Introduction
VOID CEREMONY
Although as noted in the previous posts ( 1 / 2 ) the law has given much freedom to customary communities and religious groups to contract marriage in accordance with their own personal laws and procedures, the same law has laid down a number of significant requirements which must be observed by everyone otherwise the purported marriage will be defective or totally non-existent. Some of these requirements relate to the inherent capacity of the parties to marry. Others are concerned with the failure of the parties to observe the procedure relating to the formation of marriage. Others relate to what the parties fail to do after a valid marriage ceremony has taken place such as refusal to have the marriage consummated.
Another point to bear in mind at this stage is to draw a clear distinction between void ceremonies and voidable marriages. Although some of the differences between the two originate from English law and canon law and reference is often made in English family law textbooks about void and voidable marriages, the Law of Marriage makes matters much simpler by making reference to void ceremonies under s 38 LMA and voidable marriages under s 39 LMA.
It is also essential to clear the potential for confusion caused by the existence of sections 13-17 LMA and sections 38-41. Students will note that sections 13-17 impose restrictions to marriage. They are primarily concerned with spelling out those persons who lack legal capacity to marry. Thus a person who lacks legal capacity to marry cannot successfully undergo a ceremony of marriage. If he does go through a ceremony of marriage, that ceremony will not lead to a valid marriage. We shall put these two sets of section together and discuss them under void marriage ceremonies. The next set include sections 39-41 which deal with voidable marriages. The distinctions between void marriage ceremonies and voidable marriages will be discussed at the end of this lecture.
BOX
At the end of this post the Student will:
- Acquire a good understanding of the meaning of capacity to marry and the legal consequences that ensue when parties purport to go through a marriage ceremony notwithstanding their lack of capacity. A party to a marriage lacks capacity to marry when:
a) He or she has not attained the minimum age of marriage;
b) Both parties are within prohibited degrees of relationship;
c) He or she is party to an existing valid marriage;
d) He or she has not consented to the marriage;
e) Being female contracts the marriage during the period of Iddat;
f) The marriage is not intended to last for the parties’ joint life;
g) Parties are not respectively male and female;
i) Minimum Age
Section 38 LMA states that a ceremony purporting to be a marriage shall be a nullity, if either party to the ceremony is below the minimum age for marriage. Section 13 LMA sets the minimum age for marriage at 18 years for males and 15 years for females. Notwithstanding the above provisions, the court has power, on application by one or both parties, to permit either or both parties to marry at a lower age provided the applicant has reached the age of fourteen and the court is satisfied that there are special circumstances which make the proposed marriage desirable. The court to which such an application is to be made includes the Primary Court, District Court, Resident Magistrate’s Court and High Court.[1]
Two points need to be noted at the outset. The first is the differential age of marriage between the male and female. Women’s and children’ rights activists have persistently pointed out that the law should raise the minimum age of marriage for girls to at least 18 years. Many would like to see the minimum age of 21 years imposed for both male and female.[2]
The second point is that even if the age of marriage were raised by law to 21 years, there are a number of economic and cultural factors that stand in the way of the law. They include cultural and religious factors that stress marriage as a woman’s vocation and destiny. They do not see any good reason for waiting until the girl attains majority age. Such waiting exposes the girl to pre-marital pregnancy which is viewed by many as another hazard because it lowers the girl’s chances of being married. Economic factors also account for a lower age of marriage for girls. In this context parents may be keen to receive bride wealth on the marriage of a daughter and to use the money to balance the domestic budget. In some cases parents may wish to avoid the cost of educating their daughters by preferring to have them married as quickly as possible. Some school girls are instructed by parents to do badly in their std seven examinations so they may not be selected to join form one.
ii) Prohibited Degrees of Relationship
A ceremony purporting to be a marriage shall be a nullity if the parties thereto are within the prohibited relationships of consanguinity (s 38(1)(b) LMA). Persons who cannot marry by reason of being in prohibited degrees of relationship include: grandparent, parent, child, grandchild, sister, brother, great-aunt, great-uncle, aunt, uncle, niece, nephew (s14(1) LMA). For purposes of the law, grandparent, grandchild, great- grandchild, great-uncle and great-aunt of any degree whatsoever are also prohibited marrying ach other (s 14(6)).
According to s 14(5) LMA, relationship of half-blood shall be as much an impediment to marriage as if it was of full blood and it shall be immaterial whether the person was legitimate or illegitimate.
It is also prohibited for a person to marry the grandparent, parent, child or grandchild of his or her spouse or former spouse. It is also prohibited for a person to marry the former spouse of his or her grandparent, parent, child or grandchild. Parties who are related through adoption are also in prohibited degrees of relationship. Hence, no person shall marry a person whom he or she has adopted or by whom he or she was adopted (s 14(4) LMA).
