Introduction
Having examined the law of nullity and its effects let us now consider briefly the legal consequences attaching to a valid marriage. This section looks at the rights and obligations of marriage between the parties and to a lesser extent its effects on third parties. Some of these rights and obligations are well captured by Part IV and V of the Law of Marriage Act.
The term consortium means “living together as husband and wife with all the incidents that flow from that relationship”.[1]According to Lord Reid, consortium is difficult to define with any precision given that it depends on the circumstances of the parties such as age, health and economic status. It can be likened to a bundle of rights some of which are incapable of precise definition.[2]Despite the lack precision there are certain rights and obligations that are widely recognised as flowing from the state of being married. These include the mutual right to cohabit, to maintenance, to reside in the matrimonial home, to inherit upon the other spouse’s death intestate, to use the surname of the other spouse and to claim damages against a third party for interfering with his or her consortium.
Cohabitation
There is a strong presumption that upon marriage the spouses will begin living together as husband and wife. In the African cultural context, a customary marriage ceremony includes a moment when the bride is symbolically handed over to the prospective husband or his family. In the eye of the law, the spouse’s duty to cohabit is expressed indirectly by certain legal provisions. These include the law relating, for example, to the spouse’s right to reside in the matrimonial home (s 59LMA), the right to petition for divorce on the ground of desertion or prolonged separation or living apart (s.107(2)(e),(f)&(g))[3]and the right to claim damages on the ground of adultery or enticement.[4]Perhaps more direct is section 111 LMA which states that a decree of judicial separation “shall relieve the parties of the duty to cohabit and to render each other help and companionship and…of the duty to maintain each other..” We now turn to the duty to maintain a spouse.
Maintenance
Closely connected with the mutual duty to cohabit is the spouse’s duty to maintain the other. Section 63 LMA states that “it shall be the duty of every husband to maintain his wife or wives and to provide them with such accommodation, clothing and food as may be reasonable having regard to his means and station in life.” And where the husband has neglected his duty to maintain the wife or wives, the law entitles the wife to pledge the husband’s credit; to borrow money in his name or to use any of his money left with her in order to meet her basic needs (s 64 LMA).
Although under the Law of Marriage Act the primary duty to maintain a spouse is placed on the husband, the wife is also obliged to maintain her husband if she has the means to do so and if the husband is incapacitated, whether wholly or partially, from earning a livelihood (s 63(b)). The foregoing provision suggests that if both spouses have the means, it is the husband who has the primary obligation to maintain the wife.
But although the law is lenient upon the wife, reflecting the economic and cultural realities of Tanzania, in practice wives do shoulder considerable burden of maintaining the family, sometimes even surpassing their husbands. What needs to be stressed here is that marriage creates a mutual duty upon the spouses to maintain one another in accordance with each spouse’s ability. If both spouses have the means, the duty to maintain one another must fall equally on both.
Right to reside in the Matrimonial Home
The duty to cohabit also presupposes a physical space where the spouses will reside.[5] Section 59(1) LMA states in effect that where the matrimonial home belongs to one of the spouses, that spouse, “shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, gift, lease, mortgage, or otherwise..”. Moreover, the other spouse shall be deemed to have an interest in that property which is capable of being legally protected “by caveat, caution, or otherwise under any law for the time being in force relating to the registration of title to land or deeds.”
Where, in contravention of the above provisions, the spouse nonetheless alienates the said matrimonial home, then the other spouse’s occupation rights shall take priority over the rights of the buyer for as long as the marriage subsists.[6]It is also stated under s 159(3) LMA that should the owner- spouse desert the other, then the deserted spouse shall not be liable to be evicted from the matrimonial home by or at the instance of the owning spouse. (Additional provisions from the Land Acts.. See Binamungu, 149-153, 106 fn 281 and the Rent Restriction Act Cap 339)
It is clear from the foregoing provisions that the right to reside in the matrimonial home is a form of a charge or encumbrance on the property and is intended to secure the occupation rights of the other spouse. It is available to the non-owning spouse by virtue of the marriage and not otherwise.
Section 59 LMA has been invoked typically by wives in cases where a husband purports to alienate the matrimonial home without the wife’s knowledge and consent. In Hadija Mnene,[7] the wife was granted a right to continue to reside in the matrimonial home under s 59(2) LMA notwithstanding the fact that the sale of the matrimonial home was held to be valid. Given that most wives were either unwilling or unaware of their rights under s 59 LMA it was decided to enhance the protection by further enactment. But position of the wife was further strengthened in 2006 following the enactment in 2006 of the Land Act.[8]
Intestate Inheritance
Our law of inheritance lags behind the law of marriage in that it makes no explicit provisions for the protection of a surviving spouse on the other’s death intestate. This is in line with most of the existing African customary laws. But in recent years some High Court judges have handed down a number of decisions to the effect that such customary laws are discriminatory and unconstitutional. The judges have held that a widow has a right to a descent share of the estate upon the death of her husband. Indeed, others have relied on s 114 of the Law of Marriage Act, arguing that since upon divorce or separation a wife is entitled to a share of the matrimonial assets, then a widow should be taken as a co-owner of the estate and her share should be set aside before the estate is divided up.[9](Rabiuzima etc Constitutionalization of family law).
