FAMILY LAW (304)

8 topics to be covered.

- intro

-Essential conditions of marriage

-Notice on intentions to marry

- Contracting of marriage

- rights and obligations in a marriage

-disolution of marriage

- consempt of presumption of marriage

-rights of damages for adultery

FAMILY LAW: family law is abranch of law which deals with familiy relations
and other related issues.

WHY IS IT NECESSARY THAT WE HAVE FAMILY LAW:

regulates and protect families in the following ways:

family brings peace

family is the core to the welfare of the nation

family brings unity

as person you mst balance your wel being economically,socialy

FAMILY: a group of people who are closely related to each other either blood
related or not blood related.

or is a group of persons who are united by marriage, filiation or adoption.

or is a sicial group characterized by common residence, economic

corporation, and reproduction, and it includes both sexes atleast two of
whom maintain a socialy approved sexual relationship.

GENERALLY THERE ARE 2 TYPES OF FAMILY

(1) NUCLEAR FAMILY which consists of married man and woman with their
offspring

(2) EXTENDED FAMILY: this consists of two ro more nuclear families affiliated
through an extention of the parent child relationship rather than husband
wife relationship.

SOURCES OF FAMILY RELATIONSHIP:

(1) RELATIONSHIP BY BLOOD (CONSANGUINITY) : this is a relationship which

basically results form birth, people bare blood bond. all persons who
originate form the same ancenstors.

(2) RELATIONSHIP BY AFFINITY:

this is a relationship which is created as a result of marriage, meaning

relatives are formed through marriage meaning that they are not blood
relatives. example when a man marries a woman the woman. however the
relationshi does not extend or exists between relatives of spouses.
meaning if you have a wife and she has a sister the sister is not recognized
as a member of the family.

(3) RELATIONSHIP BY ADOPTION: this is created as a result of special contract

between the adopter and the original family of the adopted child. it is
recommended that you adopt a child who is below 5 years.
EFFETCTS OF FAMILY RELATIONSHIP:

(1) it creates rights and obligations,

Rights :

- right to education

- rights to basic needs

-right of inheritance (sometimes even parents have the right to inherit from
their children.

Obligations:

- maintain your family

- protect your family

SOURCES OF FAMILY LAW:

- Constitituion Article 16 right to privacy

- Statutes (Law of marriage Act, Child Act, Probabte of administartion ... Act)

- International Laws (ICCPR) Convention of rights of child

- Case Laws:

- Religious Laws , islamic laws and canon law

- Customary Laws:

MARRIAGE: theer are three important elemets

-VOLUNTARY

- MAN BETWEEN WOMAN TO THE EXCLUSION OF OTHERS ( although there are

issues of homosexuality) which shows that there is a problem here on who
should get married. another aspect is the number of women because there
are poligomous marriage.

- FOR LIFE:

It is a voluntary union for life between man and a woman with the aim of
spending a life time together and excluding all others, as provided in
section 9 of the Marriage Act . Hyde Vs. Hyde defines what is marriage.

a marriage may be recognized as a:

Status: is a condition of belonging to a certain class in a society and this

class has rights and duties or how the law regards a person such as a
whether the person is a minor or not.

Contract: marriag is also a contract because it has some elements of

contracts eaxmple the issue of capacity to enter into contract, the issue of
free consent.

According to Canon law tehey are saying that manrriage is a conjugal union
of a man and a woman which arises only from the free consent of each
party. Marriage is a convenant between a man and woman to establish a
partnership of their whole life. in conjugal it means there must be sexual
relationship, It is also covenant which is basically for life especially in
schristianity.

Islamic meaning of Marriage: (Nikah) according islamic law nikah is a

contract underline a permanent relationship base on mutual consent
between a man and a woman or saying it is a contract for the purposes of
legalizing intercourse, breeding of children and regulation of social life by
dong two things ,

(1) the rights and duties between the spoueses

(2) rights and duties towards their children

TYPES OR KINDS OF MARRIAGE

section 10 of the law of Marriage Act provides for kinds of mrriage

(1) Monogomous marriage

(2) Polygomous marriage (may be polygomous or potentially polygomous)

section 10 (2) of Marriage Act

section 11 of Marriage Act allows to convert marrigae fromn monogomous

to polygomous and vise versa.

HOW DO YOU CONVERT MARRIAGE

the law says by declaration made by the husband and the wife that they
each of their own free will agree to the convertion. the declaration must be
made in the presesnce of a judge or residence magistrate. then the judge
must transmit that copy to the registrar of marriage. section 6 talks about
marriage registrar.you must follow legal procedures it is not your will
section 11 (4) of the Law of Marriage Act .

Section 12: talks about duration of marriage, a marriag ewhether granted in

main land Tz or else where shall exists until determine the following

(1) death of either party

(2) by decree where there is a presumption of death

(3) decree of annulment ( exmple marrying someone and later you figure
out that you married a relative or that person is homosexual) or he is
incapacitated.

(4) By decree of divorce or desertion

(5) By giving a divorce outside of Tz and it will be valid heer as long as it is

recognized.
ESSENTIAL CONDITIONS GOVERNING MARRIAGE

(1) AGE: Parties to a marriage must have reached a certain age so as to

appreciate the consequences of the law of Marriage Act. Marriage has a lot
of responsibilities , you need to marry a person who is able to bare children.
The specified minimum age to marry, section 13 of the Law of Marriage Act,
it says that no person shall marry who has not attained the
apparent(appearance) age of 18 years for male or female of 15 years. In the
convention of UN on consent to marriage minimum age of Marriage and
registration of marriage of 1962, resolution 2018 1 st (read)Nov, 1962 at
principle 2 of this resolution recognizes the minimum age of 15. Section 13
(2) of LMA says that even a male below the age of 18 may marry and a female
before the age of 15 may get married also. Even at the age of 14 both partied
may get married but this is exceptional circumstances Section 13 (3) of LMA
says that if you have not attained the age required and you do not have the
leave of the court it means you are of below the minimum age.

