FORMS OF MARRIAGE
Before the Law of Marriage Act 1971 [Cap. 29 R. E. 2002] came into force there were various forms of marriage recognized under the personal and religious laws applicable to the communities residing in Tanzania. After 1971 the Law of Marriage Act enacted uniform provisions applicable to all forms of marriage while also permitting the application of personal and religious laws in matters such as the mode of celebrating a marriage. Hence, section 25 LMA states that a marriage may be contracted in Tanzania, either in civil form, in accordance with the religious rites of the parties or in accordance with the customary rites of the parties. Apart from giving freedom to the parties to contract a marriage in accordance with their personal laws, the law also grants them the freedom to contract a civil marriage irrespective of their customs or religious persuasion.
In this lecture, instead of discussing the procedure for celebrating various forms of marriage under Tanzania law, we will, instead, examine the forms of marriage recognised under the Law of Marriage Act. We begin with the Civil marriage form, followed by Christian form, the Islamic form, the customary form and finally, what we may call, for want of a better term, the ‘Section 160’ form of marriage.
BOX
At the end of this post the reader will:
i) Acquire an understanding of the five forms of marriage that are provided for under the Law of Marriage Act. These are:
a. The Civil form of Marriage with its unique status in that it is open to anyone irrespective of his or her cultural or religious affiliation;
b. The Christian form of Marriage, reserved for those who profess the Christian faith;
c. The Islamic form of Marriage; reserved for the members of the Islamic faith;
d. Customary form of Marriage; for parties who (or one of them) belongs to a particular customary community; and
e. Section 160 form of Marriage; though not accepted by certain judges as a form of marriage though its existence remains difficult to deny.
ii) Will understand the link between the five forms of marriage and the diversity of the people’s culture; their religious affiliations; and the plurality of the country’s legal system
END OF BOX
Civil Form of Marriage
The civil form of marriage is provided for under Law of Marriage Act (LMA)[Cap 29 R.E 2002] under Part II (sections 18-35) which makes provisions for the celebration of a civil form of marriage. According to s 18(1) a man and a woman who desire to contract a marriage are required to give a notice of their intention to marry to the Registrar of Marriages at least twenty-one days before the wedding day. The Registrar General, Deputy and Assistant Registrars-General are appointed under sections 3-8 of the LMA. The notice of intention to marry should contain a number of particulars as stipulated under s 18(2) (a) to (i). These particulars seek primarily to establish, among other things, the date of the intended marriage, the identity of the parties, their respective ages, their capacity to marry and the intended form of marriage the parties wish to contract.
The primary object of the notice of intention to marry is to notify the general public about the intended marriage. As a general principle, a marriage is and must always be, a public event rather than a clandestine or secret affair.[1]Hence, the Registrar or registration officer to whom the notice is made has the obligation to make this intention known locally by such means as may be prescribed or as are customarily used to make known matters of public importance. Such notice enables any member of the public to file an objection to the intended marriage on the ground that he or she is aware of facts that constitute a legal impediment to marriage. See also s 24 LMA where notice may be dispensed with by the Registrar General. There is a laid down procedure under s 21 and s 22 LMA for determining such an objection by way of court proceedings or adjudication by the Marriage Conciliatory Board.
The status of a Civil Marriage
At the outset it is important to stress the unique status of a civil marriage in relation to other forms of marriage. First it is close to the state legal system in that it is not aligned to a particular religion or cultural group. It stands out as a form of marriage available to anyone who qualifies to marry irrespective of his religious or cultural background. Hence, it is provided under section 25 (1) LMA that a person has the option either to contract a marriage in accordance with his/her religious rites, customary rites or may choose to contract a civil marriage.