It is worth noting that the relationship of adoption is confined to the immediate parties, that is, to the adoptive parents and the adopted child. However, if it is accepted that an adopted child has the same legal status as if he or she was a natural child of the adoptive parent or parents, then all the prohibited relationships that affect the natural children of the adoptive parents should also apply to him or her. As the law stands, it is permissible for an adopted child to marry the child of her adoptive parent or parents.
iii) Incapacity Due to Existing Marriage
As a general rule no woman is permitted to marry more than one husband at the same time.[3]A man on the other hand is permitted to marry more than one woman during the existence of the first marriage if his first marriage was polygamous. Section 10 LMA states that marriage shall be of two kinds, namely, those that are monogamous and those that are polygamous or intended to be polygamous, that is, potentially polygamous. Section 15 LMA states that no man, while married by a monogamous marriage, shall contract another marriage with another woman. In Basiliza Nyimbo[4]the respondent went through a monogamous marriage at a Lutheran Church in Dar es Salaam on 13th December 1959. On 8h May 1965 the respondent purported to dissolve the said marriage before a Kadhi in Dar es Salaam. And two weeks later the respondent went through another monogamous marriage with the petitioner at St Joseph Cathedral on 22nd May 1965. On a petition for nullity by the petitioner it was held that:
“the marriage celebrated between the petitioner and the respondent on 22nd May 1965 illegally is declared null and void”[5]
It is also prohibited for a man who is party to a subsisting polygamous marriage, or a potentially polygamous marriage, to contract another marriage in a monogamous form with another woman. It is, however, permitted for parties who are already married to undergo another ceremony or ceremonies of marriage, as long as these subsequent ceremonies will not alter the status or legal consequences of the first marriage.[6] The foregoing provision is based on the well known practices of many Tanzanians who, in their desire to meet the requirements of their cultures, religions and even state law, tend to undergo more than one marriage ceremony. It is therefore common for couples to undergo a customary marriage ceremony to be followed, a few days later, by a church ceremony or one at the registrar of marriages. Except for Christian marriages where strict provisions have been laid down under LMA section 11 (5), the general rule for all others is that if the first ceremony of marriage has been effective in bringing about a valid marriage, then any subsequent ceremonies will not change the nature of that marriage nor its legal effects.
iv) One Party not Consenting
Consent to marriage has always been held to be a fundamental precondition to the validity of a marriage ceremony. Indeed, marriage is defined under section 9(1) as a voluntary union of a man and a woman. Hence, section 38(1)(e) LMA states that a ceremony purporting to be a marriage shall be a nullity if the consent of either party is not freely and voluntarily to that marriage. Section 16 (2) stresses the same point by further stating that consent shall not be held to have been freely or voluntarily given if the party who purported to give it was influenced by coercion or fraud; was mistaken as to the nature of the ceremony or was suffering from any mental disorder or mental defect, whether permanent or temporary, or was intoxicated to such an extent as not to fully appreciate the nature of the ceremony.
The primary factors that vitiate consent fall under three categories, namely, a) duress or coercion (generating fear in the victim); b) mistake (presumably arising from fraud) and c) mental disorder or mental defect. These three are discussed briefly below by considering case law and how judges have interpreted these provisions. It is important at this juncture to reflect on sections 38(1)(e), 16(2) and 39(a) (ii),(iii) and (iv). The question to consider is to determine the form of mental illness, insanity and fraud that would vitiate consent and that which merely renders the marriage voidable.
v) Marriage during Iddat
According to Islamic law a divorced woman or a widow has to observe a period of confinement called Iddat, normally four months and ten days before contracting another marriage. This requirement is contained under section 38(1)(j) LMA and constitutes an impediment to marriage.
According Islamic law there are two types of Iddat, namely the Iddat of death and the Iddat of divorce. Although this is not expressly mentioned, it appears that Iddat is intended to secure the status of the child who might have been conceived shortly before the divorce or before the death of the husband. For example, under Islamic law, if a man dies leaving his widow pregnant, her Iddat lasts until she delivers the child. Thus her Iddat will cease any time even if she deliver the child one day or one hour after the death of the husband. Similarly, the Iddat for divorce is compulsory only if the divorced woman did engage in sexual intercourse with her husband before divorce or if they met in privacy and thereafter her husband divorced her. It seems therefore the primary object of Iddat is to protect the husband’s right to any offspring that might otherwise be lost in the aftermath of divorce or death. This object however is not, and need not be, spelt out in the LMA.
vi) Marriage : Not for Life
A marriage which is expressed to be of a temporary nature or for a limited period is not recognised by the LMA. (s38(1)(i)). Section 12 LMA also states, among others, that a marriage shall subsist until determined by death of either party, by a decree of divorce or annulment. As we have noted above, a marriage is intended to last for the joint lives of the parties. The fact that the same law makes provisions for the dissolution of marriage (see Part VI LMA) does not mean that parties are frees to fix a number of years during which their marriage may endue. This is one of the matters that distinguish a marriage from an ordinary contract. What the law requires is that parties should honestly and truthfully enter into the marriage intending that it will last for the joint lives. What will happen during their marriage is irrelevant.