(2) RELATIONSHIP: This is another essential condition to conclude a valid

marriage and the regard is on the prohibited relationships, example if you
are related by blood you can not marry each other you commit a crime
called insist. The reason behind is that we are all related. Section 14 of the
LMA says that no person shall marry his or her grandparents, child or grand
child, sister or brother, aunt or uncle, Section 14 (2) says that you shall not
marry the grandparent or parent, child or grandchild of his or her spouses
or former spouse. Section 14 (3) no person shall marry the former spouse of
his or her grandparent or parent, child or grandchild. Section 14(4) says no
person shall marry a person who he or she has adopted or by whom he or
she was adopted. Section 14(5) says that you can not marry with a person
with relationship of the half blood whether legitimate or illegitimate. Read
section 14 (6) and (7).
(3) CONSENT: Marriage is an institution the parties must enter in such
institution with free and full consent read UN Convention consent to
marriage Article 1. Section 16 of the LMA

Vitiative factors of marriage Section 16 (2)

FRAUD:

- In issues of fraud may happen if there is impersonation.

- state of health of the intended spouse.

- body deformation.

- issues of bad behaviours of spouse ( example same sex), rapid use of

vibrator.

COERSION:

- telling such person that the family will isolate you if you do not marry such
person, shows that there is no free consent.

MISTAKE AS TO THE NATURE OF CEROMONY: example he says it is

monogamous ceremony while It is polygamous.

CULTURE: that parents forced you to marry due to cultural reasons

Section 17 also talks about consent on circumstances when a female is

under age , read section 17 (2) may apply to the court for consent, read
section 17 (3)

(4) SUBSISTING MARRIAGE: For a valid marriage to be concluded there

should not be any prior marriage, other wise it will be bigamy as an offence.
Unless if it was polygamous from the beginning. For a female when your
husband dies you must wait for sometime until you get married again.
PRELIMINARIES TO MARRIAGE: the first thing before marriage is to provide
notice of the intention to marry section 18-24 of LMA, the law says that when
a woman and man have a desire to marry they shall at least 21 days before
marriage to give notice of their intentions to a registrar(kadhi ) or anyone
who is licensed or registration office. Contents of notice are in section 18
(2). Notice of objections and procedure (read) section 19-24.

MODES OR WAY OF CONTRACTING MARRIAGE (CONCLUDED)

There are three ways or modes of contracting marriage

Section 25 of LMA provides for the modes of conclusion of marriage ,

(1) CIVIL WAY/CIVIL MARRIAGE:civil marriage does not prevent any other
form of celebration because it is a basic form of contracting of marriage.

(2) BY RELIGIOUS WAY/ RELIGIOU MARRIAGE:Section 25 (3) talks about 2 types

of religious marriage, either recognized by Islam set or a Christian
marriage although the person conducting the marriage must be licensed

(3) CUSTOMARY WAY/ CUSTOMARY MARRIAGE: section 25 (1) (d)

Section 28 of LMA says that celebration of marriage should be made

publicly which means that marriage is a public matter, any member may
attend if it is a civil marriage according to section 28 (1)

- the law must be celebrated in the presence of future spouses and 2

witnesses

Proxy marriage: is a representative marriage

The law does not require relatives to be presents all it needs is witnesses

Qualification of witnesses are in section 27 (2)

The time for contracting marriage is provided by section 26 which there

must be a notice of 21 days interventions and the contracting of the
intended marriage there must be a

PROCEDURE IN A CIVIL MARRIAGE:

A civil marriage is marriage which has been concluded before an officer of

a civil status section 29 of LMA provides for procedures for marriages in a
civil form in the presence of a district registrar. In his office or in such other
place authorized and licensed. Manner of the marriage section 29 (a)
section 29 (b) completion of a marriage, section 29(c ) requesting the
registrar will be monogamous or polygamous.even in divorce you will not
be bound of religious marriage because it is a civil marriage.

RELIGIOUS MARRIAGE: a religious marriage takes place when a man and a

woman have performed such acts or rites as deemed to constitute a valid
marriage by their religion or by the religion of one of them and for this
effect the formal requirements for the conclusion of a religious marriage
are dictated by that religion however the legal formalities are constant.
Different formalities are applied in different religions.

CUSTOMARY MARRIAGE: It takes place when a man and a woman have

performed such rites as deemed to constitute valid marriage by the
customs of the community in which they live or by the custom of the
community to which they belong or to which one of them belong. Therefore
it depends on communities, however such customs must be in accordance
with the laws of the country especially the constitution. Other legal
formalities must be there.
Read section 30-32 of the LMA.

MARRIAGE CELEBRATED ABROAD

Section 34-37 of the LMA talks about marriage celebrated abroad, the issue
here is to recognize the marriage which has been celebrated out side of
Tanzania, the law says that the marriage who is in cognition is sought in Tz
has to be concluded by fulfilling the legal requirement of the place of
celebration. However there may be preserving the morality of a certain
country, example same sex marriage in other country it is a valid marriage
but not in Tanzania because it is against public morality. The law requires
every celebrant in a marriage to be present during the celebration. After
the celebration as an evidence to the marriage the law says that you must
be given a marriage certificate by the registrar according to section 33 of
the LMA.

EFFECT OR VIOLATION OF ESSENTIAL COMMISSIONS OF MARRIAGE

NULLITY OF MARRIAGE

There are two circumstances in which marriage annulment can be done

(1) A marriage may be rendered void

(2) A marriage may be rendered voidable

DIFFENCES BETWEEN VOID AND VOIDABLE MARRIAGE

A VOID MARRIAGE: Void means not in existence or has no legal effect. A void marriage is
one to which there is a serious objection in law because of a crave defect and it would
be regarded as never taken place. A void marriage is the one that would be regarded by
every court in any case in which the existence of the marriage is in issue has never
taken and can be so treated by both parties without the necessity of any decree of
annulment. It is treated as if it has never take place.

