Introduction
The law relating to the financial consequences of divorce (and separation) is probably the most central in the study of contemporary family law in most jurisdictions. The next most important area, as we shall note in Part Three of this Manual,is the law relating to children and the allocation of responsibility for the care and upbringing of minor children upon separation or divorce. This Lecture is concerned with the law and practice relating to the financial consequences of divorce. It also looks at maintenance pending a decree of divorce or separation.
Maintenance after Divorce
The rules governing maintenance after divorce are contained in s 115 LMA and are to a large extent similar to the rules governing maintenance during the pending of a matrimonial proceeding. The major difference between them is that maintenance for a wife after divorce is to be awarded only if the court “for special reason so directs“. There is no similar proviso relating to maintenance for a divorced husband whether or not he is incapable of earning a living. Moreover, the LMA does not shed any light on why post-divorce maintenance for a former wife should be subjected to a test of special reasons. As the law stands, the former wife is not entitled to post-divorce maintenance unless, for special reasons, the court deems it appropriate to order maintenance. Indeed, it is not known, and this writer is unaware of court decisions shedding any light on what amounts to “special reasons.” (to be checked) There are however cases where post divorce maintenance has been awarded to former wives without any discussion regarding special reasons. (cite case)[2]
Special mention must be made of LMA s 115(1) (f) which empowers the court to order a husband who was a party to an Islamic form of marriage to pay maintenance to his former wife during the customary period of iddat which follows divorce. This is exclusively the obligation of the former husband and is binding irrespective of his financial ability. Another point to note is that in assessing maintenance, whether for a former wife or husband, the court is enjoined to have regard to two important factors, namely, a) the degree of responsibility for the breakdown of marriage; and b) the customs of the community to which the parties belong.
It could be argued that the award of maintenance should not be based on the spouse’s degree of responsibility for the breakdown of marriage. That maintenance should, instead, be based primarily on the ability the paying spouse and the financial need of the recipient spouse. That maintenance is not a reward for the innocent former spouse and its denial a punishment for those who have behaved badly in their marriage. Finally, that such a requirement encourages the courts to go back to the rather embarrassing details of the grounds for divorce in order to apportion blame. Such an enquiry would certainly generate bitterness between the parties. Bitterness is inconsistent with the policy of the law which seeks to maintain good relations between the couple. This is more so where the couple has children and have to co- operate in looking after their children.[3]
The award of maintenance based on the customs of the community to which the parties belong also calls for comment. The question here is whether reference should be made of the parties’ customary law or current practices in their community. Reference to the customs of the parties was made in Bi Asha Mohamed. [4]It appears that courts are required to follow customs only if such customs are consistent with the general policy of the LMA. For example, it is the general policy of the LMA to promote fairness and equality during marriage and at its termination.[5]There may be customs that do not adhere to such principles and these, it is argued, should not be followed.[6]
Before concluding this lecture let me consider the provisions of ss 117-124 which also relate to maintenance. Section 117 authorises the court to order the security of maintenance by creating a trust from which future maintenance could be paid. In appropriate cases, counsel representing a maintenance recipient could suggest to the court to take this course of action. Section 118 permits the payment of a lump sum or transfer of property, as settlement of all future maintenance claims against the maintenance payer. Such an agreement, however, requires the approval of the court.