It is also a question of social policy in that society has to create a stable environment for the birth and upbringing of the next generation. It would be absurd for society to allow parties to contract a marriage for a short period while leaving open the whole question of who should have responsibility for the care and upbringing of children.
vii) Not between Man and Woman
Although, so far as I am aware, the question of parties to the marriage being of the same sex has not been litigated in Tanzania courts, it is important for students to be aware that a valid marriage may only be formed between a man and a woman; not between two women or two men. Section 9(1) LMA defines a marriage as “a voluntary union of a man and a woman..” At this juncture we need to consider two aspects of this question; that is, the law’s stance on parties one of whom has undergone successful gender re-assignment and cases where parties are simply of the same gender.
In Corbett v Corbett (otherwise Ashley) (No 1)[7]the petitioner was male and the respondent was formerly a male who had undergone surgical gender reassignment (sex-change). The parties went through a ceremony of marriage and the issue in this case was whether their marriage was valid. Justice Ormrod held that a person’s biological sex is fixed at birth (at the latest) and cannot be altered thereafter by medical intervention. Although Tanzania courts have not had an opportunity to decide a similar case, it is most likely that they would follow the decision in Corbett.[8] It should be noted nonetheless since 1970 when Corbettwas decided, the global community has gradually adopted a wider view of the definition of marriage and Corbett itself has was overturned by the English Parliament in 2004.[9]A number of western jurisdictions have also recognised gender-reassignment as having legal consequences.[10] The potential impact of such developments though seemingly happening far away from Tanzania cannot be ignored.
viii) Other Irregularities
It should be noted that although on the face of it the contravention of section 38(1)(d),(f), (g), and (h), will also render the ceremony defective, these provisions need to be read together with other sections of the LMA which apparently weaken or in some cases make them superfluous. For example, sub-section 2 of section 38 effectively removes the need for a party’s presence at the marriage ceremony.[11]Similarly, section 41 LMA also removes a number of restrictions including failure to give notice of intention to marry, marrying despite the non-removal of notice of objection and “any procedural irregularity” which seemingly covers any shortcoming as long as the fundamental prerequisites laid out by the LMA are complied with. As noted by Lugakingira J “failure to give notice of the intended marriage, absence of the ‘shangwe za harusi’ or any other procedural irregularity in the ceremony are not matters which would affect the validity of the marriage if in all other respects it complies with the express requirements of the Act.”[12]
Citation
[1] See section 76 and s 2(1) LMA
[2]See the Law Reform Commission of Tanzania, Report of the Commission on Law of Marriage Act 1971 (April 1994) which noted in its terms of reference that “the age of 15 which is minimum for marriage has been criticized as being discriminatory of female members. It has also been argued that to a girl of the age of 15, marriage is unhealthy and dangerous to her life as well as to her issues”. Comparable criticism has been made of this provision from various stakeholders, including suggestions made in 2009 during the debates on the Law of the Child Bill.
[3] Section 15(3) LMA stares that no woman who is married under whatever form of marriage shall, while that marriage subsists contract another marriage. In Ramadhani Said v Mohamed Kilu 1983 TLR 309 (Lugakingira J), the court noted the provisions of s 15(3) LMA adding that our law does not permit polyandry but punishes it. It referred to s 152 LMA which states in effect that it is an offence for a married woman to be a party to a marriage ceremony where she purports to marry another man.
[4] See Basiliza Bobret Nyimbo v Henry Simon Nyimbo, High Court (DSM) Matrimonial Cause No 10 of 1983 (Lubuva J) (Unreported)
[5]It should be noted however this was a void ceremony rather than a void marriage that was declared null and void as provided under s 38 LMA. The court’s power to declare such a ceremony a nullity is found under s 94(1) and (2)(a)LMA although no reference was made to foregoing provision.
[6] The only exception to the above rule is the case where parties convert their marriages under section 11 of the LMA.
[7] [1970]2 All E R 33
[8] See P M Bromley and N V Lowe, Bromley’s Family Law 8th Ed (1992) Butterworths p 34
[9]See the English Gender Recognition Act of 2004 which permits trans-gender people to change their legal gender and acquire new birth certificates. The acquired birth certificate accords the recipient full recognition of his or her newly acquired gender for all purposes including marriage. This law has in effect overruled Corbettexcept for those (in Englad and Wales) who do not acquire new birth certificates.
[10]HK and Robin Emerton
[11] Although, as noted above, this provision was intended to save Islamic marriages, the way it is drafted suggests it is capable of application to all forms of marriage. In practice, however, the person officiating at the marriage, such as a minister of religion, is more likely to insist that both parties must be present at the ceremony.
[12] See Ramadhani Said v Mohamed Kilu 1983 TLR 309
