Introduction
TERMINATION OF MARRIAGE: DIVORCE
Before the reform of the law of divorce, which began during the early 1970s, much time was spent by textbook writers delving into the nature and definition of various grounds for divorce. Such an exposition would be followed by a discussion relating to ancillary orders such as division of family assets and child custody. Today the importance of divorce law has declined somewhat in many common law jurisdictions. At the same time we have witnessed the growing importance of the law relating to division of family assets and child custody.
The main factor accounting for the decline in the jurisprudential importance of the law of divorce is the liberalization of divorce law along with the movement from the fault based to a non-fault based divorce law. The liberalisation of divorce brought about what came to be known as the divorce revolution expressed in the unprecedented rise in the divorce rates in much of Western Europe and North America. This development led some analysts to question whether the new law was not responsible for the breaking up of families. But contrary to such thinking, the fact was that social change and changes in gender relations in many parts of the world had led to the realization that the law could not compel married couples to live together if they did not wish to do so.[1] It was also recognized that the breakdown of marriage was not necessarily the fault of one of the spouses. More likely, each spouse had contributed, in varying degrees, to the breakdown of the marriage.
What the law could do was to recognise the fact that a marriage, that had been voluntary from the beginning and greatly desired by both parties, had now collapsed and one or both spouses did not want it anymore. The new law sought to recognise this unfortunate fact and to design a procedure that would minimize bitterness between the couple end the marriage while encouraging the couple to co-operate in the upbringing of their minor children (if any). The foregoing is the legal context into which the Tanzania Law of Marriage 1971 was born and which provides the essential background to the object of our divorce law.
The Concept of No-Fault Divorce
Under the old law a decree of divorce was granted only to the innocent party on proof of a specific matrimonial offence. The most common offences included adultery, cruelty and desertion. They were often subjected by lawyers to careful jurisprudential analysis in order to determine first, the essentials of these offences and second to establish, as if it was a criminal trial, whether the respondent was guilty or not guilty as alleged. In order to secure a finding of guilty, the petitioner was required to adduce detailed evidence to show that the respondent was guilty of any one of the offences.[2] Needless to mention these trials often generated acrimony and bitterness between the parties. It exacerbated the already tense or openly hostile relations between the divorcing couple.[3] This situation made it difficult for divorcing couples to make genuine efforts to co-operate in the upbringing of the minor children of the marriage. The result was the child custody was greatly contested, with one parent seeking to have custody of the children and to try to exclude the other from participating in the upbringing of their children.
The concept of no-fault divorce, as noted above, emerged from the realization that the breakdown of marriage was not exclusively the sole responsibility of one party to the marriage. Rather, each party was responsible to a greater or lesser extent for the breakdown of the marriage. In England a report of the Archbishop of Canterbury, published in 1966 concluded that the fault-based divorce did more harm than good to the society and recommended the introduction of the no-fault divorce.[4] As will be noted below, the introduction of a no-fault divorce amounted to a paradigm shift along with the introduction of the doctrine of breakdown of marriage.[5]
It was also argued then that the mere proof that a specific matrimonial offence had been committed should not entitle the petitioner to an automatic decree of divorce. This was because proof that an ‘offence’ had been committed did not necessarily mean that the marriage had broken down irretrievably. That proof of a matrimonial offence should be taken as evidence rather than proof that the marriage had broken down beyond redemption. In the end the decision to grant a decree of divorce rests with the divorce court which has to make the inference from the proof of any of the eight facts whether or not the marriage has indeed broken down irreparably. As noted by Rebecca Probert, once any one of the facts has been proved by the petitioner, there will be such a strong presumption that the marriage has broken down irreparably broken down “that it is almost impossible for the respondent to rebut the presumption.”[6] and (cases where the respondent vehemently claims he/she still love the petitioner see Le Merchant v Le Merchant [1977] 1WLR 559.
Mediation as Precondition to Divorce
Part of the post 1970s divorce law was the idea that many marriages would be saved if couples were given an opportunity to discuss their disputes before an informal body. Such a body would have the mandate to mediate and try to reconcile the couple and only when the informal mediation fails then the couple would be permitted to approach formal institutions such as a court of law. As noted by Onyiuke J, the requirement for prior mediation before making a formal petition for divorce is to allow a cooling off period and for some attempt at reconciliation.[7] Moreover in the African social context mediation is not a novel idea because for generations married couples have used family members, neighbours and elders to settle their marital disputes.