Maintenance orders, unless expressed to last a shorter period, will cease, unless secured, upon the death of the former husband or wife whichever is earlier. Where the maintenance is secured, it will cease upon the death of the recipient. Maintenance for a former wife or former husband will also cease upon his or her remarriage.[7] Where the obligation to maintain a former spouse is based on an agreement, it will also cease upon the death of either party unless the agreement provided for a longer duration.[8]Section 121 empowers the court to rescind or vary maintenance orders where there is evidence of misrepresentation or material change in the circumstances of the parties. The court may also vary maintenance agreements if there is material change in the parties’ circumstances.[9]
Maintenance payable under a court’s order cannot be assigned or transferred to a third party. It is also not liable to be attached, sequestered or levied upon for or in respect of any debt or claim whatsoever save for a debt due to the Government.[10]Section 124 LMA governs the enforcement and recovery of maintenance arrears. It states that the arrears of unsecured maintenance under any agreement is recoverable against the defaulter as a debt. If such maintenance arrears accrued before receivership or death of the defaulter, it may still be provable in bankruptcy or claimed as a debt to the estate of the defaulter. Maintenance arrears under an agreement may not be recovered if it accrued more than three years before the institution of a suit.[11]
Finally, maintenance orders shall be enforced in the same way as a court decree for payment of money and the provisions of the Civil Procedure Code relating to the enforcement and execution of decrees for payment of money shall apply accordingly.[12]
The power of Court to divide Matrimonial Assets
The jurisdiction of the courts to divide matrimonial assets upon separation or divorce is contained in s 114 LMA. The section also empowers the court to order the sale of any such asset and the division between the parties of the proceeds of sale.[13] In performing this task the court shall have regard to four specific considerations. These are: a) the customs of the parties, b) the extent of the contribution of each spouse, c) any debts owed by either party if incurred for the parties’ joint benefit and d) the needs of the infant children of the parties.[14]Section 114 also contains a general guideline for division i.e. that subject to the above considerations the court “shall incline towards equality.” These considerations, including the requirement that the court must incline towards equality, are considered below. Besides the provisions of s 114 LMA we should also note s 108 LMA which requires the court hearing a petition for separation or divorce to enquire into the arrangements made or proposed by the parties regarding maintenance and division of matrimonial property and “to satisfy itself that such arrangements are reasonable.”
The meaning of matrimonial assets
The term matrimonial asset is not defined by the Law of Marriage Act 1971. The Court of Appeal in Bi Hawa Mohamed,[15]was of the opinion that matrimonial assets mean things which are acquired by the parties or one of them with the intention that such assets shall be for their joint benefit and that of their children.[16]Subsequently the same court held in Salum Bangu that matrimonial assets “mean assets acquired by husband and wife for their joint benefit”.[17] This definition appears to include a large number of assets that most couples in Tanzania seek to be divided between them. As noted by C S Binamungu, a review of cases on division of matrimonial assets shows that over ninety percent of disputes relate to houses while the remainder concern cars, domestic items, agricultural produce and livestock.[18]
But while the above definition appears to cover most forms of family assets, it falls short on certain family assets which C S Binamungu has described as “emerging forms” of family assets. These include company shares, dividends, pension funds, royalties, not to mention the earning power of a spouse. It is these forms of properties that are likely to exercise the minds of judges in the years to come. It is also doubtful whether inherited assets or gifts which have not been substantially improved upon by the claimant would qualify as family assets.[19]The same question would appear to apply to proceeds from lottery draws.
In our view, the guiding principle is that s 114 seeks to divide between parties any assets acquired by them during the marriage. The question whether a piece of asset falls to be divided under s 114 will have to be resolved as a preliminary point. Hopefully, over time, judicial opinion will tell us which asset is in or outside the ambit of s114 bearing in mind the principle of separate property ownership by the spouses. For example, it has been held that where a couple makes a gift to a third party such as a mother in law, such gift ceases to be part of the matrimonial asset. [20]
From Wifely Duty to Contribution
The law relating to the division of matrimonial assets has developed over time. There is a sense in which this development has followed a path or a movement towards human rights and gender equality. Thus in the first decade after the enactment of the Law of Marriage Act, courts gave a narrow interpretation to the word “contribution” contained in s 114. They took the view that housework and child care, performed primarily by women, did not amount to contribution to the acquisition of family assets. Judges following pre-1971 precedent held that housework and childcare were tasks which a married woman performs as part of her duty as a wife.[21] Such tasks were not to be counted as contribution to the acquisition of matrimonial assets.[22]
In Bi Hawa Mohamed the Court of Appeal held that housework and childcare constitute a contribution to the acquisition of matrimonial assets within the meaning of s 114. The Court noted that “since the welfare of the family is an essential component of the economic activities of a family man or woman it is proper to consider contribution by a spouse to the welfare of the family as contribution to the acquisition of matrimonial or family assets.” Hence, “the ‘joint efforts’ and ‘work towards the acquiring of the assets’ have to be construed as embracing the domestic “efforts” or “work” of husband and wife. Although this development in the law has been rightly applauded as a significant breakthrough, it is only the beginning of a long road towards fairness in the division of matrimonial property. It is essential, for example, for the court to determine in each case as a question of fact the extent of the claimant’s contribution as required by s 114 LMA. Moreover, the term fairness is itself very elusive given the equal division does not necessarily achieve fairness. This lecture will now consider the rights of spouses in the matrimonial home.[23]
Is the Spouse’s Behaviour a relevant Factor?
