2 Pardy v. Pardy, [1964] 3 All E.R. 779
3 (1984) TLR 112
4 [1983] TLR 132
71
where there is no certificate within the meaning of section 101 of the Law of
Marriage Act, 1971 from the conciliation board indicating its failure to reconcile
the spouses a petition for divorce becames incomplete.
However section 101 (a) to (f) of the Law of Marriage Act provides for the
exceptions to the requirement of the reference of the matrimonial dispute to the
marriage conciliation board. The exceptions are;
a) Where the petitioner alleges that he or she has been deserted by, and does
not know the whereabouts of, his or her spouse;
b) Where the respondent is residing outside Tanzania and it is unlikely that
he or she will enter the jurisdiction within the six months next ensuing
after the date of the petition;
c) Where the respondent has been required to appear before the Board and
has willfully failed to attend;
d) Where the respondent is imprisoned for life or for a term of at least five
years or is detained under the Preventive Detention Act and has been so
detained for a period exceeding six months;
e) Where the petitioner alleges that the respondent is suffering from an
incurable mental illness;
f) The provisions of Section 101(f) of the Law of Marriage Act also dispenses
with referring the matter to Marriage Reconciliation Board where the
court is satisfied that there were extraordinary circumstances which make
reference to the board impracticable. In Zainat Khan v. Abdullah Khan1,
Onyiuke J considering that phrase inter alia said: “The discretion conferred
on the court by paragraph (f) of section 101 should only be sparingly
exercised and then only in circumstances where it is clear beyond and
reasonable doubt that a reference to a board is not a practical proposition.
However Lugakingira J; Mariam Tumbo v. Harold Tumbo2 held that the
judge Onyiuke J, seem to put the standard of proof to be high by
proposing that the court before exercising its discretion, should be
satisfied beyond reasonable doubt that a reference to a board is not a
practical proposition. I see no justification, and certainly it cannot be
found in s 101, for the departure from a balance of probabilities. The
impracticability may be due to the fact that 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.
1 [1973] L.R.T. 57
2
[1983] TLR 293
72
(b) Restriction on petition for divorce during first two years of marriage
The petitioner cannot file for divorce in Tanzania unless two years after marriage
has expired. This is provided for under section 100 of the Law of Marriage Act,
1971. However the section provides for the exception thus the petitioner can file
for the divorce regardless of the fact that the couple have not lived in marriage
for a period of at least two years, this is upon the leave of the court where it is
shown that exceptional hardship is being suffered by the person applying for
such leave. The section provides to the effect that “No person shall, without the
prior leave of the court, petition for divorce before the expiry of two years from
the date of the marriage which it is sought to dissolve. Leave shall not be granted
to petition for divorce within two years of the marriage except where it is shown
that exceptional hardship is being suffered by the person applying for such
leave. An application may be made to the court under this section either before
or after reference to a Board under section 101”.
(c)The petition for divorce will not be granted if the ground for divorce is
founded on the petitioner’s wrong doing
The court cannot grant the decree of divorce where the petition is founded
exclusively on the petitioner’s own wrong (fault) doing in the absence of any
special reason. The provisions of Section 107(1) (a) of the Law of Marriage, 1971
provides 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, in particular-shall, unless the court for any
special reason otherwise directs, refuse to grant a decree where a petition is
founded exclusively on the petitioner's own wrongdoing.
In Athanas Makungwa v. Darin Hassan1 it was noted that “where the petition is
founded exclusively on the petitioner’s own wrong doing in the absence of any
special reason a divorce decree should not be granted”. In this case the evidence
adduced before the court to support the petition shows that the appellant told
the respondent (the petitioner in the trial court) that he was tired of her and that
he was tired of her and that he no longer enjoyed sex life with her. Then the
appellant write what is known as “talak” to signify that he had no intention of
living with the respondent. But the court noted that the respondent did not in her
evidence prove any matrimonial offence in particular or in general against the
appellant. On the contrary, the matrimonial offence which appears to have been
referred to in this case is said to have been committed by the respondent. The
appellant in the case alleged that the respondent was sleeping with other men.
Also the respondent is alleged to have been quarrelsome. All these allegations
were not denied by the respondent. It would appear then that petition is founded
exclusively on the respondent’s wrongdoing, the respondent here being the
1 [1983] TLR 132
73
petitioner in the trial court. By virtue of Section 107(1) (a) of the Law of Marriage
Act the court is precluded from granting divorce in a situation where the petition
if founded exclusively on the petitioner’s own wrong doing.
(d) Collusion
According to section 87 of the Law of Marriage Act, 1971 the court has power to
dismiss any petition in any case where it is satisfied that the petitioner has
attempted to deceive the court in any material respect or has willfully failed to
make a full disclosure of all relevant facts. Therefore the court can dismiss
petition for divorce on this ground of collusion. Collusion refers to the
arrangement of two persons, apparently in a hostile position or having
conflicting interests, to do some act in order to injure a third person or deceive a
court.1 Collusion is a bar to a divorce decree. Thus where the parties to a divorce
petition procure the institution of the suit by agreement to hide fact or fabricate
certain fact which is false in order to procure the dissolution of marriage the
court will not grant divorce.2
(e) Condonation
Condonation happens when the facts that a spouse has committed a matrimonial
offence are known to the other spouse and the other spouse decides to forgive. If
this is proved then the court cannot grant a decree of divorce. In condonation
there are three elements which are; knowledge of the offence committed,
forgiveness; forgiveness here does not necessarily means absolute remission but
it means a waiver of the right of taking matrimonial proceedings and indicating
that the innocent spouse overlooks the offence and is prepared to restore the
other notwithstanding its commission,3 lastly the reinstatement of the guilty
party to the his or her matrimonial position.
In Inglis v. Inglis4, condonation was defined to mean “the reinstatement of a