It should be stressed further that the Tanzania civil marriage form originated from the British colonial era. Historically, its origin is the first English marriage law known as Lord Hardwicke’s Marriage Act of 1753. Before 1971 the civil form of marriage was contracted under the Marriage Ordinance (RL Cap 109). The civil marriage shares a similar jurisprudence with most civil marriages in the Common Law world such as Australia, Canada, the United States of America and, of course, our East African neighbours, Kenya and Uganda. Indeed, even the procedures for contracting a civil marriage found in the LMA are taken with minor modifications from English law. Not only that, the definition of marriage found in s 9(2) LMA is derived from the famous case of Hyde v Hyde (1866) LR 1 P.&D. 130 where Lord Penzance defined an English marriage as “the voluntary union for life of one man and one woman to the exclusion of all others”
Civil marriages have traditionally been monogamous, thus answering to Lord Penzance’s definition. It is still the case in most common law systems, except Tanzania which departed from this tradition in 1971. Section 29(c ) LMA states that after contracting a civil marriage, parties my request the district registrar “to make an entry in the register whether the marriage shall be monogamous or polygamous..” The registrar has to satisfy oneself that both parties consent to such an endorsement. This provision means that where the entry is made that the said civil marriage is polygamous, then such a civil marriage will become potentially polygamous. And the male party to such a marriage retains the capacity to contract another civil (or other form of) marriage with another woman or women while his previous civil marriage remains subsisting.
Note further that a marriage that was by inception monogamous may also be converted under s 11 LMA on the joint declaration of the parties made before a judge, a resident magistrate or district magistrate.
The procedure for contracting a civil marriage which is contained under sections 18-29 LMA is straightforward and students are strongly recommended to read and become acquainted with these provisions.
2.3 Christian Form of Marriage
One way of understanding the Christian form of marriage is once again to return to the history of English family law. Before the enactment of the first Marriage Act of 1753, there was no specific procedure, laid down by law, for contracting a marriage. The most widely known form of marriage is the common law marriage which historically could be formed by the parties saying to one another (in turn) the following words: “I (mentioning his/her name) take you (mentioning her/his name) to be my wife/husband. Thereafter the parties would perform the first sexual act together known as consummation of the marriage and begin living together as husband and wife. These would be validly married. It did not matter whether the exchange of these magic words took place in public or private.
In the case of Christians,. whether of the Church of England (after 1534-1555 and 1558 on) or of Rome, there was a requirement that the exchange of vows take place at the outside the Church before an ordained clergy. Additional procedures were added by the Church especially the publication of banns on three consecutive Sundays in the local church of the bride and the groom.
The enactment of the English first Marriage Act 1573 brought all marriages under state control. But the Act also permitted the Christian churches to continue to celebrate their marriage in accordance with their existing procedures as long as they complied with the fundamental provisions of the Act.
Though taking place later in time, a comparable arrangement was followed in Tanzania. The Law Marriage Act, 1971 granted freedom to various faiths and local communities to celebrate marriages in accordance with their faiths as long as they complied with the fundamental principles of marriage laid down by the LMA. Hence, section 25 (1)(b) LMA states that a marriage may be contracted in Tanzania, where both parties belong to a specified religion, according to the rites of that religion. Section 30(1) states that a marriage may be celebrated according to the rites of a specified religion in any place habitually used as a place of public worship or a place of gathering by the followers of that religion, by a minister of that religion who has been licensed in that behalf by the Registrar General.
Section 30(2) LMA further states that the Registrar- General may, on the application of a proper authority of any specified religion license any minister of that religion to celebrate marriage. Finally, s 25(3) LMA provides that for purposes of this Act, a marriage in Christian form means a marriage celebrated in a church in the manner recognised by the Christian faith or by any denomination or sect of that faith. In sum, the LMA seeks to facilitate marriages in accordance with the existing faiths and customs as long as these marriages comply with the fundamental conditions of the LMA. As will be noted below, the same principle applies to customary and Islamic marriages
Islamic Form of Marriage
Section 25(3) LMA states that for the purposes of this Act, a marriage in Islamic form means a marriage contracted in the manner recognised by Islam or by any school or sect of that faith. Section 30 (3) LMA states that a marriage may be celebrated in Islamic form by any kadhi or by a registration officer who is a Muslim. Furthermore, section 30(4) states that a Muslim priest or preacher may, on application made by him, be licensed as a kadhieither generally or for any specified community. Once licensed, the priest or kadhi, as the case may be, acquires the authority to celebrate a marriage in accordance with the Law of Marriage Act. Finally, section 32(a) LMA states that it shall be the duty of every kadhi or registration officer to whom notice has been given that a marriage is intended to be contracted in Islamic form; so far as is reasonably practicable, to attend the celebration of that marriage.