VOIDABLE MARRIAGE: This is regarded as a valid subsisting marriage unless and until it is
attacked, section 40 of LMA talks about voidable marriage.

VOID MARRIAGES : Section 38 of LMA

(1) UNDER AGE: If you enter into marriage with a person who is under age such marriage
will be void. Exception is where you have sought for consent.

(2) WHERE THE PARTIES ARE WITHIN THE PROHIBITED RELATIONSHIP:

(3) IF EITHER PARTY IS INCOMPETENT TO MARRY BY REASON OF AN EXISTING MARRIAGE: ( Case

of RE SPENCE)

In this case W married H and they were blessed with one issue later W left H and live
with X and they got two issues after five years W went through a ceremony of marriage
with X but during that time H was still alive

HELDING: the marriage of X and W was void and judge NOURSS stated that a void marriage
both as a matter of language and by definition is annulity, because it is only an idle
ceremony achieving no change in the status of the participants

CASE: WICKEN Vs. WICKEN In this case W married H1 in Gambia in 1999 in a muslim
ceremony after two years they separated W was convinced that the letter of divorce
sent to her by H1 constituted a valid divorce under Islamic law, so W proceeded in
marrying H2 her second husband and settled with him in the UK unfortunately this
marriage collapsed and W applied for divorce. H2 petitioned for divorce and also
applied for a decree of nullity on the ground that W had not been divorced, a written
evidence of that letter was brought to court and the issue was whether such letter
constituted a divorce, the court said that if the letter constituted a valid divorce under
Gambian law it would also be valid under English law.

(4) IF THE COURT EXERCISES SECTION 22

(5) WHERE THE OCNSENT OF EITHER PARTY WAS NOT FREELY AND VOLUNTARLY GIVEN

CASE: MEHTA Vs. MEHTA

In this case the petitioner known as P was domiciled in England and she participated in
a marriage ceremony in India with respondent R an Indian, the writs of the ceremony
were conducted in HINDUSTAN which P did not understand, P was under the impression
that the ceremony was making her conversion to the Hindu Religion which she had
agreed however P was later informed that the ceremony had been converted her to
Hinduism and also she had been married to R. so P claimed that at no time she had ever
intended to marry R and that she was never aware that the ceremony involved marriage
and the court declared this marriage void for lack of consent. Court said that it was clear
that P had been totally unaware that the ceremony of conversion was also a marrriage
ceremony therefore she is entitled of a decree of nullity.

CASE: BUCKLAND Vs BUCKLAND in this case the petitioner while in Malta was charged with
an offence of corruption of a minor, he was advised by his soliciter that there would be
no chance for him when confronted in Malties courts with a charge of this nature, in
MAlta this is a very serious offence. So he was told you have one choice to marry that girl
or to go to prison, the petitioner thought over the advise and decided to marry the girl
and later on he applied for decree of annulment arguing that there was no valid
consent , the court held that the marriage was null and void.the court observed that in
the absence eof consent there can be no valid marriage, and fear may vitiate consent.
The court proceeded by saying that the pertitoners here was genuine and the decree of
annulment was granted

(6) IF BOTH PARTIES ARE NOT PRESENT AT THE CEREMONY: if such issue happen the
marriage is declared void however there is an exception of section 38 (2) of the LMA
(7) IF BEFORE THE MARRIAGE THE PARTIES WERE AWARE THAT THE OFFCIATING PERSON IS NOT
LICENSED: This means that such marriage will be rendered void . but if you were not
aware then it may not be rendered void.

(8) IF THERE ARE NO WITNESSES: such marriage will be rendered void

(9) IF THE INTENDED MARRIAGE IS EXPRESSED TO BE OF TEMPERARY NATURE OR LIMITED

PERIOD:

(10) WHER ETHE WIFE WAS A WIDOW OR DIVORCED WOMAN MARRIES BEFORE TIME REQUIRED
TO PROCEED WITH THE NEXT MARRIAGE (IN SLAMIC)

(11) WHERE PARTIES ARE OF THE SAME SEX: Although it is not provided by our laws.

COBERT Vs. COBERT In this case there was Mr Ashlyne decided to change his sex organ
and fixed it with a female organ, the operation was sucessful and she became a model
and got married to man who did not know anything about her passed. Later the man
discovred that the lady was not a real woman so he applied fo rdecree of annulment and
it was HELD: sex is a bilogically fixed at birth and can not be changed artificial thus
Ashlyne can not by no way be a woman.

VOIDABLE MARRIAGES: These are provided by section 39

CIRCUMSTANCES

(1) EITHER PART WAS INCAPABLE OF CONSUMMATING IT: consummating or VERA COPULA this
is sexual intercourse between husband and wife, VERA COPULE consists of erection and
penetration. Partial intercourse will not amount to consummation. Ejaculation is
immaterial. Marriage means the right of consummation. Such right implies the
corresponding duty of each spouse to cohabit together. If the foundation of marriage is
absent then the purpose of the marriage is defeated.

Non consummation may be

- when the party is impotence

- and wilfully refuse

CASE: P Vs. P , In this case the parties married in 1992 and three months later the
husband pertinioned for annulment on grounds of non consummation, the decree was
granted and the judge ordered the wife to vacate the matrimonial home for the reason
that the marriage of the husband of wife did not exist because the marriage was no
consummated.

D vs. A in this case the wife has some physical defects which made full intercourse
impossible, and the court observed that sexual intercourse in the proper meaning of the
term is ordinary and complete intercourse it doesnt mean partial and imperfect
intercourse. The judge said the only question is whether the lady is or not capable of full
intercourse or if at present incapable whether that incapacity could be removed and the
lady be capable of intercourse even without power of conception I can not pronounce
this marriage void.