spouse who has committed a matrimonial offence in his or her former
matrimonial position in knowledge of all the material facts of that offence with
the intention of remitting it, that is to say, with the intention of not enforcing the
rights which accrue to the wronged spouse in consequence of the offence”. Also
in this case the court noted the fact that the mental element in that the injured
spouse will not be bound by his actions, if at the time, he was not in possession
From this case we get two important elements; firstly, the innocent spouse must
intend to forgive the other or to remit the matrimonial offence and secondly, he
must set the seal upon his forgiveness by reinstating the offending spouse to her
2 Noble v. Noble (1964) 2 All ER 557
3 Hearn v. Hearn (1969) All E.R. 417
4 [1967] 2 All E.R. 71
74
matrimonial position.1 Lord Denning in Tilley v. Tilley2, noted that if the

husband condones the wife’s adultery on the assumption that her association
with the other man was over, the fact that it was still continuing unknown to the
husband would negative the condonation even though no further adultery was
committed.
Condonation is provided for under section 86 of the Law of Marriage Act, 1971
which provides that, “Evidence of misconduct by a husband or a wife shall not
be inadmissible in any matrimonial proceeding on the ground that the
misconduct was condoned by the aggrieved spouse.“ In Mariam Tumbo v.
Harold Tumbo3 the petitioner alleges adultery this centers on the respondent’s
cohabitation with the second woman. This was indeed adultery, the parties’
being a Christians’ marriage which is presumed to be monogamous. The
respondent did not deny this fact; he only pleaded condonation. Lugakingira J,
held that; “I have no hesitation in finding that there condonation. The petitioner
might have initially felt slighted, humiliated and offended when the respondent
took on the second woman. But in the end she became reconciled to it, and
tolerated it, taking no step to register her protest. And for four years, she
voluntarily submitted to the respondents’ embraces thereby registering her
forgiveness. She cannot be heard now to complain.4
(f) Connivance
According to section 85 of the Law of Marriage Act, 1971 evidence of misconduct
by a husband or a wife shall not be inadmissible in any matrimonial proceeding
on the ground of connivance by the aggrieved spouse but no person shall be
entitled to any relief by reason only of misconduct at which he or she has
connived. Therefore as per this provision connivance is a bar to obtain a divorce
decree. Connivance is the intentional active or passive acquiescence by the
petitioner in the adultery of the respondent.5 This applies in adultery that is
where the parties to the marriage agree or connives to commit adultery. The
party in connivance will be bared to obtain a relief in divorce proceedings before
the court of law. In order for the respondent to plead connivance the petitioner
should have been consented to adultery or willfully promoted it in some way. In
Gipps v. Gipps6 it was noted that “to prove connivance it is necessary to show
not only that the complainant acted in such a manner as that adultery might
1 Bromley, P.M. (1976). Bromley’s Family Law (5th Ed). London: Butterworths, p 222
2 [1948] 2 All E.R. 1113, 1125
3 [1983] TLR 293
4 It should be noted that condonation should not be procured by fraudulent misrepresentation on
the respondent’s part; if it is procured by fraud then it will not bar the petitioner from pleading
adultery.
5
Rutherford, L. & Bone, S. (2003). Osborn’s Concise Law Dictionary (fourth Indian reprint), p 83
6 (1964), II H.L. Cas. I, 25, H.L.
75
result; but also it must be proved that it was his intention that adultery should
result”.
Connivance can be active connivance (connivance by express consent). In this the