It is clear from the foregoing provisions that the LMA leaves enough room to the intended parties to an Islamic marriage to contract their marriage in the form recognised by their religion as long as they comply with the essential conditions laid down by the LMA. In this connection, the rules governing the formation of an Islamic marriage are not specifically stipulated in the LMA. They are to be found in the existing body of Islamic law and practice. This is clear from the provisions of s 25(3) which states that a marriage in Islamic form means a marriage contracted in the manner recognised by Islam or by any school or sect of that faith.[2]
Section 25(1)(d) LMA states that a marriage may, subject to the provisions of the LMA, be contracted in Tanzania where parties belong to a community or to communities which follow customary law, in accordance with the rites of the customary law. The LMA does not lay down a specific procedure for contracting a customary marriage. There are nonetheless indications in the LMA regarding, notice of intention to marry which is anticipated by section 32(b) LMA. The latter section states that it shall be the duty of every registration officer to whom notice has been given that a marriage is intended to be contracted according to the rites recognized by customary law, so far as is reasonably practicable, to attend that marriage. It seems that notice of intention to marry under customary law is not mandatory. This is in contrast to the notice required for civil forms of marriage.[3] The reason, as noted before, is to allow as much freedom to the various faiths and local communities to regulate their procedure for contracting a marriage as long as they comply with the essential aspects such as those relating to capacity to marry. In sum, subject to the overriding provisions of the LMA, a customary marriage is a marriage recognised by the customary law of the parties.[4]It is important to note however that parties to a customary marriage are required to register their marriage and obtain a marriage certificate as provided by s 43(5)LMA. Although failure to register a marriage does not affect it is advantageous to have a marriage certificate should there be a need to prove the existence of the said marriage.[5]
Section 160 Marriage
Section 160 (1) LMA states that where it is proved that a man and a woman have lived together as man and wife for a period of at least two years and have, during that period, acquired a reputation of being husband and wife there will arise a rebuttable presumption that the two are duly married. The history of section 160 is long and still unfolding; its intricacies are also diverse. These aspects will not be discussed in detail in this lecture.[6]However, what cannot be avoided in this Lecture is to highlight to the student that there have been sharp differences between the eminent judges in the interpretation and application of section 160 LMA. Some judges have in effect held that there exists a fifth form of marriage under Section 160.[7]
As noted by Mwalusanya J,
“The only three important elements to constitute a presumption of marriage are:
a) that the parties have cohabited for [at least] two years;
b) the parties have acquired a reputation of being husband and wife;
c) that there was no formal marriage ceremony between the said couple.[8]
d) That is enough to constitute a marriage.” [9]
In Festael Sadikiel Macha v Salum Shaban[10] Manento JK upheld the decision of the lower court which dissolved a ‘section 160’ form of marriage and ordered division of assets under s 114 LMA. As noted by the appellate judge, “it was proper for the trial primary court magistrate to rule that the appellant and husband were husband and wife, and proceed to deal with the issue of dissolution of the marriage, and having found that the marriage had broken down irreparably, granted the divorce.”
