Introduction
Before discussing the grounds that make a marriage voidable, it is best first to draw a distinction between a void ceremony and a voidable marriage. The first distinction is that a void ceremony does not give rise at any point to a marriage between the parties whereas a voidable marriage is considered to be valid until it is set aside by a decree of court. Thus s 40 LMA clearly states that a voidable marriage is for all purposes a valid marriage until it is annulled by a decree of the court. Where the court is moved to set aside a voidable marriage, care is taken under s 98 (1)LMA to protect the status of the children of the union and any acts that were lawfully done by them on the assumption that they were validly married are not nullified nor rendered unlawful.[1]
The second distinction is that no proceedings can be taken to challenge the validity of a voidable marriage after the death of one or both parties. But in the case of a void ceremony a declaration can still be issued after the death of one or both parties stating that a ceremony of marriage between the parties was void in law and did not result in a valid marriage.
The third and final distinction is that in relation to a voidable marriage only the parties to the marriage have the right to petition for nullity. And certain parties to the marriage are excluded from petitioning. For example, only the aggrieved party may petition. Hence, a party who has wilfully refused to consummate the marriage is not entitled to petition for nullity on the ground of non-consummation (s.97(1)LMA).
Moreover, where the petition is founded on the ground that at the time of marriage the respondent was subject to recurrent attacks of epilepsy or insanity or was made pregnant by a man other than the husband, or was suffering from venereal disease in communicable form, the court shall not grant the decree unless it is satisfied that the petition was filed within one year of the marriage; and that at the time of the marriage the petitioner was ignorant of the fact alleged; and that marital intercourse has not taken place with the consent of the petitioner since the discovery by the petitioner of that fact.
And where the ground for nullity is based on lack of parental consent or the consent of the court under s 13(2) and s 17(2) LMA, only the person who had the right to consent is permitted to challenge the marriage (s 97(2) LMA).
In the case of a void ceremony, however, there are no such restrictions. Any interested party may petition the court for a declaration that a ceremony purporting to be a marriage was in law a nullity (s 94(1)LMA).
Let us now examine the individual grounds on which a petition for nullity can be based.
Non-Consummation of Marriage
Section 39(a)(i) LMA states that a marriage shall be voidable if at the time of the marriage either party was incapable of consummating the marriage. It shall also be voidable if the marriage remains unconsummated due to the wilful refusal of one of the parties to consummate it (s 39(b) LMA).[2]
Consummation of marriage takes place when parties to the marriage perform a normal sexual act subsequent to (not before) the ceremony of marriage. There are interesting cases mainly from England and other foreign jurisdictions providing a careful analysis of what constitutes or falls short of consummation.[3]However, these cases arose from an earlier era when divorce was either non-available or highly restricted and so many couples resorted to nullity proceedings as a way out of a difficult marriage.
With the liberalization of divorce law in several jurisdictions, the importance of the law of nullity declined rapidly. As noted in 1989 by Lincoln J in A v J (Nullity Proceedings), “nullity proceedings are nowadays rare, though not wholly extinct.”[4]That, in appropriate cases, it is far better for parties to petition for divorce rather than embarrassing one another by making public disclosure of their intimate relations and difficulties. This advice should be taken more seriously by Tanzanian litigants where a court has no jurisdiction to order division of assets or to make financial provisions after making the nullity decree. This is unlike the situation in divorce and separation where courts have such jurisdiction.
Insanity, Epilepsy, Venereal Disease and Pregnancy by Third-Party
Section 39(a) (ii) LMA states that a marriage shall be voidable if at the time of the marriage either party was subject to recurrent attacks of insanity or epilepsy. Section 39(a)(iii) and (iv) also state that a marriage shall be voidable if at the time of the marriage either party was suffering venereal disease in a communicable form or (iv) the wife was pregnant by some person other than the husband.