spouse consents to the other spouse to commit adultery. This is where by the
couple agree actually to commit adultery. A good example of this is found in
Richmond v. Richmond1 , where two married couple agreed to exchange
spouses. Passive connivance thus by acquiescence thus a spouse connive at
adultery other wise than by giving express consent; he or she may do this by
standing and permitting adultery to take place. The petitioner must have been
promoted adultery to take place by refraining from taking steps to prevent it. A
spouse agrees to what the other spouse wants to do and accept but he can be
unsure if he or she is right. This should be distinguished from mere negligence or
over confidence.
ISLAMIC DIVORCE
The law of Marriage Act, 1971 accommodates marriages contracted under
multiplicity of law such as under religious beliefs the Islamic law. Therefore it
also recognizes Islamic divorces. Section 107 (3) of the Law of Marriage Act, 1971
recognizes the way Islamic marriages are divorced. The section provides for the
conditions for the court to grant divorce to Islamic marriages, thus the court
must satisfy itself that;
a) The parties were married in Islamic form, as per section 107(3)(a)
b) A marriage conciliation board has certified that it has failed to reconcile
the parties and the subsequent to the granting by the Board of a certificate
that it has failed to reconcile the parties, as per section 107(3)(b)
c) Either of them has done any act or thing which would, but for the
provisions of this Act, have dissolved the marriage in accordance with the
Islamic law, as per section 107(3) (c); thus one of the parties must have
pronounced ‘talak’ or an act due under Islamic law may have broke the
marriage. But the divorce will be pronounced by the court of the law
which shall find that the marriage has been has irreparably broken down.
In Mwinyihamisi Kasimu v. Zainab Bakari2 the parties were married under
Islamic law after living together for over 13 years, the respondent petitioned for
divorce. The primary court dismissed the petition and her appeal to the District
Court was also dismissed. But the District Court magistrate adviced that because
theirs was an Islamic marriage, the respondent could still obtain divorce by
redeeming herself (kujikhului) by returning the dowry which the appellant has
paid and that this would be in according with section 107(3)(c) of the law of
marriage Act, 1971. Subsequent the respondent applied to the court to redeem
1 [1952] I All E.R. 838

2 (1985) TLR 217
76
herself as adviced, and her application was allowed ex-parte, the husband
brought this appeal to the High Court. The court held that: In order for the court
to make a finding that a marriage is irreparably broken down and to grant a
decree of divorce as per section 107(3) of the law of marriage Act, 1971 it must be
proved firstly, that the parties were married under Islamic law, secondly, that a
Marriage Conciliation Board has certified its failure to reconcile the parties and
thirdly, that subsequent to the Board’s failure to reconcile them one of the parties
has done an act which, under Islamic law, is sufficient to terminate the marriage.
The court further stipulates that there are three conditions here all of which must
be satisfied before sub-section three can be invoked or before it comes into play.
In this case the court did not issue divorce because there was no act which
signifies the end of marriage under Islamic law.
Types of divorce under Islamic law