In 1971 section 102 LMA institutionalised the mediation practice and made it a pre-condition for divorce.[8] It provided for the establishment, in every ward, a body to be known as a Marriage Conciliation Board. It also empowered the Minister responsible for legal affairs to designate existing mediation bodies in the community as Boards [9]if the Minister is satisfied that “a community in Tanzania has established for itself a committee or body of persons to perform the functions of a Marriage Conciliatory Board” and the Minister considers it desirable that such a body be designated as a Board for that community.[10]
The Board shall consist of a Chairman and not less than two and not more than five other members (s 103 LMA). The Board has power to regulate its own procedure and such procedure is expected to be informal. The Board may require the attendance of witnesses and if such witnesses fail to turn up, the Board may seek the assistance of the court to issue formal court summons. In addition to the evidence that parties may bring before the Board, the Board itself may make its own enquiries as it considers appropriate in order to reach its decision. Advocates are not permitted to appear before the Board but family members may appear to represent parties. Where the Board is unable to reconcile the parties it shall issue a certificate setting out its findings and any recommendations relevant to the dispute as it may think appropriate. It may also issue a certificate where the en
It is also provided under s 101(f) that the requirement for prior appearance before the Board shall not apply “where the court is satisfied that there are extraordinary circumstances which make reference to the Board impracticable”. The term ‘impracticable’ according to Onyiuke J include a consideration of what can be achieved by a reference to a Board having regard to the extraordinary circumstances. Moreover, extraordinary circumstances may cover a variety of situations including the gravity of the matrimonial offence. For example, “persistent incestuous association of one of the parties to the marriage, as opposed to ordinary adulterous association may well make a reference to a Board a useless exercise and therefore impracticable.”[11]But, according to Onyiuke J, each case must depend on its particular facts.[12]
In Zinat Khan v Adullla Khan[13], the petitioner did not refer the matter to the Board on the ground that the respondent husband was violent to her and had threatened her and the children with death if she took “any step which is calculated to lead to the dissolution of the marriage.” Onyiuke J held, that neither the husband’s violent temper and assaults to the petitioner nor the threat to kill her and children were sufficient to amount to extraordinary circumstances within the meaning of s 101(f) LMA.
The Two Year Rule
Section 100 (1) LMA states that no person shall, “without the prior leave of the court, petition for divorce within two years from the date of the marriage which it is sought to dissolve.” It is stated further under s 100(2) that the leave of court shall not be granted except “where it is shown that exceptional hardship is being suffered by the person applying for such leave.”
Provisions restricting divorce within a short period after marriage is found in many family legislation in many jurisdictions especially in the common law world. The object is to discourage newly married couples from to rushing out of a marriage when they face frustrations or disillusionment about their married life. The policy of the law is that newly married couples ought to be patient with one another and try to make a success of their marriage instead of rushing to a divorce court whenever they face problems of self-adjustment. Although this is a commendable policy it is not sufficient deterrence agains a determined would be petitioner. For example, the provision does not forbid newly married couples from deserting one another or obtaining a decree of judicial separation while patiently waiting for the two year period to elapse. (any cases where the two-year rule has been applied or waived?)
Irretrievable Breakdown of Marriage
The acceptance of the argument that proof of a matrimonial offence did not necessarily mean the petitioner’s marriage had broken down beyond recall led to the introduction of the doctrine of irretrievable breakdown of marriage. This idea is now contained in section 107(1) LMA which states 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 107 (2) LMA which adds that “the court may accept any one or more of the following matters as evidence that the marriage has broken down but proof of any such matter shall not entitle a party as of right to a decree.”[14] In Edna Gombanila v Andrew Gombanila 1974 LRT n 65, Mwakasendo J held that the question whether or not a marriage has broken down irreparably is one of fact to be inferred from all the evidence brought before the court. But as Mwakasendo J also noted, in Edna (above) the mere proof of one or more of the matters described in s 107 LMA does not by itself entitle the petitioner to a decree of divorce (s107(2)LMA).
As will be noted below further indicators of the departure from the fault-based divorce law appear in the use of neutral language to remove any implications of fault or blame. This is despite the fact that judges continue to use the terms “matrimonial offences” out of sheer habit and presumably because the term “matters” does not seem to them to deliver the full gravity of what justifies the court in granting a decree of divorce.
Grounds for Divorce
The movement away from a fault-based to a no-fault divorce required a change in the language of the divorce law to reflect the paradigm shift. The change involved a move from the term ‘offence’ to a less accusatorial term called ‘matters’. Thus 107(2) LMA refers to the various former matrimonial offences such as adultery and cruelty as ‘matters’ to be proved by the petitioner. Indeed, it is no longer accurate to speak of more than one ground for divorce. The correct view is that there is a two-stage process which begins with proof by the petitioner of one or more ‘matters’ to the satisfaction of the court. This stage ends with the finding by the court that a marriage has broken down. Once the ‘matter’ or matters, as the case may be, are established by evidence as facts, there follows the second stage which is provided under s 108 (d) LMA that is, “where the court is satisfied that the marriage has broken down, to consider whether the breakdown of the marriage is irreparable”. It is only when the court concludes that the marriage has broken down irretrievably that it shall grant a decree of divorce. Indeed, the court is required by law to grant a divorce once it has made such a finding.[15]
In the light of the above discussion, it is submitted that there is only one ground for divorce under the LMA. That is, the court’s finding, based on matter(s) proved by the petitioner, that the marriage has broken down irreparably.