Other judges, however, have taken the opposite position, arguing that once it is proved that the parties did not in fact go through a marriage ceremony that is sufficient to rebut the presumption of marriage under s 160 LMA and that means there is no marriage.[11] The leading case on this view and which has been followed by a number of eminent judges is Francis s/o Leo v Paschal Simon Maganga[12]where Mfalila J (as he was then) held that the presumption that a man and a woman were duly married may be rebutted if it can be proved (among other things) that they did not go through a marriage ceremony. According to Mfalila J, the words ‘duly married’ refer to the forms and procedures for marriage provided for under the Law of Marriage Act. “Therefore all that is required to rebut such presumption is to establish that the two never when through a ceremony of marriage recognised under the Act”
The foregoing position was endorsed by the Court of Appeal in Hemedi S Tamim v Renata Mashayo.[13] It would appear therefore, consistent with the doctrine of precedent, that the judges who hold that absence of a ceremony of marriage is sufficient to rebut the presumption of marriage under s 160(1)LMA have, at least for now, the support of the highest court.[14]
Section 160 marriage arise primarily in cases where parties who have capacity to marry under LMA do not undergo any ceremony of marriage but instead live together for at lease two years as if they are married and, in due course, do acquire a reputation of being married.[15] There are others who go through an incomplete marriage ceremony (usually under customary law) and several years later try to have their marriage terminated as if it was a regular form of marriage. But where it is shown that the parties did not regard one another as husband and if, then, obviously the presumption of marriage under s 160 will not arise.[16]
Conversion of Marriage
Section 11 of the Law of Marriage Act states that a marriage contracted in Tanganyika may be converted either from monogamous to potentially polygamous; or if the husband has one wife only, from potentially polygamous to monogamous. Such conversion is effected by a declaration made jointly by the husband and wife, that both of them have consented to the conversion. A declaration to convert a marriage under s 11 LMA shall be made before a judge of the High Court, a Resident Magistrate or a District Magistrate, who shall put in writing such a declaration. The declaration must also be signed by the husband and the wife and by the judicial officer before whom it has been made. Thereafter a copy of such declaration must be immediately transmitted to the Registrar-General of Marriages and Divorces appointed under s 3 LMA.
Section 11(4) LMA provides that no marriage shall be converted otherwise except as provided above. Moreover, no marriage between two Christians which was celebrated in Christian form shall be converted from monogamous to potentially polygamous so long as both parties continue to profess the Christian faith. The foregoing prohibition to conversion applies notwithstanding that the marriage was preceded or succeeded by a ceremony of marriage between the same parties in civil or any other form.
It is helpful to note the background to section 11 LMA. As noted above, several provisions of the LMA recognise and seek to accommodate the religious and cultural plurality of the Tanzanian community by allowing couples a certain degree of flexibility in the organization of their family relations and the form of marriage they wish to contract. The provision for conversion is an extension of this policy of the LMA. Moreover, the prohibition to convert Christian marriages was also brought in to accommodate the concerns of certain Christian leaders who objected to the conversion of Christian monogamous marriage.[17]
Summary and Conclusion
The existence of five forms of marriage is clear evidence that Tanzania is a country of many cultures and religions. Furthermore, the fact that these forms of marriage are recognized and regulated under one umbrella legislation, the LMA, reflects the sensitivity of the legal system to the country’s cultural pluralism. In the lectures that follow the strands of sensitivity to cultural and religious pluralism will continue to come up in our discussion. It is important to remember that family law is about people and how they regulate their relationship from day to day. The next lecture considers problems that can arise from a failure to comply with the legal procedures for contracting a marriage and how this affects the validity of a marriage.
Bibliography
Bart Rwezaura ‘Presumption of Marriage in Tanzania’ (1985) 18 Verfasung und Recht in Ubersee 169-179.
Bart Rwezaura, ‘The Court of Appeal of Tanzania and the Development of the law of domestic relations”. Vol 16 No 2 (1989) Eastern Africa Law Review 146-186 esp 159-164
Bart 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
United Republic of Tanzania, The Government White Paper No 1 of 1969: Proposals on Uniform Law of Marriage, Dar es Salaam.