Damages for Adultery and Enticement
Section 72 LMA provides that a husband or wife may bring a suit to claim damages against any person with whom his or her spouse has committed adultery. This provision has two origins. The first is the English common law version which dates back in time when the husband was the only person entitled to claim damages on the ground that the defendant had violated the husband’s consortium rights.[10] The cause of action was known as criminal conversation, otherwise known as crim con. The wife was not entitled to make such claim since she did not possess such a (property) right in the person of her husband. The husband was also entitled to take out an action for restitution of conjugal rights (RCR) against his wife and this entitled him to compel his wife to return to the matrimonial home.[11]With the rise of gender equality this cause of action, along with its associated damages for enticement, were either abolished or extended to the wife. Section 72 LMA originated from that source.
The second source is African customary law which takes a similar view as the old English common law that upon marriage the wife falls under the control of the husband. He is then entitled to her company and services. Thus the husband may compel his wife to cohabit with him and in the old days he could compel her to engage in marital intercourse without committing the offence of rape or indecent assault. Since 1971, “no proceedings may be brought to compel a wife to live with her husband…”[12]
The existence of the foregoing provision is clear evidence that the subjection of the married woman to the command and control of the husband is now a matter of history. Thus it would be argued that instead of extending the right to claim damages for adultery to the wife, s 72 LMA ought instead to have abolished that right altogether. Such conduct whether by the wife or husband should, as it is now, be redressed solely under the law of separation or divorce.
Use of Surname
Although it is common practice, upon marriage, for wives to use their husband’s surnames, there is in fact no law requiring them to do so. Hence, wives may choose to change their names, to retain their maiden names, or to add their husband’s name to their existing maiden names using an hyphen. According to Peter Bromley, “an adult may use any surname he chooses provided that his intention is not to perpetrate a fraud”. Thus a former wife may continue to use her former husband’s name and an unmarried woman is also free to use the surname of a man she is living with provided such use is not intended to defraud or mislead anyone. Since this procedure is not governed by our marriage law, it is necessary for the wife to effect such a change by taking oath before a Commissioner for Oaths to that effect.[13]Although some men my frown at the idea, it is also permissible upon marriage for a man to change his surname to that of his wife. This is not practised in many jurisdictions except in Sweden where the law of names was revised in 1983 to permit men to adopt the maiden names of their wives or the names of their partner, as well as for women to adopt their husband's name.[14]
5.2.6 The Limits of Marriage
It has been noted above that Part IV and V of the Law of Marriage Act (LMA) encapsulate a number of legal consequences of marriage. I should add that there are . some provisions in Part IV and V (LMA) which seek to limit the effect of marriage by making it clear that marriage does not bring about certain legal effects. For example, s 58 LMA states that a marriage shall not operate to change the ownership of any property to which either the husband or the wife may be entitled. Nor shall marriage prevent either the husband or the wife from acquiring, holding and disposing of any property. Similarly spouses retain their legal capacity to contract, to sue and their individual liability to be sued in contract and tort. And the husband is no longer held liable for the torts committed by his wife. But as we shall see, the wife may borrow money in the name of the husband for the purchase of food and other necessaries of life.[15]
Another important provision is section 66 LMA which makes it clear that “notwithstanding any custom to the contrary, no person has any right to inflict corporal punishment on his or her spouse.” Although this section is couched in gender neutral terms, its primary object is to caution men that they are not permitted to beat their wives even if doing so may appear to be permitted by their customs. These and comparable provisions are a departure from the old English Common law and customary law where marriage resulted in the subjection of women to the control of their husbands. Indeed the so called doctrine of unity of the husband and wife had the effect of taking away the wife’s capacity to acquire and hold any property in her own name nor to contract, sue and to be sued in contract and tort. The husband on the other hand was held liable for the debts of his wife as well as in respect of her torts. All this was abolished by the LMA and this accounts for some of the provisions in Part IV and V LMA which seek to make it clear that marriage does not have certain effects.