CASE: SINGH Vs. SINGH In this case husband was 21 and wife was 17, this was an arrange
marriage, the wife never saw the husband before, it took place in a registrar office and
soon after the civil ceremony the religious would take place, but the girl after seeing the
husband she was not interested, so she refused to participate the religious ceremony,
so the wife pertitioned for a decree of annulment basing on duress and incapacity to
consummate.

The court said that the Wife never submitted herself to the physical embrace of the
husband because after the civil ceremony it does not appear that she saw him again or
went near him, therefore she did not want to marry him or have sexual intercourse. Here
there is wilfully refusal

(2) IF EITHER PARTY WAS SUBJECT OF RECURRENT ATTACK OF INSANITY OR EPILEPSY :The law
requires that you should not be aware of such fact before marriage.

(3) EITHER PARTY WAS SUFFERING FROM VENEREAL DISEASE IN A COMMUNICABLE FORM:
Example having Gonorrhoea or Aids.

(4) WHERE THE WIFE WAS PREGNATED BY ANOTHER PERSON OTHER THAN THE HUSBAND

CASE: STOCKERT Vs STOKER In this case a husband and wife met in April 1963 and they
started to have sexual intercourse but always the husband used protection, that was
april in june the wife told the husband that she was pregnant and the husband decided
to marry, they married in August and the child was born in December, the husband
pertinioned a decree of annulment on the grounds that it was not him who impregnated
the wife.

The judge said I have no doubt at all on the medical evidence that this child must have
been conceived at the time before H and W met on that finding on that finding the child
can not be the child of H
(5) THE MARRIAGE HAS NOT BEEN CONSUMMATED OWING TO THE WILFUL REFUSAL OF ONE
PARTY TO CONSUMMATE:

(6) THE WIFE HAD NOT ATTAINED THE AGE OF 18 YEARS AND NO CONSENT GIVEN BY COURT.

Sometimes the validity of a marriage may be tested

Section 41 provides for matters not affecting the validity of marriage

(1) Non compliance with any custom relating to dowry or the giving or exchange of gifts
before or after marriage.

(2) Failure to register the marriage because the law says even after the marriage you m
ay register

PROCEDURE TO PERTIOTION AN ANNULMENT (Section 96 and 97)

PRESUMPTION OF MARRIAGE:

In the beginning it was the common law concept and under common law they call it
common law marriages in Tanzania we call it presumption of marriage. Presumption of
marriage is entered into without any formal marriage it is just by the agreement of the
parties to assume marriage relation, the requisite for the validity of presumption of
marriage the agreement to assume the marriage relation and the assumption of such
relation openly before the world, It can be proved by general reputation that how do
neighbours call you. The law says that such relationship must be continuous and
uninterrupted.

CASE: JOHN KIRAKWE vs. IDDI SIKO (1989) TLR 215

In this case the prerequisite of presumption of marriage were,, it was said that
presumed marriage exist where

- parties cohabit together for over 2 years

- parties have acquired the reputation of husband and wife

- there is no formal marriage between the parties

Section 160 (1) of LMA says that where it is proved that a man and woman hav ebeen
living together for 2 years or more in such circumstances they have acquired the
repuation of husband and wife there is a rebutable presumption that they are husband
and wife

CASE: FRANCIS LEO vs. PASCO MAGANGA (1978) LRT 22

In this case the reasoning of judge Mfalila was talking about section 160 and he said
that such section is confusing due to the fact that it does not automatically for 2 years to
transfer concubines into wives for presumption to raise the parties must have
undergone marriage ceremony, he continued and said it must also be noted that section
160 never cure defects which go to the root of marriage it can not be invoked to validate
marriage which was void ab initio for factors such as age and subsisting marriage. He
said cohabitation would be for their own peril(risk)

NB: it is said that such law is there to protect the right of women, and presumption of
marriage does not apply automatically , it is only applicable when there is a dispute.

CASE: NAFTAL JOSEPH KALALU vs. ANGELA MASHIRIMA CIVIL APPEAL 145 (2001)

Under presumption of marriage a woman shall be deemed a legal wife but you don’t
have the legal right to petition for divorce or separation, however the law gives you the
right to apply for maintenance for yourself and the children, you are also vested with the
right to apply for custody for the children and some other relief like division of
matrimonial property.

CASE: ANDREW MARTIN vs. GRACE CHRISTOPHER HIGH COURT CIV APPEAL 68 (2003) In this
case the judge reiterated the argument given in the case of HARUBUSHI SEIF vs. AMINA
RAJAB (1986) TLR 221 “ It is clear that the respondent and the appellant having not being
duly married in accordance with the formalities and procedures provided for in the law
the respondent had no legal right what so ever to petition either for divorce or
separation as provided under section 160 (2) of LMA.

EFFECTS OF MARRIAGE :

- companionship

-support and assistance

After marriage you acquire the status of husband and wife but also brings some special
rights and obligations.
RIGHTS AND OBLIGATIONS OF MARRIAGE:

LMA provides for equality of spouses which was supported by the constitution that all
people are equal, apart from this LMA also provides for the rights and liability of married
women, section 56 talks about two issues at the same time equality of spouses and right
of a married women. Section 57 talks about the equality of wives for those who have
more than one wife, the concern of such provision is on polygamous marriage.

After marriage the couples have a duty to respect support and assist each other, this
duty is a common law duty that spouses owe a duty to each other.

- Duty to love each other:

- Duty to assist and support each other:

- Duty to respect each other:

- Management of the family: both spouses have equal rights and obligations in the
management of your family example guiding of children is for both spouses, this is
because one of the purpose of marriage is companionship,

- Duty to cohabit: This is a fundamental obligation for spouses , if such duty is not
fulfilled the union may be destroyed in LMA we do not have an express provision on duty
to cohabit but there is an implied provision section 67

- the right to use husband’s Sir name. It is not provided by LMA, but she has a choice to
either use a husband sir name or add her husband’s sir name in her names. Although
you are not compelled to do so.