Talak divorce; this refers to an arbitrary act of the husband to pronounce an end
to the marriage. In Bibie Mauridi v. Mohamed Ibrahim, 1 the parties were
married under Islamic law, later the respondent issued talak in accordance with
the Islamic law. Their dispute has been referred to a marriage conciliation board
which certified that that it had failed to reconcile the spouses. In appeal to the
High court it was held that the act of the husband issuing “talaka” had the effect
of dissolving the marriage.
Divorce mubaraat; this is divorce by agreement of the parties to an Islamic

marriage they agree that they should stop to be husband and wife thus it is a
mutual consent of spouses to divorce. Khula divorce; this is done by the wife
making payment for certain amount or form of certain valued property to the
husband to buy her release from the husband. After payment the husband
pronounces the talak, the act is called redemption thus khului.2 Ila divorce;
where the husband swears not to have marital intercourse with the wife. Then
the wife may take it as withdraw for conjugal rights and so she sought divorce.
However a number of judges have confused the principle of section 107(3) of the
law of marriage Act, 1971. In this some of the judges have held that after the
husband has pronounced the talak then the parties go to court only to register
the divorce. For instance in Halima Athuman v. Maulidi3, it was held that “if the
board has failed to reconcile the parties, a Moslem spouse can proceed to
demand a khului before a sheikh or she can ask the sheikh to grant divorce
mubaraat. For a male Moslem he can issue three talaks, then the concern Moslem
merely goes to court to have his divorce officially registered without requiring
him or her to prove that the marriage is irretrievably broken”. However one need
1 (1989) T.L.R 162

2 see Mwinyihamisi Kasimu v. Zainab Bakari (1985) TLR 217
3 (1991) TLR 179
77
to ignore the findings of the judge for the court did not register divorces but only
determine whether to determine whether to grant or to refuse petitions for
divorce under the Law of Marriage Act, 1971. Thus it is for the court to determine
that the marriage has been broken down irreparably so as to grant divorce, if it
finds that the marriage has not been broken down then it shall refuses to grant
divorce.
It should be noted that after pronouncement of divorce decree by the court of

law, the wife must observe the customary period of iddat before she contracts
another marriage. This is provided for under the provisions of section 38(1) (j) of
the Law of Marriage Act, 1971.
ADJUSTMENT AFTER DIVORCE

This covers two aspects which are the division of matrimonial property and
custody of children.
Division of matrimonial property

Section 114 of the Law of Marriage Act, 1971 provides for the Power of court to
order division of matrimonial assets when granting or subsequent to the
granting of the decree of divorce. In the matter of division of matrimonial
properties after divorce the court shall pay regard to the following factors; 1
a) To the customs of the community to which the parties belong;
b) To the extent of the contributions made by each party in money, property
or work towards the acquiring of the assets;
c) To any debts owing by either party which were contracted for their joint
benefit; and
d) To the needs of the infant children, if any, of the marriage, and subject to
those considerations, shall incline towards equality of division.
From the wording of Section 114 it is clear those assets which can be divided by a
court’s order are matrimonial assets and secondly they must have been acquired
by the spouses during the marriage by their joint efforts. Matrimonial assets
means the same thing as “family assets” as described in paragraph 1064 of Lord
Hailsham’s Halsbury’s Laws of England 4th Edition, p 491 thus:
“The phrase “family assets” has been described as a convenient way of
expressing an important concept; it refers to those things which are
acquired by one or other or both of the parties, with the intention that
there should be continuing provision for them and their children during
their joint lives, and used for the benefit of the family as a whole. The
family assets can be divided into two (1) those which are of capital nature,
such as the matrimonial home and the furniture in it. (2) those which are
1 section 114(2) (a)-(d) of the Law of Marriage Act, 1971
78
of a revenue producing nature such as the earning power of a husband

and wife.”
Properties acquired during the marriage include assets owned before the
marriage by one party which have been substantially improved during the
marriage by the other party or by their joint efforts.1 Joint effort refers to the
property owned jointly by husband and wife and including the matrimonial
home. It is the property in which the husband and wife have joint interest in it.
Controversy over section 114

