Scope of Family Law
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Before embarking on the study of family law it is essential to determine its scope by drawing boundaries around a specific area so that we can identify what is in and what is outside our field of study. However, it should be noted that the exercise of setting boundaries has to be arbitrary and artificial. It is done primarily for the sake of convenience and content management. Under normal conditions, the subject of family law can be very wide. It would cover any law touching on or having an effect on the family. And the term ‘family’ as we shall see shortly is also wide and difficult to define.
For purposes of this study, family law includes the law (or laws) relating to the formation of marriage; the factors or conditions affecting the validity of marriage; the rights and obligations arising from marriage; protection of family members from harm and hardships including financial difficulties. It also covers the law governing property relations between the spouses; dissolution of marriage and consequential matters such as post-divorce (and post-separation) maintenance and division of matrimonial assets.
Where a married couple has infant children, family law makes provisions for determining who will have their care. The law relating to the status and rights of the child within the family also falls under this branch of the law. It also covers the law of adoption, guardianship, foster care, and child support.
Given the plurality of our laws governing the family, it is not possible to study family law without considering the interaction between various laws relating to the family within our legal system. Consideration of the historical background of various laws relating to the family will also be made in order to give the student a deeper understanding of the law and its current state and future development.
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At the end of this post reader will:
i) Become aware of the boundaries of family law;
ii) Acquire an understanding of the subject of family law by focusing on what family law does (functionalist approach) instead of what it is;
iii) Grasp the sources of family law;
iv) Understand the relationship between family law and legal pluralism; and
v) Understand the connection between family law and social change.
Functions of Family Law
The four primary functions of family law are: constitutive, regulatory, protective and re-constitutive. The constitutive function involves turning a man and woman into husband and wife and more generally making provision for the establishment of family relationships. Family law also regulates the relations between family members as well as their relations with outsiders. It plays a protective function in cases of domestic violence, including matters such asspousal and child abuse and makes provisions for economic support for weaker family members including children.
When parties cannot live together as a family, the law dissolves their existing relationships and re-constitutes them into non-family members such as divorcees and grants them capacity to form family relationships with others. It must be conceded that certain relationships such as parenthood cannot be dissolved at will. And for those of the Roman Catholic faith, only death can legally put husband and wife asunder.
Family law also performs the protective function, especially in relation to the weaker family members such as wives and minor children of the family. The law of divorce, which is part of family law, has the function of dissolving the marriage relationship between the couple thus turning them into semi-strangers. On divorce, the parties to a monogamous marriage regain their legal capacity to marry. There are also provisions under the law of adoption for an adopted child to be re-adopted by another family.
The idea of conceptualizing family law in terms of what it does, rather than merely what it is, enables the student to think more clearly about the subject and to develop an analytical framework that seeks to evaluate the extent to which the law does or fails to performthose functions and whether such functions are exclusively performed by law or in partnership with other social forces.
Family Law and Legal Pluralism
It has been noted above that one cannot study family law without at the same time also studying legal pluralism. This is primarily because of the history of our legal system which includes the imposition of colonial law upon the subject population and their indigenous legal systems. It is also a history of Tanzania's contact and ultimately adoption of non-indigenous religions such as Christianity, Islam, Hinduism and Budhism. Each religion has its origins from a different civilization with its own legal history and its own system of family law.
During the British colonial era, the law permitted each social group and each religious group to operate its own family law system. The law also made available a neutral system of state law which was ostensiblynon-religious and non-indigenous. It permitted certain individuals to cross over cultural lines or membership of one religion and take advantage of the family law system that appeared tothem to be most convenient. For example, a person from the Sukuma ethnic group could marry under Sukuma customary law or under Islamic law if that person was a Muslim. He could also opt to marry under the civil law system thus taking advantage of existing statutory law.
The existence of multiple systems of family law in a single legal system gave rise to a number of problems. These include the existence of different legal consequences of marriage and different remedies basing on the system of law selected by an individual. It was also necessary for the courts to determine which law was applicable in a given case where an individual appeared to be subject to more than one system of personal law.[1]Courts had to develop a new jurisprudence of choice of law and to deal with what came to be widely known as internal conflict of laws.[2]
In order to put an end to these and other related problems and to reform the law, a single piece of legislation was enacted that became known as the Law of Marriage Act of 1971. This was followed in 2009 by the Law of the Child Act.
Sources of Family Law
The sources family law, include the Constitution of the United Republic of Tanzania, as amended from time to time, the general law (or statutory law), customary law, Islamic law, Hindu law, case law, and various elements of foreign law which are recognized by our legal system. A number of regional and international human rights treaties to which Tanzania is a party constitute sources of family law. As will be noted later, courts do draw on these treaties, when appropriate, to decide family law disputes.
Family Law and Social Change
It is appropriate to raise at the outset the question of family law and social change. This is because, like legal pluralism, social change cuts across all areas of family law. For example, family relations are greatly affected by social change. Matters such as the age at which one chooses to get married or the person one wishes to marry are matters that may change over time with greater attainment of education by women. Social change does also generate different expectations in inter-spousal relations and may move a society towards gender equality.