- marital confidentiality: no party to marriage is allowed to dispose any information

about the other spouses. Evidence Act says that couples have the right not to be
compelled to give evidence

- duty of husband to maintain a wife section 63 of LMA. Section 63 (b) Exception to the
duty says it shall be the duty of every wife who has the means to do so if the man is
incapacitated.
ISSUES OF PROPERTY RIGHTS BETWEEN HUSBAND AND WIFE

The law allows for a husband a wife to have common property and personal property,
section 58 of LMA provides for personal property.

Section 60 (a) talks about personal property of a spouse

Common property may be an income due to the fact that you have a common purpose.

Section 59 talks about matrimonial home as a common property as well as section 60

(b)

DEBTS OF SPOUSES

The law excludes spouses on debts incurred prior to marriage section 62 of LM A

however the law confers to the wife the right to pledge her husband’s credit. There is an
exception section 64 of LMA

To use such authority the following conditions must be fulfilled

- you must be living together

Exceptions: such authority will not be applied if the wife practices adultery

If you have sufficient means or allowance you can not use such authority

Section 61 talks about assumptions.

Section 65 talks about liability

The law prohibits to use corporal punishment section 65

Rights of widows section 68

GROUP ASSIGNMENT:

THE PROOF AND REGISTRATION OF MARRIAGE (section 42-55)

NEW TOPIC DISSOLUTION OF MARRIAGE

Sometimes a marriage may end and the reasons for dissolution of marriage can be
classified into to two parts

REASONS FOR DISSOLUTION

(i) BY OPERATION OF LAW: section 12 of LMA talks about duration of marriage

- death

-when someone disappear and is presumed dead

- when the essential conditions of marriage were not followed

(ii) The acts of parties themselves

- the actions of the parties may be done by separation and

by divorce

JURISDICTION OF COURTS IN MATRIMONIAL PROCEDURES

Section 76 of LMA provides for jurisdiction, where you can institute a matrimonial
proceedings

Says it is vested by 4 courts

(i) HIGH COURT

(ii) MAGISTRATE COURT

(iii) DISTRICT COURT

(iv) PRIMARY

The law says that in these issues the courts have concurrent jurisdiction but it is
advised to start in lower courts
Section 80 of LMA provides for an appeal and the law says if you are not satisfied by the
decisions of such courts then you may appeal to the High Court

Section 80 (2) the appeal should be filed in the magistrate court, if oyu are not satisfied
about the decision made in the High Court then you may appeal in the court of appeal

HOW TO INSTITUTE MATRIMONIAL PROCEEDINGS

There are two ways

Section 81 provides for such institution

- by way of petition ( in case of divorce, separation, decree of annulment)

- by way of chamber summons (maintenance, custody of children and other relief )

The law says that the petition must be read in open court but the law says before
instituting a case in court all matrimonial cases must start in marriage conciliation
boards section 101

(go read POWERS OF MARRIAGE CONCILLIATION BOOARDS (section 102-104) LMA

SEPARATION:

This means to live or being apart, the duty to cohabit is no longer there. But though you
are living apart, in separation the marriage is still valid and the justification for
separation is that to allow the parties to cool down their temper and to re think about
their relationship for reconciliation. Section 111 of LMA. You are not allowed to remarry
because the marriage still is valid.

TYPES OF SEPARATION

(1) VOLUNTARY SEPARATION

(2) LEGAL SEPARATION OR JUDICIAL SEPARATION

Section 99 of LMA the law says any marriage person may petition to the court 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.

(1) VOLUNATRAY SEPARATION (section 67 LMA )

The law says that the parties to a marriage may by writing signed by each other agree to
live apart and any such agreement must include maintenance and taking care of the
children. Such agreement is enforceable. Section 67 has a proviso

(2) LEGAL OR JUDICIAL SEPARATION:

This is provided under section 97 you are no longer married not divorced either, it is
accompanied by court order. Like property division, custody of children.

The effect of judicial separation is the same as for divorce, if you are under separation
for 2 years it may be a ground for divorce
DIVORCE

Limitations S.101 exceptions are in section 100

For any claim for petition it must be done after 2 years of marriage. But if teher are
issues before it may be possible to claim

Who may petition for divorce S.99

Talks about petition for divorce or separation but for divorce you must be in position to
prove that the marriage has broken down and can not be repaired again

NB: Conservative judges or bold they are strict.

S.105 provides for the parties to the petition

But when the ground on divorce is based on divorce you may join the other party as co
respondent

S.106 talks bout the content of petition

S.107 provides for the actions which must be used as evidence to prove that the
marriage has broken down and irreparable

S.107 (1) (a) when petitioning for divorce you must make sure your hands are clean.

S.107 (1) (b) you shall regard the customs of such parties because some cultures may
allow.

Sub section 2: you may have one evidence or more than one to prove that marriage has
broken down, although there is proof but it may not be a ground for getting such divorce.

Adultery is an act of voluntary sexual intercourse between two persons not married to
each other but one or both of them are married.

In adultery the petitioner must show that the respondent has committed adultery and he
or she finds it intolerable to live with him or her

Case of REDPATH Vs. REDPATH

In this case there was a married couple and after one year the wife complained that she
was raped by X, then X was charged with Rape and he was acquitted for luck of evidence
then the husband decided to file a petition for divorce, alleging that the wife committed
adultery with X, the issue before the court was whether adultery was

committed and the court said that the proof of intercourse how ever slight it is, it is
sufficient to prove adultery. You must prove the intercourse where there must be
penetration.

Mariam Tumbo Vs. Harold Tumbo: the petitioner was the wife and she claimed for
adultery and desertion, on adultery she alleged that the husband was cohabiting with
another woman, on the hearing the husband did not deny the issue of adultery but he
pleaded that my wife knew and kept quiet all this time so I thought she had allowed me
to continue with this life and the court stated that I have no hesitation in finding that
there was condemnation the petitioner must have felt slightly humiliated and offended
when the respondent took on the 2nd 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 respondent and registered her forgiveness she can not now petition for
divorce.