According to Rebecca Probert before 1937 English family law did not provide remedy to an innocent party who was a victim of a fraudulent concealment by the other party of the fact that he or she was suffering from mental illness; was infected with venereal disease, or was pregnant by a man other than her husband. Since these conditions existed at the time of marriage, the innocent party could not petition for divorce on the ground, for example, of adultery, where wife was found to be pregnant and similarly where the husband or wife was already infected with venereal disease at the time of marriage.
In order to remove such anomaly the law was amended to create this and other grounds mentioned below. In this particular context, the law acknowledges the fact that although the party may have given consent to marriage and may well have understood the responsibilities marriage entails, yet his or her mental illness makes that party “incapable of carrying on a normal married life”[5]
The 1937 amendments were incorporated in the defunct Matrimonial Causes Ordinance (Cap 364) and later in the Law of Marriage Act 1971. There are three cumulative limitations under s 91(1) (a)(i) to the use of this section. The first is that before granting the decree, the court must be satisfied that the petition was filed within one year of the date of marriage; that at the time of marriage the petitioner was ignorant of the fact alleged; and that marital intercourse has not taken place between the parties with the consent of the petitioner since the discovery by the petitioner of that fact. The three limitations are intended to ensure that the petitioner is entirely ignorant of the facts alleged, has not condoned the respondent’s condition and has been vigilant in pursuing the remedy under the law.
Party below 18 and lacks Parental Consent
Section 39(c) states that a marriage shall be voidable if the wife had not attained the age of 18 years and consent to the marriage as required by section 17 had not been given and the court sees good and sufficient reason to grant a decree of nullity. There are two limitations to the invocation of the above section. The first is that a petition under the above section must be filed before the wife attains the age of eighteen years (s 96(1)(b)). The second limitation is that under s 97(2) a petition based on lack of parental consent can only be brought by the parent or guardian who was entitled to give such consent.[6]
The current law governing minimum age for marriage has been criticised by human rights advocates on the ground that it is discriminatory in that it prescribes a lower age of marriage, i.e 15 years for females and 18 years for males. It has been argued that there must be an equal minimum age of either 18 or 21 years for all.
Legal Effects of Nullity Decree and Remedies
Section 96 LMA empowers the court to grant a decree of annulment in respect of any marriage which is voidable under s 39 of the Law of Marriage Act. Regarding the effect of the decree, s 98(1) states that parties to a marriage which has been annulled by court decree shall be deemed never to have been married. The retrospective operation of the decree has a long history dating back to the Canon law era reflecting the notion of indissolubility of marriage. According to Canon law, a valid marriage endures for the life of both parties or one of them and cannot be dissolved by a court of law.[7] In the case of a void or voidable marriage, the court does not dissolve the marriage but merely declares an existing fact; that is, the parties have never in the eye of the law been husband and wife. Hence, until the enactment of the English Matrimonial Causes Act of 1857 divorce was possible only by an Act of Parliament. Therefore in line with the doctrine of Canon law, all annulment decrees were worded to take effect retrospectively.
Hence as noted above, even after 1857, divorce was still restrictive and so parties continued to resort to nullity proceedings in order to get out of a difficult marriage. With the liberalization of the divorce law during the 1970s in many parts of the common law world, it is now being suggested in certain jurisdictions, such as England, that the law of nullity be repealed and the grounds that make a marriage voidable be merged with the law of divorce. As noted by Rebecca Probert,
“the law of nullity has lost much of its practical importance because many of the legal consequences of marriage have now been attached even to a void marriage, while virtually all marriages can sooner or later be dissolved by divorce if either party wishes it.”
But in the case of Tanzania, this aspect of the law has not moved at the same pace as English law. Thus apart from the retrospective effect of the nullity decree, the court which grants the decree is not authorised to order division of matrimonial assets and other remedies available to divorced or separated parties.[8]
It must be stressed notwithstanding the retrospective effect of the nullity decree, the law has created four exceptions under s 98(1)(a) to (d). These are that the decree of annulment shall not render any child of the marriage illegitimate; shall not render lawful anything which was done unlawfully during the marriage or render unlawful anything which was done lawfully during the marriage. The nullity decree shall not affect the competency or compellability of the other spouse as a witness in respect of anything done or privilege in respect of communications made during the marriage. And, the decree of nullity shall not relieve the husband of any debt properly incurred on his behalf by his wife during the marriage.