Parent and child relations are also affected by social change. Greater social awareness of the rights of the child has the effect of undermining certain aspects of parental authority while also increasing parental responsibilities. Marital tensions may increase due to the weakening of extended family bonds and the rise of the nuclear family as a source of emotional support. The rise in the divorce rate, especially in urban areas, is often associated with a number of factors including the rise of the nuclear family as an economic entity and a source of emotional support.
In recent years, Tanzania has experienced a sharp rise in intermarriages between many ethnic groups. This development will give rise to changes in relations between spouses and their children. It will also generate change in the way children are raised. Relations between in-laws will also change, including relations between children and their grandparents as well as their extended family.
In sum a student of family law cannot ignore social change given that it is a cross-cutting factor and generates forces that affect the day to day application of family law. It also generates conditions that in time may call for the need to reform the law in order to accommodate change.
Summary and ConclusionThis lecture has raised key and recurrent issues. It seeks to provide to the student a convenient entry point into the subject of family law. The lecture has identified the boundaries of the subject and offered an outline of what family law seeks to do. The plurality of laws in which family law is embedded has been identified as a cross-cutting issue while also pointing at the sources of the subject. The significance of social change to the study of family law has been underlined and its potential to generate pressure for reform has been stressed. The themes outlined above in this lecture will remain with us throughout the entire course and need to be kept in mind at all times.
References:
F Banda (2005) Women, Law and Human Rights: An African Perspective, Hart Publishing, Oxford (esp pp 13-40).
G F A Sawyerr (1967) Internal Conflict of Laws in East Africa in Sawyerr GFA (ed) East African Law and Social Change, Nairobi, East African Publishing House pp 110-71
B A Rwezaura and U Wanitzek, Family Law Reform in Tanzania: A Social-Legal Report, International Journal of Law and the Family2 (1988) 1-26
B A Rwezaura, The Integration of Personal Laws: Tanzania’s Experience, Zimbabwe Law Journal Vol, 1 & 2, 85-96
E Cotran, Integration of Courts and Application of Customary Law in Kenya, East African Law Journal, Vol 4 (1968) 14-20
United Republic of Tanzania, Government Paper No. 1 of 1969 Government Proposals on Uniform Law of Marriage, (The White Paper) Dar es Salaam, Government Printer.
United Republic of Tanzania, Law Reform Commission of Tanzania, Report of the Commission on Law of Marriage Act, 1971 (No 5 of 1971) April 1994.
The Republic of Kenya, Report of the Commission on the Law of Marriage and Divorce, The Spry Report, Nairobi, Government Printer (1968)
Citations
[1]The case of Mohamed Ndwata v Hamisi Omari 1988 TLR 137 was described by Samatta J (as he then was) as a “somewhat unusual” . The claimant husband sued his father in law for recovery of dowry and various traditional payments he made when he married the respondent’s daughter. The [marriage] was set aside by a Primary Court in an earlier case on the ground that the wife had unreasonably refused to consummate the marriage. The case went all the way to the High Court even though the amount being claimed was by far smaller than the cost of litigation. It seemed the former husband strongly believed he was entitled to claim everything because the wife had refused to have the marriage consummated. Samatta J held, dismissing the former husband’s appeal, that “whatever the legal position might have been under the Customary Law or the Islamic Law, the law now, as I apprehend it, is that once the marriage has taken place, any gifts, whether traditional or otherwise, given in contemplation of the marriage, become the absolute property of the recipients.” Citing s 3A of the JALO, Cap 453, the learned judge noted that “any rules of Customary Law or Islamic Law which might have regulated the return of gifts made in contemplation of a marriage are now superseded by the provisions of s 71 LMA.” It is clear that the husband was greatly moved by a sense of justice based on his understanding of customary law. Sadly, he found that customary law had been superseded by the LMA. See also Hussein Mbwana v Amiri Chongwe, Digest of Appeals from Local Courts (1963) Vo X per Spry J where he noted that “ I see no reason, therefore, why brideprice should not be paid under customary law at the time when an Islamic marriage takes place just as it frequently is on the celebration of an African Christian marriage.” See also Salum Athumani v Mwamini Hamisi1983 TLR 107 (HC) where Bahati Ag J (as he then was ) applying Islamic law, held that “under Muslim law dowry is not returnable after consummation of marriage and the position is even stronger where the husband has been found to be the guilty party.”
[2]In Basiliza Bobret Nyimbo v Henry Simon Nyimbo, High Court (DSM) Matrimonial Cause No 10 of 1983 (Lubuva J) (Unreported) the respondent went through a Christian form of marriage at a Lutheran church in 1959. In 1965 he purported to have that marriage dissolved extra-judicially by a Kadhi. Believing himself to be free of a marriage bond, the respondent went through a second marriage ceremony with the petitioner. It was held that the second ceremony was a nullity and did not result in a valid marriage.