For years there was controversy over the interpretation of what amounts to joint
efforts, the issue was that whether domestic service of a husband or wife amount
to joint efforts towards acquiring matrimonial properties (assets). This arises due
to the fact that according to section 114 (2) (b) of the Law of Marriage Act, 1971
provides to the effect that in exercising its powers on the division of matrimonial
properties the court shall have regard to the extent of the contributions made by
each party in money, property or work towards the acquiring of the assets. In
Hamid Hamin v. Maimuna Ameir2, it was held that “where dissolution of
marriage is ordered the question of distribution of matrimonial assets should not
be settled until the extent of the contribution of each of the spouses towards the
acquisition of joint property is settled”.
On this there have been two different stances; there were judges who take the
conservative position and liberal position. In Zawadi Abdallah v. Ibrahim Iddi3
Mapigano, J. referred to these two schools of thought by stating:
There are those who maintain that under section 114 the term joint effort
is limited to direct contribution by a spouse by way of money, property
and work, to the acquisition of the asset in question and that
housekeeping and raising the children count for nothing. On the other
hand there are those who take the view that household work must be
regarded as part of the joint effort or contribution towards the acquisition
of any asset by the husband and that she has been running the home
operate to entitle her to slice in her husband’s estate.
Those who take a conservative view argued against the idea of contribution of
domestic work in the acquisition of matrimonial properties.
Those who take liberal position argued that domestic substance shall be regarded
as regarded as joint efforts towards acquisition of matrimonial property. Judges
1 Section 114 (3) of the Law of Marriage Act, 1971

2 (1977) LRT 55
3
[1981] TLR 311
79
who advanced the liberal position take the view stated in the words of Scarman,
L.J.1 in which he states that:
It is recognised that a married woman who brought up a family and
maintained a home was thereby actually supporting her husband in his
bread winning activities by releasing him from family duty. Quite plainly
if the marriage broke down she must have a claim upon the family funds
by reason of that vital contribution to the family life.
The landmark case in division of matrimonial properties in Tanzania

The landmark case on the division of matrimonial property in the event of
divorce is the case of Bi Hawa Mohamed v. Ally Sefu,2 where by the Court of
Appeal held 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; “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. Given the fact that the Court of Appeal is the
superior court in Tanzania its decision binds the High Court and courts
subordinates to.
Since then judges have held that domestic services amount to participation in
acquiring matrimonial property. For instance in Mohamed Abdallah v. Halima
Lisangwe3, this case centers on two issues, thus whether bearing and rearing of
children entitles a share in the economic fruits, and also the respondent cleared
the construction site-whether she participated in the construction of the house.
Facts of the case were as follows; the marriage was irreparably broken down and
dissolved by the trial court. The main issue was the division of matrimonial
house. Assessors and magistrates in the trial court had different views. In his
determination, the District Court Magistrate accorded the award of the division
of the house. Dissatisfied by the decision of the District Court the
appellant/respondent appealed to the High Court. The appellant recapitulated
his defence in the lower courts that the respondent/petitioner did not contribute
in the acquisition of the house; and that built the house through a loan from the
bank. There was no dispute that during the substance of the marriage in which
the house was built the respondent/petitioner bore children, reared them and
took care of the matrimonial home. Also there was evidence to the effect that the
respondent/petitioner participated in the construction of the disputed house by
clearing the ground on which the house was built. The court held that “the
appellant’s argument that he secured loan from the bank to build the house may
be true but that does not necessarily mean that the respondent/petitioner did not
1
Appear in the Medico-Legal Journal, 1966 Vol. 34 at p 19
2 [1983] T.L.R. 32
3 (1988) TLR 197
80
contribute in the acquisition of the acquisition. The law regarding section 114 of
the Law of Marriage Act is now settled. The principle underlying division of
property under section 114 is one of compensation, it does not matter nor does it
make any difference whether that being compensated is direct monetary
contribution or domestic services … the petitioner contributed in the acquisition
of the house and she is therefore under section 114 of the law of marriage Act
entitled to a share in the house”.
Effects of spouse’s matrimonial misconduct in dealing with matrimonial

properties
Another thing to be taken into consideration in division of matrimonial is that
where a spouse commits matrimonial misconduct which reduces to nothing her
contribution towards the welfare of the family and consequential acquisition of
matrimonial assets she or he would not be entitled to a share in the property as it
was said in the English case of Martin v. Martin1, thus “…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 do if he had behaved reasonably”. 2
Therefore a spouse who swindles the matrimonial properties during the
existence of marriage cannot be held of demanding of matrimonial assets
division. (Continues….)
1 [1976] 3 All ER. 629