Apart from what Bi Hawa decided, as noted above, regarding the domestic services of a wife within the meaning of section 114 LMA, it also held that where a spouse’s misconduct has the effect of substantially reducing his or her contribution towards the welfare of the family and consequently, the acquisition of matrimonial assets “she or he would not be entitled to a share in the property.” During the early 1970s the wife in Bi Hawa, was given Tsh 18,000 to set up a family business but neither did she set up the business nor account for the money. It was held that that “the squandering of that money by the appellant when weighed against her contribution, can be regarded as a matrimonial misconduct which reduced to nothing her contribution towards the welfare of the family and the consequential acquisition of matrimonial assets.” Quoting from Lord Justice Cairns in Martin v Martin [1976] 3 All E R 629, “such conduct must be taken into account because a spouse cannot be allowed to fritter away assets by extravagant living or reckless speculation and then to claim as great a share of what is left as he would have been entitled to if he had behaved reasonably.” (to be continued)
Rights in the Matrimonial Home
Section 59 LMA states that where one of the parties to the marriage is the owner of a house constituting the matrimonial home, the spouse who does not own such a house has a right to reside in it as long as the marriage subsists. The owning spouse is not permitted to sell, mortgage, lease it to tenants or give it away as a gift to anyone without the permission of the other spouse. Failure to obtain the wife’s consent would render any such transaction unenforceable as against that spouse.[24] This point was raised in Maria Goreti Mutarubukwa[25]where the husband purported to mortgage the matrimonial home to a local bank without informing his wife. Upon default the Bank sought to sell the property to recover its loan. It was held that the mortgage was not enforceable because the Bank had failed to exercise reasonable diligence by not checking if the house was or was not a matrimonial home. As it turned out the wife not only had an interest in the house as a matrimonial home but she was also a joint owner of the said house.
In order to enhance the occupational rights of the non-owner spouse, section 59 LMA makes further provisions to the effect that such spouse “shall be deemed to have an interest therein capable of being protected by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds.” In the event the owner spouse contravenes the above provisions by alienating the matrimonial home against the wishes of the non-owner spouse, then under s 59(2)LMA the non-owner spouse is entitled to continue to reside in the said matrimonial home until the marriage is terminated or until the court upon separation or divorce makes orders to the contrary.[26]
There is a further provision under section 59 LMA which protects a third-party who has innocently acquired the estate or interest in the matrimonial home. In such a case the third-party has to prove to the court’s satisfaction that he or she had no notice of the interest of the other spouse and could not have become aware of such interests by the exercise of reasonable diligence. In these circumstances the best protection for the non-owner spouse is to have his or her interest in the matrimonial home registered as a caveat or caution at the land office. Such registration operates as constructive notice to the whole world of the non-owner spouse’s interests in the matrimonial home.
Additional provisions under LMA s 59 (3)(a) & (b) are intended to override the protection given to the non-owner spouse. They include cases where the court orders the sale of the matrimonial home in the execution of a decree against either spouse; and where the sale is ordered by a trustee in bankruptcy of either spouse. It is also stated that s 59 LMA shall not affect the Rent Restriction Act which provide for the right of a spouse to continue residing in any premises which were previously rented by a spouse or former spouse.