Criminal Law and Evidence
Section 130(1) of the Evidence Act 1967 (Cap xx R E 2000) states that, a husband or wife is a competent but not a compellable witness for the prosecution. As noted by Mapigano J “a spouse can therefore elect to give evidence or decline to give evidence on behalf of the prosecution”[16] Moreover s 130(2) requires the court to make this provision known to the particular spouse before he or she elects to give evidence for the prosecution. The court must also make record of this fact in the record of proceedings otherwise such evidence is inadmissible. But a spouse is both competent and compellable witness for the prosecution where “a person charged is charged in respect of an act or omission affecting the person or property of the wife or husband o such a person or the children of either of them.” (s130 (2)(b) check Evidence Act).[17]The primary object of the above rules is to protect marital confidences while also allowing a spouse to decide on his or her own whether or not to give evidence for the prosecution against his or her spouse. In the event the offence relates to the person or property of the other spouse of their children, no such protection is given or indeed required.
To be noted also is the change introduced in 1971 by the Law of Marriage Act which replaced s 274 of the Penal Code to make is clear and to declare that “a husband may be guilty of stealing from his wife or a wife from her husband. This is a necessary consequence of Part IV (ss 56, 58 and 60-62) LMA relating to separate ownership of property between spouses.
Summary and Conclusion
One of the main legal consequence of marriage, as noted above, is the spouse’s mutual right to the other’s consortium. This is indeed the foundation upon which other rights and obligations emanate. Even the law of evidence which makes a spouse a competent but not compellable witness against the other in criminal trials is intended to protect private and intimate communications between a husband and wife. Similarly, the law which until 1971 provided that a husband and wife cannot legally conspire was based on the English common law view that a husband and wife have one mind in law.
But we also need to recognize that the law on this subject exhibits the relics of the English common law that subjected married women to the control of their husbands. Moreover, we should also reflect on the removal such subjection and think how this process might bear the seeds, not only of total spousal equality, but also of the tendency to eliminate the difference between married and unmarried couples thus rendering the concept of marriage increasingly an unnecessary legal concept.[18]
BIBLIOGRAPHY
Eric Clive, ‘Marriage; an Unnecessary Legal Concept?’ in J Eekelaar and S Katz (eds) Marriage and Cohabitation in Contemporary Societies (1980) Butterworths pp 71-82
Jonathan Herring (ed)
P M Bromley and N V Lowe, Bromley’s Family Law, 7th Ed (1987) pp 103-147
citation
[1] See P M Bromley and N Lowe, Bromley’s Family Law, Butterworths (ELBS) 8thed 1992 at p 107
[2] See Best v Samuel Fox & Co Ltd [1952] AC 716, at 736 cited in P M Bromley and N Lowe (op cit) at 110.
[3] Section 67 of the Law of Marriage Act states that spouses may make a written agreement to live apart and “any such agreement, including any provisions as to maintenance, matrimonial property and the custody of the infant children, if any, of the marriage shall be valid and enforceable.” See also s 107(2)(e)
[4] See s 72 and 73 LMA
[5]The term ‘matrimonial home’ is defined by s 2(1) LMA to mean, “the building or part of a building in which the husband and wife ordinarily reside together and includes--- (a) where a building and its cartilage are occupied for residential purposes only, that cartilage and any outbuildings thereon; and (b) where a building is on or occupied in conjunction with agricultural land, any land allocated by the husband or wife, as the case may be, to his or her spouse for her or his exclusive use.”
[6] See s 59(1) and (2) LMA.
[7]Hadija Mnene v Ally Maberi Mbaga and the National Bank of Commerce, (Mwanza) High Court, Civ App No 40 of 1995 (per Lugakingira J) unreported (cited in CS Byamungu, Thesis) at p115-116).
[8]See GN No 43 of 2006. See also Samwel Olung’a Igogo and Two Others v Social Action Trust Fund and Ors [2005] TLR 343
[9] See B. Rwezaura and U. Wanitzek ’ The Constitutionalisation of Family Law in Tanzania’ (2006) in A Bainham Ed. International Survey of Family Law, 444, at 445
[10]See Bromley’s Family Law, PM Bromley and NV Lowe 7th ed ( 1987) pp 105-118
[11] See P M Bromely and N Lowe (op cit) at pp 107-111
[12] Section 140 Law of Marriage Act [Cap 29 R.E. 2002]
[13] According to P M Bromley and N Lowe, op cit. “the execution and enrolment of a deed poll merely provide evidence of the executant’s intention to be known by a different name and have no other legal significance.” at p 110 fn 9.
[14] See Wikipedia Free Encyclopaedia.
[15]See Section xx LMA
[16]Kotia Magomba v Republic 1974 LRT n 35
[17]Republic v Kihandika Lwenyakali , 1973 LRT n 91 per Onyiuke J where the court also held that the expression “ the person or property of the wife” includes a co-wife. According to Onyiuke J “where a husband commits an offence, e.g. an assault, against a member of his family such as one of his wives or any of their children, I can see no reason in principle for not making any of his wives who witnessed the incident a compellable witness.” p392
[18] See Eric Clive in Eekelaar (1982?)
