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FAMILY LAW: UNDERSTAND LEGAL CONSEQUENCES OF MARRIAGE

family law , law

 Introduction
Having examined the law of nullity and its effects let us now consider briefly the legal consequences attaching to a valid marriage. This section looks at the rights and obligations of marriage between the parties and to a lesser extent its effects on third parties. Some of these rights and obligations are well captured by Part IV and V of the Law of Marriage Act.

 Right to Consortium

The term consortium means “living together as husband and wife with all the  incidents  that flow from that relationship”.[1]According to Lord Reid, consortium is difficult to define with any precision given that it depends on the circumstances of the parties such as age, health and economic status.  It can be likened to a bundle of rights some of which are incapable of precise definition.[2]Despite the lack precision there are certain rights and obligations that are widely recognised as flowing from the state of being married. These include the mutual right to cohabit, to maintenance, to reside in the matrimonial home, to inherit upon the other spouse’s death intestate, to use the surname of the other spouse and to claim damages against a third party for interfering with his or her consortium.

 Cohabitation
There is a strong presumption that upon marriage the spouses will begin living together as husband and wife. In the African cultural context, a customary marriage ceremony includes a moment when the bride is symbolically handed over to the prospective husband or his family. In the eye of the law, the spouse’s duty to cohabit is expressed indirectly by certain legal provisions. These include the law relating, for example, to the spouse’s right to reside in the matrimonial home (s 59LMA), the right to petition for divorce on the ground of desertion or prolonged separation or living apart (s.107(2)(e),(f)&(g))[3]and the right to claim damages on the ground of adultery or enticement.[4]Perhaps more direct is section 111 LMA which states that a decree of judicial separation “shall relieve the parties of the duty to cohabit and to render each other help and companionship and…of the duty to maintain each other..”  We now turn to the duty to maintain a spouse.

 Maintenance

Closely connected with the mutual duty to cohabit is the spouse’s duty to maintain the other. Section 63 LMA states that “it shall be the duty of every husband to maintain his wife or wives and to provide them with such accommodation, clothing and food as may be reasonable having regard to his means and station in life.” And where the husband has neglected his duty to maintain the wife or wives, the law entitles the wife to pledge the husband’s credit; to borrow money in his name or to use any of his money left with her in order to meet her basic needs (s 64 LMA).
Although under the Law of Marriage Act the primary duty to maintain a spouse is placed on the husband, the wife is also obliged to maintain her husband if she has the means to do so and if the husband is incapacitated, whether wholly or partially, from earning a livelihood (s 63(b)). The foregoing provision suggests that if both spouses have the means, it is the husband who has the primary obligation to maintain the wife.
But although the law is lenient upon the wife, reflecting the economic and cultural realities of Tanzania, in practice wives do shoulder considerable burden of maintaining the family, sometimes even surpassing their husbands. What needs to be stressed here is that marriage creates a mutual duty upon the spouses to maintain one another in accordance with each spouse’s ability. If both spouses have the means, the duty to maintain one another must fall equally on both.

Right to reside in the Matrimonial Home

The duty to cohabit also presupposes a physical space where the spouses will reside.[5] Section 59(1) LMA states in effect that where the matrimonial home belongs to one of the spouses, that spouse, “shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way of sale,  gift, lease, mortgage, or otherwise..”. Moreover, the other spouse shall be deemed to have an interest in that property which is capable of being legally protected “by caveat, caution, or otherwise under any law for the time being in force relating to the registration of title to land or deeds.”
Where, in contravention of the above provisions, the spouse nonetheless alienates the said matrimonial home, then the other spouse’s occupation rights shall take priority over the rights of the buyer for as long as the marriage subsists.[6]It is also stated under s 159(3) LMA that should the owner- spouse desert the other, then the deserted spouse shall not be liable to be evicted from the matrimonial home by or at the instance of the owning spouse. (Additional provisions from the Land Acts.. See Binamungu, 149-153, 106 fn 281 and the Rent Restriction Act Cap 339)
It is clear from the foregoing provisions that the right to reside in the matrimonial home is a form of a charge or encumbrance on the property and is intended to secure the occupation rights of the other spouse. It is available to the non-owning spouse by virtue of the marriage and not otherwise. 
Section 59 LMA has been invoked typically by wives in cases where a husband purports to alienate the matrimonial home without the wife’s knowledge and consent. In Hadija Mnene,[7] the wife was granted a right to continue to reside in the matrimonial home under s 59(2) LMA notwithstanding the fact that the sale of the matrimonial home was held to be valid.  Given that most wives were either unwilling or unaware of their rights under s 59 LMA it was decided to enhance the protection by further enactment.    But position of the wife was further strengthened in 2006 following the enactment in 2006 of the Land Act.[8]

Intestate Inheritance

Our law of inheritance lags behind the law of marriage in that it makes no explicit provisions for the protection of a surviving spouse on the other’s death intestate. This is in line with most of the existing African customary laws. But in recent years some High Court judges have handed down a number of decisions to the effect that such customary laws are discriminatory and unconstitutional. The judges have held that a widow has a right to a descent share of the estate upon the death of her husband.  Indeed, others have relied on s 114 of the Law of Marriage Act, arguing that since upon divorce or separation a wife is entitled to a share of the matrimonial assets, then a widow should be taken as a co-owner of the estate and her share should be set aside before the estate is divided up.[9](Rabiuzima etc Constitutionalization of family law).