The special provisions relating to the matrimonial home, as stated in the marginal note of s 59 are indeed special. They represent one of the few instances, apart from s 114, where the law deliberately invades the realm of a married person’s property rights. It is indeed an exception to the general rule contained in section 58 LMA that marriage does not operate to change existing or future property rights of a married person.
Further inroads into the separate property regime came in 2006 following an amendment to the Land Act whereby section 161 of the Land Act 1999 (Cap 113R.E.2002) creates a new category of property rights called “occupancy in common”.[27]......to be continued CSB p 107. Occupancy in common under section 161 arises in two situations.[28] The first arises in cases where a spouse acquires interest in land, there is a presumption that both spouses have occupancy in common unless the spouse acquiring such property makes it absolutely clear that he or she is the sole owner. The second arises in situations where one spouse is the sole owner of an interest in land but the other spouse has made contribution whereby the value of the said property has been enhanced. In such cases the non-owning spouse may also acquire occupancy in common in relation to that property.[29] (to be refined later)
The Concept of Fairness and Its Implementation
The Court of Appeal stated in Bi Hawa Mohamed [30]that the object of the Law of Marriage Act was to “cure or rectify what may be described as the traditional exploitation and oppression of married women by their husbands.” [31]By its interpretation of s 114 to include housework and child care as a contribution to the acquisition of matrimonial assets, the Court of Appeal wanted to ensure fairness in the division of family assets. It cannot be denied that most married women are housewives whose major contribution consists of housework and child care. Since that landmark decision, a number of High Court judges have held that discrimination based on gender was contrary to the Tanzania Constitution.[32]As will be noted from the general guideline contained in s 114(2)(d) the law requires the court when applying s 114 LMA to incline towards equality of division between husband and wife.
But although equality of division between the couple has the superficial appeal of fairness, it must be recognised that the concept of fairness is more complex than a 50/50 division of matrimonial assets. Hence, although it can be correctly argued that s 114 provides a sound framework for division of assets, the concept of fairness requires courts to consider a range of circumstances, often unique to the couple, including their contribution, needs, age, health, earning capacity, responsibility to new or existing spouses and children, if any. Indeed, even the concept of contribution itself is complex as it depends on the variety of circumstances of the parties. As noted by Twaib J, the Court of Appeal in Bi Hawa’s case did not hold that domestic duties account for half of the couple’s efforts towards the acquisition of matrimonial assets. Rather, it held that “the wife’s contribution towards the acquisition of the assets must also be considered”[33] Finally, it must be stressed that the concept of fairness is not static. It changes with time in every society and hence, past decisions should not be followed without question as binding precedent. Rather they should be seen as offering a useful starting point and not to be taken as definitive guide to all future disputes relating to property division. But as noted above, in relation to the provisions of section 161 of the Land Act, the concept of common occupancy contains a wide scope for ensuring that justice is done not only to the divorcing or separating wife but also to the wife or wives staying in the marriage.
The Rights of the Remaining Co-Wives
It may seem strange that s 114 LMA does not make provisions for existing co-wives in the division of family assets. It is strange because, as we have noted above, the LMA specifically makes provisions for the celebration of polygamous marriages.[34]Such an oversight was tested in Maryam Mbaraka[35] where an application by co-wife for her share of the family assets was turned down by the Court of Appeal. According to the Court of Appeal, the applicant could not succeed because she was not a party to the original divorce action between her husband and her co-wife.[36]A similar question arose in Sadiki M Mandari v Saum S Mandari[37] where the appellant husband argued that the District court order for equal division of matrimonial assets between him and the former wife had ignored the property rights of the other wives. Shangwa J dismissed such an argument, noting that it was “not backed by law” and also that “the other wives who are married to him will enjoy whatever properties that will remain with him after the division of the matrimonial property in issue has been executed.” Indeed, even s 114 (2)(d) speaks of the children of the marriage, not, for example, the children of the family. This suggests that even the children born of the other co-wives are not included in the division of assets scheme under the LMA.