This approach conflicts with the finding of Biron J in Warioba Butiku v Perucy Muganda Butiku [1987]TLR 1 (HC) that “where the parties have agreed on sufficient issues of fact and law raised in their pleadings, the court may pronounce judgement and order accordingly” per Biron J. The problem with Butiku, in my view, is that it conflicts with s 108(a) LMA which requires the court “to inquire, so far as it reasonably can, into the acts alleged and to consider whether those facts, or such of them as are proved, show that the marriage has broken down.” There is a two stage process under s 108 (a); first, the parties must prove to the satisfaction of the court that the marriage has broken down. Next the court must evaluate the evidence and conclude that basing on the facts proved, it makes a finding that the marriage has broken down irreparably.
Furthermore, the proviso to Rule 28 of the MCA (dealing with the consequences of non-appearance of the parties) appears to support my argument in so far as it states that “in no case shall the court pass a decree in favour of the petitioner for the reliefs suggested by him by reason only of the non-appearance of the respondent or co-respondent, and in every such case the court shall proceed to hear the petition ex-parte and determine the issue involved on the basis of the evidence adduced by the petitioner (emphasis supplied).
Commenting on the power of the court to grant a decree of divorce Mwakasendo J stressed that according to section 109 LMA “no court has any right to dissolve any marriage without first being satisfied that the marriage has, on the evidence given, broken down irreparably.”[16] In Butiku, the court did not follow the two stage process because it relied on the fact that the parties were not at issue and therefore there was no need to lead any evidence to establish that the marriage had in fact broken down.
Therefore, and despite its acceptance by some High Court judges, if Butiku were to be accepted as good law, this would amount to the law permitting divorce by consent.[17] Divorce by consent is not provided for under the Law of Marriage Act 1971.
Evidence of Marriage Breakdown (Matters)
There are nine ‘matters’ listed under s 107 LMA. The court may accept any one of these, if proved, as evidence that the petitioner’s marriage has broken down. As noted above, before 1971 most of these matters were known as grounds for divorce. It was important for the petitioner to prove these grounds meticulously before a decree of divorce could be granted. However, with the rise of the single ground of divorce and the related concept of the breakdown of marriage, the importance of these “matters” has gone down considerably. The current significance of the old grounds of divorce (now referred to as matters), is that in a petition for separation or divorce, the petitioner has to prove one or more of these matters as evidence that the marriage has broken down leaving it to the court (in the case of divorce) to infer from such evidence whether or not the marriage has broken down irreparably.[18] These ‘matters’ are considered below.
a) Adultery
Proof of adultery committed by the respondent constitutes evidence that the marriage has broken down. This is particularly “when more than one act of adultery has been committed or where an adulterous association is continued despite protest.” An act of adultery is committed where a married man or married woman engages in an act of voluntary sexual intercourse with a person of the opposite sex (whether or not that person is married). Evidence of adultery may be direct or circumstantial. Circumstantial evidence may include communications between the respondent and the alleged lover where reference is made to the act of adultery having been committed. Birth of an extra-marital child by the wife constitutes sufficient evidence of adultery.[19]What is important here is for the petitioner to show that the respondent’s adultery has resulted in the breakdown of the marriage. There is an implied assumption in s 107(2)(a) LMA that the mere act of adultery does not by itself constitute evidence that the marriage has broken down. This may be the case where a single act of adultery is committed under circumstances where it is unlikely to be repeated and where the respondent has expressed remorse and apologised. In Mariam Tumbo v Harold Tumbo 1983 TLR 293 the respondent husband contracted a monogamous marriage with the petitioner. He later took another “wife” under customary law. It was held that the respondent had committed adultery within the meaning of s 107(2)(a) LMA. Such a finding would surprise many men who are happily married to what Lugakingira J refer to a concubines[20]
b) Sexual Perversion
Section 107(2)(b) states that sexual perversion committed by one of the parties to the marriage constitutes evidence that the marriage has broken down. The word sexual perversion according to the Oxford Concise Dictionary means “preference for an abnormal form of sexual activity” [21] In Halima Athumani v Maulidi Hamisi 1991 TLR 179 (HC) the wife alleged that her husband insisted to have sex against the order of nature which she vehemently resisted. This is clear evidence of an abnormal form of sexual activity which is why the wife strongly objected to it. Other abnormal forms of sexual activity would qualify under s 107(2)(b) LMA and thus lead to the breakdown of marriage if they are unacceptable to the other spouse.