Damages for Adultery and Enticement

Section 72 LMA provides that a husband or wife may bring a suit to claim damages against any person with whom his or her spouse has committed adultery. This provision has two origins. The first is the English common law version which dates back in time when the husband was the only person entitled to claim damages on the ground that the defendant had violated the husband’s consortium rights.[10] The cause of action was known as criminal conversation, otherwise known as crim con. The wife was not entitled to make such claim since she did not possess such a (property) right in the person of her husband. The husband was also entitled to take out an action for restitution of conjugal rights (RCR) against his wife and this entitled him to compel his wife to return to the matrimonial home.[11]With the rise of gender equality this cause of action, along with its associated damages for enticement, were either abolished or extended to the wife. Section 72 LMA originated from that source.
The second source is African customary law which takes a similar view as the old English common law that upon marriage the wife falls under the control of the husband. He is then entitled to her company and services. Thus the husband may compel his wife to cohabit with him and in the old days he could compel her to engage in marital intercourse without committing the offence of rape or indecent assault. Since 1971, “no proceedings may be brought to compel a wife to live with her husband…”[12]
The existence of the foregoing provision is clear evidence that the subjection of the married woman to the command and control of the husband is now a matter of history. Thus it would be argued that instead of extending the right to claim damages for adultery to the wife, s 72 LMA ought instead to have abolished that right altogether. Such conduct whether by the wife or husband should, as it is now, be redressed solely under the law of separation or divorce.

Use of Surname

Although it is common practice, upon marriage, for wives to use their husband’s surnames, there is in fact no law requiring them to do so. Hence, wives may choose to change their names, to retain their maiden names, or to add their husband’s name to their existing maiden names using an hyphen. According to Peter Bromley, “an adult may use any surname he chooses provided that his intention is not to perpetrate a fraud”.  Thus a former wife may continue to use her former husband’s name and an unmarried woman is also free to use the surname of a man she is living with provided such use is not intended to defraud or mislead anyone.  Since this procedure is not governed by our marriage law, it is necessary for the wife to effect such a change by taking oath before a Commissioner for Oaths to that effect.[13]Although some men my frown at the idea, it is also permissible upon marriage for a man to change his surname to that of his wife. This is not practised in many jurisdictions except in Sweden where the law of names was revised in 1983 to permit men to adopt the maiden names of their wives or the names of their partner, as well as for women to adopt their husband's name.[14]
5.2.6   The Limits of Marriage
It has been noted above that Part IV and V of the Law of Marriage Act (LMA) encapsulate a number of legal consequences of marriage. I should add that there are . some provisions in Part IV and V (LMA)  which seek to limit the effect of marriage by making it clear that marriage does not bring about certain legal effects. For example, s 58 LMA 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. Nor shall marriage prevent either the husband or the wife from acquiring, holding and disposing of any property. Similarly spouses retain their legal capacity to contract, to sue and their individual liability to be sued in contract and tort. And the husband is no longer held liable for the torts committed by his wife. But as we shall see, the wife may borrow money in the name of the husband for the purchase of food and other necessaries of life.[15]
Another important provision is section 66 LMA which makes it clear that “notwithstanding any custom to the contrary, no person has any right  to inflict corporal punishment on his or her spouse.” Although this section is couched in gender neutral terms, its primary object is to caution men that they are not permitted to beat their wives even if doing so may appear to be permitted by their customs. These and comparable provisions are a departure from the old English Common law and customary law where marriage resulted in the subjection of women to the control of their husbands. Indeed the so called doctrine of unity of the husband and wife had the effect of taking away the wife’s capacity to acquire and hold any property in her own name  nor to contract, sue and to be sued in contract and tort. The husband on the other hand was held liable for the debts of his wife as well as in respect of her torts. All this was abolished by the LMA and this accounts for some of the provisions in Part IV and V LMA which seek to make it clear that marriage does not have certain effects.