But as noted above, this shortcoming has, a certain extent been rectified by the 2006 amendment to the Land Act where under s 161 the contribution of the co-wives is specifically acknowledged and protected.[38]
Summary and Conclusion
Tanzania follows a separate property regime in the sense that marriage does not have any effect on existing or future ownership rights of the married couple. This is shown by the provision of s 58 LMA which 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 or to prevent either the husband or the wife from acquiring, holding and disposing of any property”. The general effect of this section is that each spouse has the power to acquire and dispose his or her separate property before and during marriage without interference from the other spouse. Furthermore, the court has no power to interfere with a married person’s property rights except at the time of separation or divorce in accordance with the express provisions of s 114 of the LMA.[39]
This Post has discussed various provisions which empower the court to interfere with the property rights of the couple either during marriage or upon divorce. When the couple is still married, the court’s power is limited to an order requiring the husband to maintain his wife and children.[40]Exceptionally, the court may also order a wife to maintain her husband. It is upon separation or divorce that the court has more extensive powers to divide family assets and, where appropriate, to order the sale of any asset and to divide its proceeds between the couple. In the division of family assets the court is required to adhere to the guidelines provided under s 114. We have noted the development of the law in this area leading to judicial recognition of housework and child care as contribution to the acquisition of family assets. The gaps in this area include the law’s silence regarding the property rights of co-wives at the time of separation and divorce. Moreover the children of the co-wives appear not to be included under s 114(2)(d).[41]
However, as argued above, a notable amendment to the Land Act in 2006 appears to have moved the law on this aspect closer to the community of property regime thus clearly weakening the provision of s 58 LMA.[42]
The question concerning which property falls to be divided under s 114 will continue to exercise judicial minds for a long time to come. The emergency of new forms of property, the rise of women in professions and business, and the growth of middle class and wealthy families will require more nuanced judicial approach to the question of fairness in the division of matrimonial assets.
Citation
[1]Counsel for the potential maintenance payer in an application for an interim order has to be alert to and ensure that the court has enough information about the payer’s means. This is to avoid a situation where the interim order sets the standard for the final maintenance order with adverse consequences for one’s client.
[2]In Monica Kasmiri v Tafuteni Shabani Moris DSM High Court Civ App No 79 of 2008, Per Wambura J where the judge commenting on the award of Tshs 200,000 as “compensation” for the wife noted that “the Law of Marriage Act does not provide for compensation or a handshake but for maintenance of the spouse. If the trial court and the District Court believed that the respondent had the duty to maintain the appellant, they it should have stated so and fixed a monthly amount for her maintenance until she is married or dies as provided for under s 115(1)(e), 116 and 117 of the Law of Marriage Act.”
[3]The idea of linking matrimonial misconduct to maintenance is part of the old law based on the matrimonial offence doctrine. While it may rightly be viewed as a relic of the old law it is also best to see it as an intentional compromise intended to appease the more conservative elements in the community. Indeed, it is comparable to s 114 (2)(a) LMA which requires the court to have regard to the customs of the parties when making orders for the division of matrimonial assets. Many African customs do not recognise the wife’s contribution in the same way that Bi Hawa Mohamed does. Fortunately courts are merely enjoined to have regard to the customs of the parties but are not bound to follow them.
[4] cite
[5]This question came up in Pulcheria Pundungu v Samwel Huma Pundugu 1985 TLR 7 (HC) where it was held that in cases where parties belong to different ethnic communities a non-traditional mode of life may be assumed in which case s 114 (2)(1) LMA does not apply. See also Ramadhan Bakari v Kichunda Mwenda and Anor [1973] LRT 33.
[6] See Mbaruku v Chimonyogoro [1971] HCD 406. See also my comment on Maagwi Kimito
[7] s 120 LMA. This is yet another example that certain provisions in the LMA assume all marriages are monogamous.