DENIS Vs. DENIS

In this case the husband was impotent however he spent a night in bed with another
woman thus creating an inference that he had committed adultery and it was
established that the husband had not penetrated the woman ,

Court said that there must be some penetration for an act of adultery to be proved.
Therefore adultery can not be proved unless there is penetration

THE STANDARD OF PROOF FOR ADULTERY

There are judges who base on proof beyond reasonable doubts

Some say we must prove on balance of probability ( because such petitioner may not
know what happens in the hotel or guest house).
BASTABLE Vs. BASTABLE:

There is a 2 couples of husband and wife and another became good friends and the
husband petitioned that the wife committed adultery,

HELD: the judge held that the burden of proof lies to the one who alleges. A high standard
of proof was required mere suspicions are not enough

OTHER CIRCUMSTANCES IN WHICH ADULTERY CAN BE PROVED (EVIDENCE)

- Cohabitation by the third person, you may raise or establish adultery

- conviction of bigamy, in monogamous marriage

- birth of a child

- spending a night in a hotel with another person.

- Venereal diseases (Gonorrhoea)

- cruelty: this is a behaviour which causes physical or mental harm to another person
especially a spouse whether intentionally or not.

SAID MOHAMMED Vs. ZENA ALLY (1985) TLR 13

In this case the husband had a habit to beat the wife and threatened to kill her and one
day he strike his wife neck in front of her in laws

HELD: The appellant conduct of not only beating but also undressed the wife in front of
other people and her father in law particularly was embarrassing and distressing, act of
cruelty which inflicted considerable physical and mental torture to the respondent the
petition was granted to the woman .

- Sexual perversion so as to reach climax S.107 (2) (b) ( Paraphilia )

Example Pedophilia they like children, Exhibitionism: exposure to genitals to strangers,

Vioralism being satisfied by look at other people having sex.

Fatalism: touc hing other people without their consent.

Fetishism: use of objects such dildos

Masochism: This is when an individual uses sexual fantasies such people a violating in
order to achieve sexual satisfaction

OTHERS

- Wilfully neglect on the part of the respondent for at least 3 years

- life imprisonment of the respondent or not less than 5 years

- mental illness of the respondent

- change of religion

NB: With adultery you may claim for compensation and petition for divorce
EFFECTS OF DISSOOLUTION OF MARRIAGE

Must ask for an ORDER for the following:

(1) CUSTODY AND MAINTENNACE OF CHILDREN

When a marriage has been dissolved by the court, the custody and mainetemace of
children must be discussed by the court and in doing so the court must ask its self some
questions because when we talk about issue of custody the custody itself has several
rights and responsibilities as well such as responsibilities of making sure that the child
is well kept, good treatment when the child is seek and giving him or her all basic needs
and also the child is growing in a good manner.

What determines a custody?

CUSTODY:

There is a principle of best interest of the child. This principle has been incorporated in
different international law example international convention of the irghts of the child
under A. 3 which states that in all actions concerning children whether undertaken by
public or private social welfare institutions, courts of law, adiminstartive authorities or
legislative bodies, the best interest of the child shall be a primary consideration.

The Child Act and the declaration of the rights of a child, the African Charter of the rights
of a child have stated the same thing, that the best interest of a child shall be of the
primary consideration

Principles :

(i) The principle of non-discrimination

(ii) Right to life and maximum survival development

(iii) Respect for the views of the child

OTHER FACTORS TAKEN INTO ACCOUNT

(i) The reasonable preference of the child, if the court deems that the child has suffcient
age in to express.

(ii) the child primary care taking

(iii) Intimence of the relationship between each parent and the child
(iv) the interaction and inter relationship of the child with a parent or parents

(v) The child’s adjustment to his home, school and community (change of environment)

(vi) Mental and physical health of all individuals involved. Example the child was
staying with tge parent and you want er or him to say with his or her Aunties and uncle
you must look at the mental and physical condition of the child.

Vii Cultural backgrounds of the parents before subjecting the child into any custody

HOW SUCH PRINCIPLES HVE BEEN REFLECTED BY THE MARRIAGE ACT

S.125 (1) of LMA says that the court may at any time by order place an infant in the
custody of his or her father or mother, or where there are exceptional circumstances
that the infant can not be entrusted to the father or mother they may place the child to
any relative either of a mother or father or an association.

MAY APPEAR IN THE UE:

Sub (2). says in deciding in whose custody n infant should be place the consideration
shall be the welfare of the infant and subject to this the court shall regard to the
following ,

- the wishes of the parents of the infant,

- the wishes of the infant where he or she is of an age to express and independent
opinion

Case:

Mother Haile Marriam v. Ato Berhane Derso: in thsi case the father had interim custody
of the child who was 5 years old , the court at the time on deciding the custody
requested the opinion of the child, the child responded that he wants to be with his
father because his father could take him to good school buy him thing that he needs and
also because his mother is a bad person, considering the age of the child which was
only 5 years the court stated that the child can not by himself without the influence of
the father say such thing about his mother and by considering other factors the court
awarded custody to the mother.

- The customs of the community to which the parties belong

Sub (3) talks about that there shall be a rebutable presumptions that it is for the good of
an infant of less than 7 years to be with his or her mother, but that is just a presumption.
So we look at the mother

- environment in which the child's view could be obtained. Make sure you do not ask in
front of the child.

Sub (4) where there are 2 or more children the court shall not be bound to place both in
the custody of the same custody but shall consider the welfare of the one being given
custody.

S.126, the order of custody may be accompanied by some conditions. (conditions for
custody).

S. 127 When a parent is not fit to be given custody of a child. During the determination on
where the child should stay the father or mother may apply and make a declaration that
the mother or father is unfit to have the custody of the child. Being unfit may be caused
of several issues such as molestation, cruelty.