 Criminal Law and Evidence

Section 130(1) of the Evidence Act 1967 (Cap xx R E 2000) states that, a husband or wife is a competent but not a compellable witness for the prosecution. As noted by Mapigano J “a spouse can therefore elect to give evidence or decline to give evidence on behalf of the prosecution”[16] Moreover s 130(2) requires the court to make this provision known to the particular spouse before he or she elects to give evidence for the prosecution. The court must also make record of this fact in the record of proceedings otherwise such evidence is inadmissible. But a spouse is both competent and compellable witness for the prosecution where “a person charged is charged in respect of an act or omission affecting the person or property of the wife or husband o such a person or the children of either of them.”  (s130 (2)(b) check Evidence Act).[17]The primary object of the above rules is to protect marital confidences while also allowing a spouse to decide on his or her own whether or not to give evidence for the prosecution against his or her spouse. In the event the offence relates to the person or property of the other spouse of their children, no such protection is given or indeed required.
To be noted also is the change introduced in 1971 by the Law of Marriage Act which replaced s 274 of the Penal Code to make is clear and to declare that “a husband may be guilty of stealing from his wife or a wife from her husband. This is a necessary consequence of Part IV (ss 56, 58 and 60-62) LMA relating to separate ownership of property between spouses.

 Summary and Conclusion

One of the main legal consequence of marriage, as noted above, is the spouse’s mutual right to the other’s consortium. This is indeed the foundation upon which other rights and obligations emanate. Even the law of evidence which makes a spouse a competent but not compellable witness against the other in criminal trials is intended to protect private and intimate communications between a husband and wife. Similarly, the law which until 1971 provided that a husband and wife cannot legally conspire was based on the English common law view that a husband and wife have one mind in law.
But we also need to recognize that the law on this subject exhibits the relics of the English common law that subjected married women to the control of their husbands. Moreover, we should also reflect on the removal such subjection and think how this process might bear the seeds, not only of total spousal equality, but also of the tendency to eliminate the difference between married and unmarried couples thus rendering the concept of marriage increasingly an unnecessary legal concept.[18]

BIBLIOGRAPHY

Eric Clive, ‘Marriage; an Unnecessary Legal Concept?’ in J Eekelaar and S Katz (eds) Marriage and Cohabitation in Contemporary Societies (1980) Butterworths pp 71-82
 Jonathan Herring (ed)
P M Bromley and N V Lowe, Bromley’s Family Law, 7th Ed (1987) pp 103-147




citation
[1]  See P M Bromley and N Lowe, Bromley’s Family Law, Butterworths (ELBS) 8thed  1992 at p 107
[2] See Best v Samuel Fox & Co Ltd [1952] AC 716, at 736 cited in P M Bromley and N Lowe (op cit) at 110.
[3] Section 67 of the Law of Marriage Act states that spouses may make a written agreement to live apart and “any such agreement, including any provisions as to maintenance, matrimonial property and the custody of the infant children, if any, of the marriage shall be valid and enforceable.” See also s 107(2)(e)
[4] See s 72 and 73 LMA
[5]The term ‘matrimonial home’ is defined by s 2(1) LMA to mean, “the building or part of a building in which the husband and wife ordinarily reside together and includes--- (a) where a building and its cartilage are occupied for residential purposes only, that cartilage and any outbuildings thereon; and (b) where a building is on or occupied in conjunction with agricultural land, any land allocated by the husband or wife, as the case may be, to his or her spouse for her or his exclusive use.”
[6] See s 59(1) and (2) LMA.
[7]Hadija Mnene v Ally Maberi Mbaga and the National Bank of Commerce, (Mwanza) High Court, Civ App No 40 of 1995 (per Lugakingira J) unreported (cited in CS Byamungu, Thesis) at p115-116).
[8]See GN No 43 of 2006. See also Samwel Olung’a Igogo and Two Others v Social Action Trust Fund and Ors [2005] TLR 343
[9] See B. Rwezaura and U. Wanitzek ’ The Constitutionalisation of Family Law  in Tanzania’ (2006) in A Bainham Ed. International Survey of Family Law, 444, at 445
[10]See Bromley’s Family Law, PM Bromley and NV Lowe  7th ed ( 1987) pp 105-118
[11] See P M Bromely and N Lowe (op cit) at pp 107-111
[12] Section 140 Law of Marriage Act  [Cap 29 R.E. 2002]
[13] According to P M Bromley and N Lowe, op cit.  “the execution and enrolment of a deed poll merely provide evidence of the executant’s intention to be known by a different name and have no other legal significance.” at p 110 fn 9.
[14]  See Wikipedia Free Encyclopaedia.
[15]See Section  xx LMA
[16]Kotia Magomba v Republic 1974 LRT n 35
[17]Republic v Kihandika Lwenyakali , 1973 LRT n 91 per Onyiuke J where the court also held that the expression “ the person or property of the wife” includes a co-wife.  According to Onyiuke J  “where a husband commits an offence, e.g.  an assault, against a member of his family such as one of his wives or any of their children, I can see no reason in principle for not making any of his wives who witnessed the incident a compellable witness.” p392
[18]  See Eric Clive in Eekelaar (1982?)

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Legal Effects of Nullity Decree and Remedies In family law

family law , law

 Introduction

(You may read previous notes on family law by clicking here 1 / 2/ 3  )

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.

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THE CONCEPT OF NULLITY IN FAMILY LAW

family law , law


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:
  1. 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;


 Void Marriage Ceremonies

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

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