[8] Section 120(3)
[9] s 122 LMA
[10] section 123 LMA
[11] section 124(3)
[12] section 124(4)
[13] See Mohmed Abdallah v Halima Lisangwe 1988 TLR 197 (HC) per Mnzavas JK. It must be emphasized that separation and divorce are the only occasions when the court has power to divide matrimonial assets. As noted above, the court has no such power upon the grant of a nullity decree, whether the decree holds that a marriage is void or voidable.
[14]It should be noted that “the needs of the infant children, if any, of the marriage” do not mean that children are entitled to a share in the matrimonial assets in the same way as spouses as some couples tend to assume. As noted by Wambura J, in Monica Casmir v Tafuteni Shabani Moris (DSM High Court Civil App No 79 of 2008) “division of matrimonial property is in respect of the married couple alone and not the children no matter how young or old they are. Children can rightly inherit property after the death of their parents but are not subject to division of matrimonial properties.” See also Mohamed M Salum v Jack O Athumani DSM High Court PC Civ App No 130 of 2004 where the appellate Judge disagreed with the appellant husband’s submission that the lower court had erred in not awarding the house to the children of the marriage whose future depended upon that house. The lower court had ordered the sale of the house and division of the proceeds between the couple. Shangwa J noted that the future of the children did not depend on the house. Rather the children’s future “depends on how well they are brought up by their parents. In law it is the duty of the father to maintain his children by providing them with everything including clothing, food and education. If he discharges his duty of care towards his children, they will be able to build their own houses when they grow up.”
[15] Bi Hawa Mohamed v Ally Sefu [1983] TLR 32, 34 (CA)
[16] Relying on Halsbury’s Laws of England 4th Ed, at para 1064, (per Lord Hailsham) and on Lord Denning MR in Wachtel v Wachtel [1973] Fam 72, at 90.
[17] See Salum Bangu v Mariam Kibwana (Civ App No 29 of 1992 CA per Nyalali C J, Kisanga JS and Omar JA at p 7 of the typed judgement).
[18] Cyriacus S Binamungu, Division of Matrimonial Property in Tanzania: The Quest for Fairness, PhD Thesis, The Open University of Tanzania (2012: 70). It also appears that where the husband builds a house for his girlfriend during the marriage such a house is not to be considered part of the matrimonial property . See Eliester Philemon Lipangahela v Daud Makuhana (High Court Civ Appeal No 139 of 2002 per Oriyo J. This issue was raised but not discussed and resolved by the appellate judge. It is our view, nonetheless, that given the separate property regime provided for in the LMA, spouses have the freedom to acquire and dispose of their individual assets as they wish until divorce o separation proceedings have been instituted and an application for division made to the court. See also ( s138 of LMA prohibiting alienation or disposition intended to defeat maintenance claims and presumably those intended to defeat division of assets)
[19] S 114(3) states that “references to assets acquired during marriage include assets owned before marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.” The key phrase here is “substantial improvement” whose meaning will have to be settled by judicial interpretation. See Doitha Thuway v Amathi Bura High Court Civil Appeal No 9 of 1990 per E N Munuo J where the wife was awarded a share from the family herd of cattle originally inherited by the husband from his father. The judge reasoned that although it was true that the appellant husband had inherited the cattle, “ it is equally true that the cattle became part of the matrimonial assets upon which the spouses worked to generate family income and more cattle.” See also B Rwezaura, ‘Tanzania: Building a New Family Law out of a plural Legal System’ 523-540, 527 University of Louisville Journal of Family Law (Volume 33 No 2, 1995).