c) Cruelty
Section 107(2)(c) LMA provides that the respondent’s cruelty, whether mental or physical, inflicted upon the petitioner or on the minor children of the family constitutes evidence that the marriage has broken down. The term cruelty has been retained from the old law of divorce. In England and Wales which, as noted above, was among the first jurisdictions to introduce the concept of breakdown of marriage, the term cruelty was scrapped and replaced by the fact of “behaviour”. According to section 1(2)(b) of the Matrimonial Causes Act (1973) the court will accept evidence that a marriage has broken down where “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him”. It would appear that the fact of “behaviour” as evidence of marriage breakdown is more consistent with the concept of breakdown of marriage adopted by the Law of Marriage Act. It could therefore be taken as comparable to the term ‘cruelty’ used in the Tanzania LMA.[22]
In Julia Mazengo v Jackson Leganga 1986 TLR 244 (HC) the wife petitioned for divorce at a local Primary Court on the ground that the respondent husband used to subject her to beatings. There was evidence that the husband had assaulted the petitioner on three occasions. Once the petitioner was nine months pregnant when she was assaulted. Basing on this evidence the trial court found that the marriage had broken down irreparably and granted a decree of divorce. On appeal by the husband, the District reversed the lower court’s finding by holding that there was insufficient evidence to show that the parties’ marriage had broken down irreparably. On further appeal by the wife to the High Court, Samatta J upheld the decision of the trial court noting that there was sufficient evidence to show that the marriage had broken down and that the breakdown was irreparable. According to Samatta J,
“the ill-treatment to which the respondent has been subjecting the appellant cannot, in my considered opinion, be described as the reasonable wear and tear of married life.[23] The law does not expect a wife to put up with the kind of ill-treatment the respondent has been subjecting the appellant to.”
Cruelty may be divided into two types, namely; physical and mental cruelty. Physical cruelty involves actual violence including physical assaults.[24] Mental cruelty does not necessarily include physical assaults though in practice the two types tend to occur together.[25] A good example of mental cruelty is Elizabeth Kamulindwa[26]where the wife suffered from anxiety and depression due to her husband’s alcoholism.
The next question is what kind of conduct would meet the test for cruelty? The test under English law is objective in the sense that the question to be answered by the court after considering the evidence is whether, given the evidence proved in court, it would be reasonable to expect the petitioner to live with the respondent.[27] But as noted by Rebecca Probert, “the court must consider the particular parties to the suit before it, not ‘ordinary reasonable spouses’[28] In O’Neill v O’Neill [1975] 1WLR 1118 the English Court of Appeal noted that the test is contained in the question: “Would any right-thinking person come to the conclusion that this husband has behaved in such a way that his wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?” In Julia Mazengo (cited above) the District Court appears to have placed the threshold of tolerance too high by expecting a wife to put with regular beatings from her husband.[29]
It would be helpful to note that the test of cruelty in O’Neill v O’Neill (cited above) is helpful and capable of standing the test of time. In other words, the court should evaluate the evidence by considering the subjective spouse rather than a reasonable spouse.
d) Wilful Neglect
The word neglectaccording to the Oxford Concise Dictionary has the following meaning: fail to care for; not pay attention; disregard. When foregoing expressions are qualified by the word “wilful” then the term wilful neglect means intentional failure to care for or wilful disregard of the needs of the other spouse. The word wilful must be interpreted to include all actions and omissions whose natural consequence would amount to the neglect of the other spouse.[30] In Ashok Kumar Chhaganlal Chohan v Minax Ashok Kumar Chhaganlal[31]the respondent wife “stopped cooking or serving food to the petitioner, and refused to have sexual relations with ... the petitioner as she was boasting of her boy-friend from Tanga, named ‘Sachin’.”[32] We have noted in Lecture Five that marriage creates a mutual right to consortium. In this sense wilful neglect of the needs of the other spouse belongs to the same class as mental cruelty depending on what is being neglected. Thus wilful neglect could take the form of economic neglect where the husband neglects to provide for the wife’s basic needs. Wilful neglect could also take the form of emotional neglect where one spouse loses interest in the company of the other as noted in Ashok Kumar, cited above.
e) Wilful Desertion
According to section 107(2)(c), the court may accept evidence that desertion has been committed by the respondent “were the court is satisfied that it is wilful”. In Ashok Kumar,[33] “the respondent went to Tanga with her uncle on the 4th April 1979 and had not returned up to the time of the hearing of the petition in 1982.” The term desertion consists of two elements. The first is the act of physical separation from the petitioner; and the second is the intention of the respondent to terminate consortium rights. But to satisfy the law’s requirement, desertion must continue for a period of at least three years. A shorter period or desertion is not sufficient evidence of marriage breakdown.[34]It is important to mention two additional components of desertion. The first is simple desertion and the second is constructive desertion. Simple desertion takes place when the respondent vacates the matrimonial home with the intention of terminating consortium rights. Constructive desertion takes place when the respondent, by his or her conduct makes it intolerable for the petitioner to continue to reside in the matrimonial home. In the later case, the deserter is the person who stays in the matrimonial home and the deserted spouse is the one who leaves.
f) Separation
The term being in separation applies to a married couple when they are living apart either through voluntary separation or by court order following a decree of judicial separation.[35] In either case parties are said to be separated when they no longer render to each other consortium rights. Separation must be distinguished from desertion. In the case of desertion, one party, usually the petitioner, is not happy about the fact of desertion and prefers cohabitation to continue. In the case of voluntary separation both parties wish to live apart. And, in the case of judicial separation, there is a court order entitling the petitioner to live apart.