C O Kaisi, Women under Presumption of Marriage; A Critical Analysis of the Law, Practice and Social Implications of s 160 of the Law of Marriage Act, 1971. LLM Thesis, University of Dar es Salaam (1994)
Citation
[1] See section 28 LMA which provides for members of the public to attend the celebration of a civil marriage. In the case of religious marriages, any member of that religious community or customary community may attend the ceremony without being specifically invited.
[2] See s 38(2) which further accommodates Islamic marriages by permitting the bride to be absent at the wedding as long as her male guardian, (the walii) is present to consent to the marriage on her behalf.
[3] But then see section 41(c) which states that a marriage complies with all other requirements of the LMA shall be valid for all purposes notwithstanding the failure to give notice of intention to marry
[5]See Ahmed Ismail v Juma Rajabu 1985 TLR 204
[6]For a detailed discussion of s 160 unions, see Bart 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 and B A Rwezaura, “The Court of Appeal of Tanzania and the Development of the law of domestic relations”. Vol 16 No 2 (1989) Eastern Africa Law Review 146-186 esp. 159-164
[7] See John Kirakwe v Iddi Sinko 1989 TLR 215 (HC) per Mwalusanya J; Elizabeth Salwiba v Peter Obara [1975] LRT n 52, Raphael Dibogo v Flabianus Wambura 1975 LRT n 42. In Theresia Msiwao v Mwamba Mohamed (DSM) High Court (PC) Civ App No 10 of 1978 the High Court held that in cases where the presumption under s 160 has not been rebutted, the parties remain husband and wife and will be so regarded by the law until they have taken “the necessary steps to bring the relationship to an end”. See also Ally Mfaume Issa v Fatuma Mohamedi Alkamu 1974 LRT n 67 (per Kisanga J).See also Salum Itandala [1982] TLR 333. And more recently, F. Twaibu J has also held that parties were validly married in terms of s 160 (1) of the Law of Marriage Act (p 29( R. E .2002). See Joseph Peter v Fatuma Omary, DSM High Court Civil App No 35 of 2011 (date of decision 11.04.12).
[8]See John Kirakwe (above)
[9]See also Hadija Hamis v Moses Ndesanjo (Singida High Court Matr App No 2 of 1992 (per MwalusanyaJ)
[10]DSM High Court Civil App No 64 of 2004 per Manento JK (unreported) (decided on 13 June 2006)
[11]Francis Leo v Paschal Simon Maganga [1978] LRT n 22 (per Mafalila J); Harubushi Seif v Amina Rajabu 1986 TLR 221 (per Korosso J); Zaina Ismail v Saidi Mkondo 1985 TLR 239 (Kapoor Ag J); Anastasia Mapunda v Agathon Mbepera (Mtwara) High Court Civ App No 45 of 1992 (Kazimoto J)
[12]See above.
[13]1994 TLR 197 (CA) (Omar, Mnzavas and Mfalila JJA) The judgement in this case was written by Mfalila JA
[14]Note that the Court of Appeal does not answer (in the above case) several questions raised by s 160 including cases where there is an incomplete marriage ceremony such as in John Kirakwe v Iddi Sinko 1989 TLR 215
[15]For a discussion on initial capacity to marry see Charles Ruyembe v Mwajuma Saleh (citation?)Note also the issue of lack of initial capacity to marry came up in Francis s/o Leo (cited above) and Mfalila J held that lack of initial capacity to marry is sufficient evidence to rebut the presumption under s 160 LMA. But as I have argued elsewhere, this is a difficult proposition because it presupposes that the law can presume against itself. In other words, the law cannot prohibit a marriage where parties have no initial capacity to marry and still create a presumption, albeit rebuttable, in favour of such a marriage.
[17][17] Note that the prohibition applies as long as both parties continue to profess the Christian faith. Thus a Christian couple who initially contracted a Christian monogamous marriage may convert their marriage to potentially polygamous marriage if one or both parties cease to belong to the Christian faith.