S. 127 (2) Such declaration stays even when you die.

S.128 talks about issues of custody on marriages which ave been declared void or
voidance.

Says that the mother shall be entitled to the custody of the infant of the child if such
marriage has been annulled unless there is a contrary agreement

MAINTENANCE:

Reada this S.129 says that the man has the duty to maintain his infant children whether
there are of his custody or another person. Such maintenance shall be in paying
different costs such as school, basic needs such as clothing, or accommodation unless
he or she is married.

S.129 (2) when the man is dead or whereabouts are unknown or is not able to take care
then the mother will take care

Read S.130-137
DIVISION OF MATRIMONIAL PROPERTIES AND MAINTENANCE AS BTN HUSBAND AND WIFE

The Law says under S.114 the court shall have power when granting a decree of
separation or divorce , can order the division of the party of the assets of the couples. , if
property was acquired before marriage then it may be excluded but if it is during the
marriage all will be subject to be separated.

Sub 2) (a) The court must regard the customs and community to which the parties
belong.

(b) To the extent of the contribution made by each parties in money, property or work
towards the acquiring of the asset.

(c) When you jointly have a loan for building a house

(d)

Sub 3 reference to assets acquired during the marriage include assets

S.115 talks about the maintenance for spouse, the court may order a man to pay
maintenance to his wife or former wife, if he has refuse to provide as required by section
63

S.115 (2) the woman will provide when the man is incapacitated.

S.120 talks about the right of maintenance of a woman from her former spouse until she
is remarried.

Read CASE: BI HAWA MOHAMED

UE QUESTIONS ON THESE CASES

Read S.116-124 together With the case of BI HAWA MOHAMED Vs. ALLY SEIF (1984) TLR 32

MOHAMMED ABDALLAH Vs. HALIMA LISANGWE (1988) TLR 197

SELESTINE KILALA vs. RESTITUTA KILALA (1980) TLR 77

HEMED TAMIM vs. RENATA MASHAYO ( 1994) TLR 197

HARUBUSHI SEUF vs. AMINA RAJABU (1986) TLR 221

MIRIAM GOLIATI Vs. DANIEL GORIATI AND JOYCE MAS HCM MAT. CLAUSE 8 2004.

ELIESTER FILEMON LIPANGAHELA vs. DAUDI MAKUHANA HC Cil. App 139 (2002)
ANDREW MARTIN vs. GRACE CHRISTOPHER HC. Cil Appl 68 (2003)

UE QNS READ THE FOLLOWING

READ : ISLAMIC MARRIAGE, DIVORCE AND TYPES

OFFENCES (IN THE ACT )

BREACH OF PROMISE TO MARRY

Section 12 of Child Act defines whho the child is and provids for the best ineterest of the
child.

Section 4 (2) talks about best interest o fthe child

Best interest of the child this are matters that are beneficial to the child.

FETAURES WHICH DETERMINE THE BEST INTEREST

- issues of emotional ties and relationship btn the child and the parents, when deciding
anything regarding a child look at the relationship the child has with other relatives or
siblings.

- the capacity o fthe parents to provide a safe home and adequate food, clothing and
medical care,

- Mental and physical health needs of the child in any matter regadring the child make
sure you consider.

- but also consider mental and physical health of parents or guardians

- presence of domestic violence at home

THE PRINCIPLE OF NON DISCRIMINATION

Section 5 of Child Act talks about it and says that there should not be any kind of
discrimination for child. In Tanzania a child has rght to name and nationality and know
his bilogical parents and extended family.

Section 5 (2) L.C.ASays you should not deprive your child on his right to name and know
their biological parents

The birth of your child must be registered

Section 7 Law of Child Act talk about the right of a child to grow with parents

Section 7 (2) is a an exception where by unless it decided by court that living with
parents or family shall lead to a significant harm or serious abuse therefore and shall
not have the best interest of the child.

Section 8 of L.C.A provides or imposes a duty of parents to maintain the child such as
education , guidance and right to play as well.
Section 8 (3) of L.C.A there are some religion denies medical care where by it says that a
person shall not deny medical care for a child due to religion.

- right to sports and activities can not be denied unless it is in the best interest of the
child

-Child with disability shall not be treated in un undignified matter and should be raised
in such aw

Section 9of L.C.A talks about the child has right to life, leasure, liberty and education
from his parents

Section 9 (4) says the parental responsibilities may be transfered to a relative of the
parents

Section 10 Right to parental property, right to inherit

Section 11 provides for the right of opinion this is a civil right, he can participate in
decision which is of his interest

Section 12 Harmful employment

Section 13 talsk about protection of torture, most public schools in Tanzania violate this
law, but also includes cultulral practices.

Section 13 (2) make sure that the child is in a position o funderstanding the correction,
meaning he or she must be in the age of undersatnding

Section 14 says any person who violates this Act commits an offence

DUTY OF A CHILD

- Work for the family

- Repsect his paremts

- Help his family

- Preserve cultural practices of the country

CHILD CARE AND PROTECTION

The word child protection is a broader term used for efforts to safeguard children from
actions or situation that place thei health development and well being at risk. We are
talking about from all types of violence and abuse and neglect.

Child protection as provide by UNISEF means to prevent and respond to violence

exploitation and abuse against childern and it includes measures to prevent children
from physical , sexual, emotional or psychological abuse, commercial sexual
exploitation, child trafficking, child labour abuse at home, school and community and
harmful and abusive traditional practices such FGM and child marriage.

WHY IS IT IMPORTANT TO PROTECT CHILDREN

- becaus ethey are mentally and physically immature

Section 16 of L.C.A provides for kind of children who needs to be protected.

- Orphan

- abondoned

- neglected by the guardians

- has a parent who does not exercise proper duty of mainataining the child.

- unable childs in the streets

- beggers

- under a care of a destitute child

- under a company of criminal

- residing in a house which involves prostitution

- a person who is found acting in a manner of which he has been soliciting for immoral
purposes

- if that chil dis under a person who has a disability to the point that he can not protect
the child
Section 17 talks about child protection and imposes a liability that a a child should not
go to clubs.