g) Imprisonment of the Respondent
The law recognises that the primary object of marriage is greatly undermined by reason of the respondent’s imprisoned for a term not less than five years. In considering whether or not the fact of imprisonment leads to the breakdown of marriage, the court is have regard to the length of imprisonment as well as the nature of the offence for which it is imposed. The implication of the above provisions is that it is not merely the length of imprisonment that is seen to undermine fundamentally the marriage contract. It is also the particular offence for which the imprisonment is imposed. For example, where the respondent is guilty of serious offences such as murder or burglary with violence, it is to be expected that the other spouse my not be prepared to continue the marriage relationship.
h) Incurable Mental Illness
In order for mental illness to constitute evidence that the couple’s marriage has broken down, two doctors, one of whom is a psychiatrist, have to certify that there is no hope of cure or recovery of the respondent. Here again the state of the respondent’s health is such that it undermines the primary object of marriage and makes it difficult or impracticable to carry on a normal married life. The requirement that the mental illness must be incurable would appear to set the standard too high. This is so especially in view of the three year and five year thresholds for separation, desertion, and the respondent’s imprisonment. Perhaps the better view would be to include the fact of mental illness for three or five years as constituting evidence that the marriage has broken down irrespective of the respondent’s chances of future recovery.
i) Change of Religion
If long imprisonment is viewed as undermining the primary object of marriage so is change of religion by the respondent. Where the couple belongs to a particular religion and its social life revolves around deep held religious beliefs and observance, it is predictable that change of religion by the respondent has the effect of not only alienating the couple but also it is not reasonable to expect the other party to tolerate this and continue with the marriage as if nothing has happened. Indeed, according s 107(2)(i) LMA the court will make a finding that a marriage has broken down irreparably where both parties follow the same religion at the time of marriage and where according to the laws of that faith a change of religion has the effect either of dissolving the marriage or constitutes a ground for divorce.
7.7 Cross-Petition by the Respondent
Before completing this part it should be noted that on a petition for divorce the respondent is also permitted to cross-petition for divorce on the same or other matters. In the event the petitioner fails to prove that the marriage has irreparably broken down, and instead of dismissing the plain as the law requires, the court my instead consider the cross-petition and order accordingly. In Edna Gombanila[36] the petitioner failed to prove that his marriage had broken down irreparably based on the conduct of the respondent wife. But the appellate court, basing on the respondent’s cross petition, was able to grant a decree of divorce. (check LMA for specific provisions)
Special Divorce Procedure for Islamic Marriages
Parties married under Islamic law have two options. They may petition for divorce following the normal procedure under s 107(1) and (2) LMA as discussed above. In the alternative, they may take advantage of section 107(3) LMA which provides a special procedure for divorce.[37] The special procedure merely requires that the parties, who are married in accordance with Islamic law shall initially refer their dispute to a Marriage Conciliatory Board (MCB). The MCBs, as noted above, are established by the Minister responsible for legal affairs under sections 102 LMA.[38]Apart from MCBs operating under the umbrella of the Department of Social Welfare, there also MCBs formed by Islamic leaders whose task is to try and reconcile parties.[39] The first stage is for the parties to refer the matter to the MCB. At the MCB any of the two things may happen. The parties may become reconciled thus bringing the dispute to an end or the MCB may fail to reconcile the parties in which case it must issue a certificate to that effect.
And where, following the issue of a certificate by the MCB, either party does an ‘act’ or ‘thing’ which, under Islamic law, would dissolve their marriage, then the parties may make an application to a court of law and “the court shall make a finding that the marriage has irreparably broken down and proceed to grant a decree of divorce” (s 103(c)LMA).
Since 1971 the special procedure for terminating Islamic marriages has generated a number of conflicting judicial interpretations. The conflicting decisions fall roughly into three groups. The first is represented by Rattansi v Rattansi.[40] In this case the parties, who had contracted an Islamic marriage, referred their marital dispute to the MCB. The Board having failed to reconcile them, issued a certificate to that effect. Thereafter, the parties did not do any ‘act’ or ‘thing’ (under s 107(3)LMA) but instead applied to the court for a decree of divorce. Katiti Ag J (as he then was) held, dismissing the application, that since the parties had not done any ‘act’ or ‘thing’ as stipulated under s 107(3) LMA, the court had no power to issue a divorce decree.
The second group of decisions consist of cases where, instead of referring their dispute to the MCB, the husband purports to dissolve the marriage in accordance with Islamic law. Thereafter one of the parties, usually the wife, applies to the court for ancillary relief. In such cases, the courts have refused to order such ancillary relief on the ground that the marriage is still subsisting. As note by Samatta Ag J (as he was then) “except in case where the provisions of s 107(3) of the Law of Marriage Act 1971 apply, a court of law is empowered to grant a decree of divorce only if it is satisfied that the marriage in question has irreparably broken down”[41] In such cases some judges have opted to hear the application as if it was an ordinary divorce application under s 107(2)LMA by taking evidence to determine whether or not the marriage had broken down irretrievably.