Summary and Conclusion
A number of points need to be stressed. First, it is through the doctrine of nullity that the law regulates the formation of marriage and specifies, to the extent possible, who can and who cannot marry. Indirectly, the law tells us the nature of marriage and the obligations it creates.
Second, the law of nullity has a long history dating back to the canon law era. The most important consideration is that the ground that makes a marriage void or voidable, must exist at the time of marriage and not after. That is why the decree setting aside a voidable marriage operates retrospectively. But in order to remove resulting injustice it was subsequently necessary to limit, by statute, the retrospective effect of the decree.
Third, in its country of origin, (England and Wales), the law of nullity has moved forward to such an extent that the legal consequences of a decree of nullity are now similar to those of divorce in that courts have discretion to order division of family assets and custody of children. This has prompted some legal analysts to suggest that the law of nullity be merged with the law of divorce.
Fourth, there is a close connection between the law of nullity and the law relating to the presumption of marriage under section 160 of the Law of Marriage Act. The connection arises from the fact that there are certain “marriages” where parties lack capacity to marry or have capacity to marry but may have gone through an irregular or incomplete marriage ceremony. Some of the disputes brought to court under section 160 could well be decided under the law of nullity.[9]
Fifth we must keep in mind the possibility that parties may go through a ceremony believing it to be a marriage but in fact such ceremony may lead to a non-marriage. In other words, the ceremony may be so far removed from the provisions of the law that it amounts to a non-marriage. Such a non-marriage cannot be set aside by way of a nullity decree. Under our law, it may be declared a non-marriage by way of a declaratory decree under s 94 of the Law of Marriage Act.[10]
It is to be hoped that the legislature will be moved soon enough to amend this aspect of the law of nullity to bring it up to date and to remove injustice to parties.
Citations
[1] Unfortunately, the law is still too harsh on the parties to a voidable marriage in that it does not grant them any termination reliefs such as division of matrimonial assets or maintenance. It will be argued later that this aspect of Tanzania law has remained backward while in other jurisdictions a nullity decree has almost the same legal effects as a decree of divorce. But some judges have seemingly ignored this by granting such reliefs. In Basiliza Dobret Nyimbo v Henry Simon Nyimbo, Matrimonial Cause No 10 of 1983 (DSM), Lubuva J noted that although “the marriage had been declared null and void that would not mean the end as well of the responsibility over the children born of the marriage on the part of the parents.” The judge proceeded to grant custody and made maintenance orders in favour of the children of that relationship.
[2] In Mohamed Ndwata v Hamisi Omari 1988 TLR 137 a husband was granted a nullity decree by a Primary Court on the ground that his wife had unreasonably refused to have the marriage consummated.
[3] See Rebecca Probert, Cretney’s Family Law, 5th Ed. Sweet & Maxwell (2003) pp37-47.
[4] [1989] FLR 110 at 111.
[5] Rebecca Probert,, op cit (2003) at p43
[6] Section 97(2) appears to suggest the possibility of parental consent being required for a male party to the marriage. This is due to the use of the words “he or she” instead of only she as provided in section 13(1) LMA. But in the case of males who are below the minimum age of 18 years, only the court has discretion to gra ant consent under s 13(2)LMA.
[7] What God has put together no man can put asunder…ref
[8] See Amida Shabani v Alfani Mtenga [1981] TLR 232 per Kisanga J where he doubted whether the remedies available under s 114 LMA also apply to voidable marriages. See also B Rwezaura, “The Proposed abolition of de facto unions in Tanzania: A case of sailing against the social current” Journal of African Law, (1998) 42:187-214, at 206
[9] See B Rwezaura, The Proposed Abolition of De Facto Unions in Tanzania: A Case of sailing against the social current, Journal of African Law, 42: 187-214 at193ff.
[10] But also note that all void ceremonies, including those that have a semblance of marriage are grouped together under s 94 of the Law of Marriage Act.