A person shall not sell ciggarretes or intoxicating substance to a child. Fine is not less
than 1 million but not exceeding 5 millions but may be imprisoned for not less than 1
2months.

WHEN CHILD NEED PROTECTION BECAUSE OF CIRCUMSTANCES UNDER SECTION 16

Section 18 talks about care order of court to be of benefit to a child.

When a child is under dangerous circumstances a court may issue a care order or an
interim care order on appliaction by social welfare offcer for the benefit of the child, the
aim of the care order is to remove the child from any situation where he is suffering or
likely to suffer , after the officer takes the custody of the child then he may determine
where to take this chid and among the places is to an approved residential home or to a
fit person, an approved foster parent ( mzazi wa kambo) in accordance with the fooster
care placement rules.

When you hav eplaced the child under the care order then section 19 provides for
supervision

Section 20 provides for the duty of a social welfare. Social welfare may ask to vary the
order of the court

Section 21 is about the home visiting where the social welfare officer is permitted by
law and the parent must permit such officer to visit the child at home or any approved
residential homes.

Sometimes a child who is placed under care order may infringe such right section 22
says when that happens he may be apprehended without warrant by a police officer,
ward officer or social welfare officer he must be returned to the appropriate place.

Section 24 is about care order and adoption, if a child I splaced under a care order for a
particular time and the oarent does not show an interest in the welfare of the child the
court may take it to the next stage meaning the stage of adoption.

Secttion 25 talska bout the objectives of care order

Section 26 talks about child righrs where parents separate or divorced, a child has right
to maintenance and education, right to live with a parent who is to be fit as approved by
the court and may visit any of teh arents anytime
Section 27 talks about foster care placement and we have regulation on foster care
placement, Foster Care Placement Regulation GN.153 of 2012

Section 27 and 32 are read together for understanding on how an application of foster
care is made

How to apply for forster care and the conditions attached to foster care? ( test )

Section 22 talks about conditions to foster care

Part V from section 24 talks a bout Parantage,custody access and Maintenance

Parantage is the act of asking for taking care of a child.

Section 34 talks about appliaction for parantage, a person may apply and know how is
his or her parents according to the law. Such appliaction may be made before the child
is born or after the death of the parents or after the child can attain the age of 18.

Example if you havent married a lady but has your baby and she dies the dad may ask for
parantage and take care if his child

Section 35 provides for evidence of parantage

- the name of the paranet enetered in the registrar

- any marriage in L.M.A

- performance of customary ceremony by father of the child.

- public acknoledegement of parentage

- DNA results

Section 35 (2)

Section 37 talks about caring, an dcustody of the child.

Section 39 talks about consideration for custody or access

Section 41 imposes a duty to maintain a child

Section 42 appliaction for maintenace order

Section 43 Maintenance order against alleged biological father, an application may be
made against the alleged father by the expectant mother before the birth of the child, or
at anytime within 24 months from the birth of the child.

Excpettion section 43 (2) the court may refuse to grant maintenance order where the
man alleged is….

Consideration fo rmaintenenace order are under section 44 you must consider the
income of the father.

PART VI talks about foster care and adoption

A foster parent means a person who is not the parent of the child and is willing and
capable to under take the care , welfare and maintenance o fthe child.

ADOPTION

This is a system of being a parent to a child even if you are not the bilogical parent of
such child but will have all rights of the adoptive father including right to inherit

Theer are 2 types

Open adoption: means adoption of the child by a relative

Closed adoption: This means the parent may not even know who adopted his or her
child.

Appliaction fo radoption may be made jointly.

Read section 56

Section 56 provides for restrictions of making an adoption order.

- must be 25 years and atleast 21 years older of the children.

- single men are not allowed to adopt

Section 56 (2) a male applicatant shall be granted an adoption order if such application
involves a son

- applicant and child resides abroad

Foster parents may adopt a child

Subsection 2

Section 61 talks about knowledge of the child being adopted

Section 63 is appliaction by non- resident

Read Section 64 talks about effect of adoption on parental rights

Section 65 talks about devolution on property on inheritance

Section 74-76 talks about adoption by foreigners.

Part VII talks about employment of a child and there are rules of Employment and Labour
Relations General Regulayions of 2017 G.N 47 of 2017 part II of this regulation talks about
employment prohibitions.

Section 83 talks about prohibition o fsexual exploitation, section 87 talks about

apprenticeship which also has a regulation The law of the Child

Section 89 talks about responsibility of a craftman

Part VIII talks about supoert services to a child by local government authorities

The law says it is the law of the local government to safeguard the welfare of children

Read the role of the local government in safe guard of child’s welfare section 94

Section 95 talks about the duty to report infringement of child rights.

IX A child in conflict with law

There are rules called law of the child juvinale court procedure G.N 182 of 2016 read this

Read Section 97 of L.C.A establishes a juvinale court, they do not say a child committed
a crime so they say that he is in conflict with law. The C.J may assign any primary court to
deal with such case and it must be presided by the Resident Magistrate.

Procedures are provided by the Juvinale Court procedures, but also provided in the
regulation as well as the Act.
 Section 99 talks about the procedures of a child in conflict with law

Section 100 when a chil dis discharged jointly with an adult

Section 101 talks about bail for a child. He is entitled to bail unless the charge is one o
fhomicide or any offence which involves imprisonment of 7 years

- the child should be put in different places with adults while in custody

- it has jurisdiction to dispose all other case but except homicide case, the juvinale
case has no jurisdition to deal with homicide cases but may use commital proceedings.

Read all those remaining section

The child Act provides day care centres

There are procedures on how to apply section 147

There people that have been prohibited to run a care centre section 148

There is a regulation of day care centre

There are miscelleneous provisions

Juvinale court ( test ) know their procedures.