2 See also Bi Hawa Mohamed v. Ally Sefu [1983] T.L.R. 32, at p 45-46
81
ADOPTION OF CHILDREN
Adoption is usually understood to mean “the creation of partial or full kinship
relations by agreement and law instead of blood”. 1 This involves the voluntary
assumption of parental obligations by an individual who is usually not the
biological parent of the person adopted. However there are cases however in
which an illegitimate child may be adopted by his or her natural parent. 2
Adoption is a legal mechanism designed to terminate the legal relationship
between a child and her current parents or guardian and to allow for a new
legal parental relationship to be created in its place. This new relationship will
be between the child and her new 'adoptive' parents.
The Adoption of Children Act3 under Section 2(2) provides to the effect that (2)
“a person shall be deemed to make arrangements for the adoption of a child if,
not being a parent or guardian of a child, he enters into or makes any agreement
or arrangement for, or for facilitating, the adoption of the child by any other
person, whether the adoption is effected, or is intended to be effected, in
pursuance of an adoption order or otherwise, or if he initiates or takes part in
any negotiations of which the purpose or effect is the conclusion of an agreement
or the making of any agreement therefore, or if causes another to do so”.
Therefore adoption is a procedure by which people legally assume the role of
parents for a person who is not their biological child. Adopted children become
full members of their adopted family and have the same legal status as biological
children.
The law governing adoption of children in Tanzania

Our law of adoption is mainly contained in legislation, although there is also case
law. The law governing adoption of children in Tanzania is the Adoption of
Children Act4, there are rules thus the Adoption of Children Rules G.N. No. 321
of 1942.5 There are regulations6 in relation to adoption of children in the country
these includes the Adoption of Children (Fees) regulations G.N. No. 205 of 1992
and the Adoption if Infants (Fees) Regulations G.N. No. 248 of 2000. It should be
noted that the legislations on child on adoption was firstly introduced by British
colonial power in 1942 thus the Adoption of Infants Ordnance 19427 and the
1 Krause, Harry D., 1976. Creation of Relationships of Kinship, Volume IV: Persons and Family,
Chapter 6:Creation of Relationships of Kinship, in: International Encyclopedia of International
Law, The Hague: Mouton , p 5
2 Ibid, p 5 and 12, also section 3 (3) of the Adoption of Children Act Cap 335 RE 2002 provides to
the effect that a parent may adopt his or her own child.
3 Cap 335 RE 2002
4 Idem
5 Made under Section 11 of Cap 335 RE 2002
6 Made under Section 23 of Cap 335 RE 2002
7
No 5 of 1942, cap 14 of the Laws of Tanganyika, in force since 8 th may 1942
82
Adoption of Infants Rules 19421. The two laws were modeled after the Adoption
of Children Act, 1926 of England. Adoption of Infants Ordinance was amended
in 1955 by the Adoption Ordinance of 1953.2
Persons involved
The question to ask ourselves is that who can be adopted? After that then; who
can adopt children in Tanzania? The answer is found in the Adoption of
Children Act
Consent to adoption
The legal effects of adoption
(Continues………..)
1 GN 28 of 1956
2 No. 42 of 1953, Cap. 335, in force since 1.1.1955
83
REVISION QUESTIONS
1. “A Customary marriage is not a real marriage but rather a wife purchase”.
In the light of the Tanzania Law of Marriage Act, 1977 and the Customary
Law Declaration Rules (GN No. 279, 1963) and with the aid of decided
cases. Critically discuss the above statement.
2. “The Law of Marriage Act, 1977 represents a big effort by the Legislature
to integrate and streamline various personal laws without unduly
interfering with people’s customs and religious beliefs”. Comment on the
above statement. In your analysis of the Act what aspects of the Act do
you think conform to the above statement and to what extent do they do
so?
3. “I do not accept a proposition that when a husband and a wife are living
together the means of the wife are irrelevant. I know that in Callot V. Nash
(1923), 39 T.L.R. 292. McCaedie, J. said that ‘the law draws no distinction
between a wife with large income and a wife with no income at all. The
wife may accumulate all her income and throw a burden of her upkeep on
her husband’. I do not think this is right. At the present day, where a wife
is nearly in all respect equal to her husband, she has to bear
responsibilities which attach to her responsibilities which attach to her
freedom”. Denning, L.J.; in Biberfield and Barens (1952) 2 All. E.R. 237 at
243.
i. Comment on the above statement and its relevance to the
Law of Tanzania.
ii.What type of “freedom” does Lord Denning mean and
iii.What do you think are “the responsibilities which attach” to
that freedom.
4. Give accurate and detailed explanation on Sororate and leviratic