The third group of decisions are represented by Ashura Salim v Ali Said[42] where the wife, married under Islamic law, petitioned for divorce in a local primary court on the ground of cruelty. She did not rely on the special divorce procedure under s 107(3)LMA. The primary court rejected her petition on the ground that there was insufficient evidence to prove cruelty under the Law of Marriage Act 1971. On appeal to the High Court, Mwakasendo Ag J (as he then was) upheld the appeal on the ground that the lower court should not have dismissed the petition without first considering whether the evidence available before the court was “of the kind that would, but for the provisions of the Law of Marriage Act, have been held under Islamic law to amount to a valid ground for dissolution of a Mohamedan marriage.” The appellate court then evaluated the evidence given at the trial court and concluded that there was sufficient evidence to order a divorce under Islamic law. The appellate court then made a finding that the marriage had irretrievably broken down and ordered a divorce.
In an article published in 1989[43] I argued that the approach adopted in Ashura (above) was that the appellate court had introduced an Islamic law standard of proof under s 107(2) LMA while using the phraseology of s 107(3) LMA. I expressed doubt that such an approach was in compliance with the LMA. It is clear from the evidence that the alleged cruelty took place during the marriage while according to s 107(3) the ‘act’ or ‘thing’ must take place after the parties have been to the MCB and obtained a certificate that the Board has failed to reconcile them.
In sum, the judicial differences noted above can be resolved as follows. If parties married under Islamic law strictly comply with s 107(3) LMA the court should declare that the marriage has broken down irreparably and proceed to grant a divorce decree. If, on the other hand, parties do not comply with s 107(3)LMA, then the court instead of dismissing the application/petition should hear the matter under s 107(1) and (2).
Hamida Hamad Out Law Jo See also Ward Tribunals Act which appears to change the law on MCBs). In 1991 Mwalusanya J held that parties married under Islamic law are free to refer their matrimonial dispute to a non-Islamic MCB and the certificates issued by these bodies are recognised under the law.[44]
Legal Consequences of Divorce
The most important legal consequences of divorce are: first, that divorce brings to an end a legal relationship of marriage between the parties. This means all rights and obligations created by marriage come to an end, except as the court may direct as part of the post-divorce settlement. Second, divorce entitles the parties to apply for certain relief such as division of matrimonial property and custody of children. As will be noted below, the court has no jurisdiction to divide matrimonial property except, upon “granting or subsequent to the grant of a decree of separation or divorce..”. Third, divorce enables the wife to remarry and, in the case of a husband, where the marriage is monogamous, to regain his legal capacity to marry. It should be emphasized that divorce does not affect the status of parent along with its corresponding rights and responsibilities.
Divorce and Legal Pluralism
There are as many forms of divorce as there are forms of marriage in Tanzania. As noted above, the primary object of the Law of Marriage Act 1971 was to integrate the existing systems of personal law and to bring them under one umbrella legislation. As noted above, the creation of special provisions for Islamic couples was intended to preserve, albeit partially, the husband’s right to dissolve his marriage in accordance with Islamic law. At the same time the law wanted to protect the wife and children of the marriage by requiring the involvement of state courts at the exit point. As noted above, such arrangements have not been entirely smooth.
In the case of non-Muslim couples the LMA did not specifically make special provisions for them.[45]There is thus a uniform law for divorce for the rest of the population irrespective of the form of marriage contracted by the parties. But this is as far as the LMA is concerned. In practice, however, couples married under customary law do consider themselves fully divorced until they have undergone customary divorce procedures. Thus where bride wealth was given, the husband will demand some of it back especially if the marriage did not result in many children. And the wife’s family might regard such an obligation as binding upon them. There are indeed many cases in which former sons in law sue their fathers in law claiming refund of bridewealth[46]
Summary and Conclusion
The law of divorce has undergone a great deal of change not only in Tanzania but also in Africa and beyond. The thrust of the change has been a movement away from a fault based divorce to one based on the irretrievable breakdown of marriage. Furthermore, there has been a general acceptance that the breakdown of marriage is not entirely the fault of one party but each party contributes, in varying degrees, to the breakdown of the marriage. Such change in the perception of divorce has resulted in the liberalisation of the divorce law and led in turn to what in the west has come to be known as the divorce revolution. Today, divorce rates all over the world have gone up and the old stigma that was formerly attached to divorce has almost disappeared.
In the 21st century, in many parts of the world, there has been a paradigm shift in that the law is now more concerned with the protection of weaker family members after divorce than in maintaining unhappy marriages. Such paradigm shift implies that law students must pay more attention to the law relating to the protection of family members from domestic violence and lack of economic support, especially for wives and children, during marriage. Equally important is the law relating to post-divorce remedies such post-divorce maintenance, division of matrimonial property, care and upbringing of minor children of the marriage. It is to these matters that this discussion will now turn.
Bibliogrphy
B. Rwezaura and U Wanitzek (1988) Family Law Reform in Tanzania: A Socio-Legal Report, 2 International Journal of Law, Policy and the Family 1
Ali El Buhriy Kitabu cha Nikahi (year and publisher?)