[20] See Omari Chikamba v Fatuma Mohamed Malunga 1989 TLR 39(HC) per Kazimoto
[21]Iddi Kunganya v Ali Mpte [1967] HCD 49
[22] For a review of earlier decisions that were overruled by Bi Hawa Mohamedi , see Zawadi Abdallah v Ibrahim Iddi 1981 TLR 311 per Mapigano J See also B A Rwezaura “Division of Matrimonial Assets under the Tanzania Marriage Law (in Verfasung und Recht in Ubersee)
[23] See C S Binamungu (thesis)
[24]In Idda Mwakalindile v NBC Holdings Corporation and Anor (Civ App No 59 of 2000 Court of Appeal at Mbeya) where the matrimonial home was sold in contravention of s 59 LMA the Court of Appeal of Tanzania held that the sale was lawful but the wife had a right to continue to reside in the matrimonial home.
[25]Maria Goreti Katura Mutarubukwa v National Bank of Commerce Ltd and 2 Others, DSM High Court Land Case No 28 of 2004 per Kileo J (cited in Binamungu CS thesis at p. )
[26]See Hadija Mnene v Ally Maberi Mbaga and the National Bank of Commerce (Mwanza High Court Civ App No 40 of 1995 (per Lugakingira J unrep.) cited in Binamungu CS Thesis at 115.
[27]Section 161 (1) of the Land Act provides that “[w]here a spouse obtains land under a right of occupancy for the co-occupation and use of both spouses or where there is more than one wife, all spouses, there shall be a presumption that, unless a provision in the certificate of occupancy or certificate of customary occupancy clearly states that one spouse is taking the right of occupancy in his or her name only or that the spouses are taking the land as occupiers in common, the spouse will hold the land as occupiers in common and, unless the presumption is rebutted in the manner stated in this subsection, the Registrar shall register the spouses as occupiers in common. Section 161(2) goes on to state that “[w]here land held (for) a right of occupancy is held in the name of one spouse only but the other spouse or spouses contribute by their labour to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be deemed by virtue of that labour to have acquired an interest in that land in the nature of an occupancy in common of that land with the spouse in whose name the certificate of occupancy or customary certificate of occupancy has been registered.
[28]It should be stressed that occupancy in common under s 161 of the Land Act applies more widely to interest in land and is not confined to rights in the matrimonial home.
[29]Section 161 of the Land Act specifically and expressly applies to wives where the husband is married to more than one wife thus avoiding the pitfall of s 114 of the LMA which does not cover the rights of the other wives.
[30] Bi Hawa Mohamed v Ally Sefu [1983] TLR 32
[31] Bi Hawa Mohamed v Ally Sefu [1983] TLR 32, at 44
[32] See BR &UW the Constitutionalization of Family Law
[33] See Gasper Faustine Shirima v Anna E Enock SikaDSM High Court Civil App No 103 of 2010 (unrep).
[34] See s 10(1)(b), s 10(2)(a), s 11(1)(a),(b), s 15(2), s 57,
[35] Maryam Mbaraka Salehe v Abood Saleh Abood (1988) TLR 29
[36] There are no provisions in the LMA for a co-wife to apply to be joined as party in the divorce proceedings between her husband and the co-wife. For a useful critique of such a state of the law, see Bart Rwezaura, ‘Tanzania: Building a New Family Law out of a plural legal system’ University of Louisville Journal of Family Law (1995) 523, 530 and Rachel Howland & Ashley Koenen, ‘Divorce and Polygamy in Tanzania’ (Social Justice Paper 15 http: ecommons. Iuce.edu/social_justice 15)
[37]DSM High Court Civil App No 10 of 2006 (unreported)
[39] See Mwanamkuu Ismail v Peris Maregeli, DSM High Court Civ App No 76 of 2005 (unrep) per Mlay J where the court held that the “division of matrimonial property proceeds from the grant of a decree of separation or divorce [and not otherwise].”
[40]Note also that under section 64 LMA the wife is presumed to have authority to pledge her husband’s credit in order to obtain her necessaries of life and those of the family.
[41]But see section xx of the Law of the Child Act (No xx of 2009)
[42]As the law appears to move towards the direction of community of property regime students will need to become familiar with legal principles governing community of property.