Marriages
5. Explain in detail the paramount principle of The Best Interest of the Child
6. Explain the rule developed in Zacharia Lugendo v. Shadrack [1987] TLR 31
7. Discuss Plucheria Pundugu v. Samwel Pundugu [1985] TLR 7
8. “The petitioner in his petition and the respondent in her answer establish
that the marriage has irreparably broken down, as both assert it has, and
each spouse is praying for a divorce. Consequently, I have not the
slightest hesitation in formally finding that the marriage has in fact and in
law irreparably broken down.” Biron J in Joseph Warioba Butiku v. Perucy
84
Muganda Butiku [1987] TLR 1. With the aid of decided cases, critically
comment of the above quotation.
9. Explain the major characteristics of an African customary marriage in a

patrilineal society prior to independence.
10. “A woman to woman marriage is not a marriage at all”. Obi. Discuss
11. Explain the major elements that constituted a valid African customary
marriage for a first marriage of women in patrilineal societies prior to
independence.
12. Compare and contrast the rights and duties of an African couple in
patrilineal societies married under customary law and those married
under a Christian rite.
13. State which were the major disadvantages of married woman in

matrimonial relationships prior to independence.
14. What, in your view are the achievements and factors that are likely to
adversely affect the effectiveness of the Tanzania Law of Marriage Act
1971 in enhancing the status of women in the country.
15. S. 160(1) of the Law of Marriage Act, 1971 provides: “where it is proved
that a man and a 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”. Which, in your view, are the factors that would rebut such
presumption?
16. In the case of Elizabeth Ismail v. Melkizedek Haruni [1982] TLR. 328, the
parties lived together as husband and wife for over two years (1974-1978).
Thereafter the appellant married another man in a direct and open
marriage. Before the trial court such subsequent marriage was not
recognized in the light of the existence of an earlier presumed marriage.
On appeal to the court by the appellant, Mfalila, J. as he then was, in
allowing the appeal had this to say, among other things: “The relationship
between the parties gave rise to a presumption which is rebuttable that
they were duly married…it was effectively rebutted in this case when the
appellant married another man in a direct and open marriage. By
marrying another man what the appellant was saying is that despite her
having lived with the respondent for more than two years they were not
married”.
85
Comment on the correctness of such decision.
17. State what would be the effect on the status of children (legitimacy) on the
coming to an end of a marital bondage of the parents by:
(i) Annulment of void marriage
(ii) Annulment of a voidable marriage
(iii)Rebuttal of a presumed marriage
18. 19. Write short notes on the following

a. Pregnancy per alium
b. Polygamy and polyandry
c. Khului and illa divorces
d. Bars to divorce
19. “The law of Marriage Act, 1971 conceded to the religious positions of the
populace in Tanzania without compromising on its main objective of
unifying the Laws of marriage”. Discuss to what extent the Law of
Marriage Act, 1971 has taken or not taken on board positions which were
articulated by the Roman Catholic Bishops and Moslem Sheikhs during
the discussion of the Government White Paper No. 1 of 1969 on the
unification of the Laws of Marriage and Divorce in Mainland Tanzania.
20. Dorothy and John, aged 17 and 21 respectively, married in Kilolo District
Office in July 2007. Dorothy did not tell her parents that she was getting
married. The marriage was not consummated because Dorothy was afraid
of intercourse. In December 2007 Dorothy began seeing a psychiatrist so
as to resolve this difficulty. John who was repeatedly urged Dorothy to
consummate the marriage, has discovered that she is having a sexual
relationship with her psychiatrist and she is pregnant. Advice John
whether he can successfully petition for a decree of nullity.
21. “The matrimonial offence is usually the symptom that the marriage has
broken down not the cause of the breakdown”.-Spry report-paragraph 292
To what extent is the above statement reflected in Tanzania law governing
divorce.
22. Does the abolition of the matrimonial offence doctrine make divorce
easier?
23. Mention aspects of the Law of Marriage Act, 1971 which appear to conflict
with the Act’s general spirit of no-fault divorce.
86

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Lwijiso O.