B A Rwezaura, The Court of Appeal of Tanzania and the Development of the Law of Domestic Relations, Eastern Africa Law Review Vol 16 No 2 Dec 1989, pp146-186
Citations
[1] Section 140 of the Law of Marriage Act [Cap 29 R.E. 2002] states that “No proceedings may be brought to compel a wife to live with her husband or husband to live with his wife, but it shall be competent for a spouse who has been deserted to refer the matter to a Board.”
[2]See the observations by Onyiuke J in Zinat Khan v Abdulla Khan 1973 LRT n 57 at 243
[3] Section 107 Law of Marriage Act states 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; in particular, the court may accept proof of one or more of the matters enumerated under s 107(2) as evidence that the marriage has broken down. As will be noted in this Lecture, these “matters” include, among others, adultery, cruelty, desertion and willful neglect. In practice certain judges continue to look at these “matters” as if they were the old “matrimonial offences” and there are indications in some of the post-1971 cases that courts have not clearly departed from the pre-1971 divorce jurisprudence.
[4] Putting Asunder
[5]There are, however, certain provisions in the LMA which appear to contradict the paradigm shift. For example, s 107(1)(a) LMA states that the court shall not grant a decree of divorce where the petition is founded exclusively on the petitioner’s own wrong doing unless the court for any special reason otherwise directs. In Athanas Makungwa v Darini Hassani 1983 TLR 132 (HC) the court found as a fact that the marriage had broken down irreparably due to the conduct of the petitioner. It did not, however, order a divorce because this would have contravened s 107(1)(a) and no special reason was found by the court . Had the respondent cross- petitioned for divorce he would have been granted a divorce decree instead. It is neither unusual nor unexpected to find the old ideas on divorce carried over into the new divorce law. This is usually a legislative strategy designed to accommodate divergent views within the same society. See B Rwezaura, ‘Recent Developments in the Divorce Law of Hong Kong: Towards Minimal Adjudication and Consensual Divorce. Hong Kong Law Journal Vol 26 Part 1 (1996) pp 81-103
[6] Rebecca Probert, Cretney’s Family Law, 5thEd Sweet & Maxwell (2003) p 53
[7] In Zinat Khan v Abdulla Khan 1973 n 57 at 243
[8] s 101 LMA states, “No person shall petition for divorce unless he or she has first referred the matrimonial dispute or matter to a Board and the Board has certified that it has failed to reconcile the parties.” The section is followed by six grounds which render inapplicable the requirement for conciliation. See also s106(2) LMA.
[9] s 102(2) LMA provides that where the Minister is satisfied that any community in Tanzania has established for itself a committee or body of persons to perform functions of a Marriage Conciliation Board…the Minister may so designate such a committee or body of persons to be a Board.
[10] There are a number of such community- based and faith- based bodies that perform the functions of the Board including officials of the Department of Social Welfare.
[11]In Zinat Khan v Abdulla Khan 1973 LRT 51 at 245. Followed in Mariam Tumbo v Harold Tumbo 1983 TLR 293 where the Board was afraid to summon the respondent husband (a State Intelligence Officer) and decided to give a letter to the wife to petition for divorce. Lugakingira J did not base his decision on this point but took the view that “the various steps taken by the Petitioner, the difficulties and frustrations she met, the performance and admitted competence of the Board (in fact Boards) bring the case within the ambit of para (f) of the proviso to s 101 of the Law of Marriage Act 1971.”
[12]In Halima Athumani v Maulidi Hamisi 1991 TLR 179(HC) Mwalusanya J, relying on Zinat Khan held that extraordinary circumstances would include cases where “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.” In Halima the Board had issued a letter to the wife without summoning the husband. Mwalusanya J held that having read through the letter of the Board “one cannot fail to see that it was found useless to call the husband for reconciliation as it would be a waste of time and effort. Thus the Primary Court was entitled to proceed to hear the case even if it had not been referred to the Board.
[13] Cited above
[14] See Charles Aoko v Dorina Gibonga 1988 TLR 44(HC) where it was held that two incidents of wife-beating viewed in a wider context of the five year marriage were insufficient to lead the court to the finding that the parties’ marriage had broken down irreparably. See also Edna Gombanila v Andrew Gombanila 1974 LRT n 65 per Mwakasendo J
[15]See Edna Gombanila v Andrew Gombanila 1974 LRT n 65
[16] Edna Gombanila v Andrew Gombanila1974 LRT n 65, at p277
[17] Divorce by consent is not permitted by the LMA. Indeed, s 107(2) states that mere proof of any of the matters stipulated under s 107 “shall not entitle a party as of right to a decree-“ This provision once again stresses the two stage approach discussed above. Moreover, if the court is to accept the word of the parties that the marriage has broken down irreparably without making its own enquiries what safeguards are there against collusion by both parties to secure a decree of divorce at their whim? It has to be recognised that society has an interest in the preservation of marriage beyond the narrow interests or emotional decisions of the two parties. This is more so where there are minor children of the marriage.