THE UNIVERSITY OF DODOMA

COLLEGE OF HUMANITIES AND SOCIAL SCIENCES

LECTURE ON FAMILY LAW

Mr. Mikidadi Ahmed, a third year LL.B Student at University of Dodoma

1.2 The concept of marriage

Marriage is an agreement by which a man and a woman enter into a legal

1 Cap 29, Revised Edition 2002( LMA)

According to cannon law, Marriage is a conjugal union of a man and woman,

1 Diwan, P (2000). Family Law (5th ed). Allahabad Law Agency. P 25

In the other phenomenon polygamy means a system of marriage whereby one

1 Cap 29 Revised Edition 2002

30th July 30, 2007

2. MERRIAGES DURING PRE-INDEPENDENCE PERIOD

In the pre-colonial society, marriage was regarded as a transaction giving rise to

2.1 Characteristics of traditional African marriages

2. Marriage was characterized by parental consent as opposed to the consent by

4. Profound interest and involvement of the families of the marriage contracting

Reasons for the payment of bride price

6. Marriage ceremony was part and parcel of valid marriage in pre-capitalist

8. Often time’s customary marriages have been polygamous or potentially

2.2 Types of Customary African Marriages.

ii. Leviratic marriages

iii. Ghost marriages

2.3 FORMS OF PRE-CAPITALIST AFRICAN SOCIETIES

ii. Matrilineal Societies

2.4. STATE INTERVENTION IN FAMILY LAW DURING COLONIAL

During pre-colonial period marriage was regulated by clan. During colonial

A) TREND OF COLONIAL JUDGES ON AFRICAN MARRIAGES

However in 1917 Uganda amended the law of Evidence in respect of

In the case of R v. Amkeyo2, Hamilton, J insisted on the concept of marriages as

B) THE POSITION OF COLONIAL JUDGES ON ISLAMIC MARRIAGES

Despite all these recognitions courts of Tanganyika. Kenya, Zanzibar and

In order to remove this confusion Kenya enacted Mohammedan Marriage

3. EFFORTS FOR THE UNIFICATION OF CUSTOMARY LAW AND FAMILY

4. FORMATION AND NATURE OF MARRIAGE

There are differences between marriage and commercial contracts in the

4.2 Contracts to marry

4.2.1 Capacity to enter into a contract to marry

4.2.2 Limitation of actions for the breach of the promise to marry

4.2.3 Breach of the contract to marry

1 [1971] H.C.D. NO. 407. HC

Anticipatory breach of the contract to marry occurs where the defendant

4.2.4 Remedies for the breach of contract to marry

defendant fulfilled his contractual obligations and which was foreseeable

B) The position in Tanzania

4.2.5 Properties of engaged couples

1 Law of Marriage Act of 1971

4.2.5 Gifts made in contemplation of marriage or gifts between engaged

Under common law a gift made in contemplation of the marriage by one

4.2.6 Defences for the breach of promise to marry

The following facts have been held to afford good defences;

1 [1916] 1 K.B. 57, C.A

the case of Irving v. Greenwood1, the defendant refused to marry the

1 (1823) 1 C & P. 300

4.3 Nature and types of marriage in Tanzania

4.3.2 Preliminaries to marriage

1 The law of marriage Act, section 18(2)

or otherwise communicable disease or is likely to introduce grave discord

4.3.4 Forms of marriage ceremonies

Christian marriages; Section 25(3) (b) of Law of Marriage Act a marriage

1 The Law of Marriage Act, 1971 Section 22

the Roman Catholics marriage is monogamous and it is among the seven

Note; all marriages contracted in Tanzania need to be contracted in the presence