[18]Edna Gombanila v Andrew Gombanila 1974 LRT n 65
[19]In Pulcheria Pundugu v Samwel Huma Pundugu (1985) TLR 79 (HC) the court noted that the respondent willingly had sexual intercourse with another woman while the marriage between him and the petitioner was subsisting. “This was adultery by the respondent and therefore a matrimonial offence under s 107(2) LMA. As a result of the respondent’s adultery with the said Penina, two children have been born.” The use of the term “matrimonial offence” is a slip from the old law. Adultery, cruelty, desertion, wilful neglect, etc; are no longer matrimonial offences as such but “matters” under s 107(2) LMA. The change in the language is consistent with the law’s move away from the matrimonial offence doctrine to the principle of irretrievable breakdown of marriage.
[20] “In the African society, polygamy is neither a secret nor an outrage. Neither statute nor foreign propaganda have succeeded in engendering a change of attitude. There are therefore countless “wives” who are in effect concubines.” Per Lugakingira J in Mariam Tumbo v Harold Tumbo 1983 TLR 293
[21]The Concise Oxford Dictionary of Current English, 9th Ed Edited by Della Thompson, Clarendon Press, Oxford (1995), 1021
[22] With such an approach it would be unnecessary to analyze the fact of cruelty in such detail as if we are dealing with the old law of divorce based on the matrimonial offence doctrine. See Mariam Tumbo v Harold Tumbo 1983 TLR 293 (HC) for a useful analysis on the differences between the pre-1969 English divorce law and the post-1971 Tanzania divorce law.
[23]This District Court had relied on McEwan v McEwan (1946) 108 Sol Jol 198 where Denning LJ had stated that married couples had to put up with each other’s temperament and defect of character as ordinary incidents of married life. But even as early as 1946 Denning LJ had gone on to state that there may come a time when such defects of character or temperament “may be such as to amount to cruelty, but it all depends on the facts of the case.”
[24]Mariam Tumbo v Harold Tumbo 183 TLR 293
[25]In Saidi Mohamed v Zena Ally 1985 TLR 13 (HC) the husband beat up his wife during which he also stripped her naked before other people including her father –in- law. In his judgement granting her petition for divorce, Lubuva J noted that the “appellant’s conduct of not only beating but also of undressing her in front of other people and particularly her father-in-law was no doubt a most embarrassing and distressing act of cruelty which inflicted considerable physical and mental torture on the Respondent.”
[26]Elizabeth Kamulindwa v Austin Kamulindwa 1974 LRT n 11
[27]In Gollins v Gollins [1963] 2All E R 966 Lord Pearce stated that it was impossible to provide a comprehensive definition of cruelty, “but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is I think, cruelty if a reasonable person, after taking due account of the temperament and all other particular circumstances, could consider that the conduct complained of is such that this spouse should not be called upon to tolerate” p 992 (emphasis by BAR).
[28] at p 57
[29]See also Elizabeth Kamulindwa v Austin Kamulindwa 1974 LRT n11 where Kimicha J held that the court should not seek to maintain a marriage where the petitioner would very likely commit suicide or die of recurrent gastric haemorrhage due to the conduct of the respondent.
[30]It is not necessary to prove actual intention. It is enough to show that a person of sound mind is taken tointend the natural consequences of his action. See Gollins v Gollins [1964] AC 693 HL.
[31]DSM High Court Matrimonial Civil Cause No 21 of 1980 per Ruhumbika J
[32]At page 1 of the typed judgement.
[33] DSM High Court Matrimonial Civil Cause No 21 of 1980 per Ruhumbika J (see fn 83 above).
[34] The requirement that desertion must be at least three years implies that the respondent’s desertion for periods shorter than three years cannot be added up to constitute the required three years of desertion. In other words, the period of three years must be continuous and uninterrupted.
[35]In Bjarne Alling v Hasna Jivraj Alling (DSM Matrimonial Cause No 5 of 2000 per Shangwa J) “On 16.10.1997 both parties agreed to live in separation and the court of the Resident Magistrate at Kisutu did record their agreement to live in separation.” On page 2 of the typed judgement
[36] Cited above
[37]Halima Athumani v Maulid Hamisi 1991 TLR 179 (HC) per Mwalusanya J
[38] See Halim Athumani (above) where Mwalusanya J held that parties married in accordance with Islamic law are free to select any MCB for purposes of s 101 LMA.
[39] For a discussion of how these Boards operate in practice, see B Rwezaura and U Wanitzek (1988)
[40] [1975] LRT n 55
[41] Abdallah Saidi v Manamkuu Yusufu [ 1978] LRT n 43. See also Haruna Makwata v Fatuma Mselemu[1978] LRT n 8
[42]DSM High Court (PC) Matrimonial Civil Appeal No 39/73 (unreported)
[43] B A Rwezaura, ‘The Court of Appeal of Tanzania and the Development of the Law of Domestic Relations’ Vol 16 No 2 (1989) Eastern Africa Law Review, Faculty of Law, University of Dar es Salaam,
[44] See Halima Athumani v Maulid Hamis (1991)TLR 179
[45] Note however that in deciding whether or not the marriage has broken down irreparably the could shall also “have regard to the customs of the community to the parties belong.” LMA s 107(1)(b)
[46] cases
