LEGUSC LAWS

Empower your legal journey with our comprehensive legal resocurces

Family law: Rights and Duties of the Child in the Family

family law , law

 Introduction:  

Child and Family

The general law relating to the child is wider than what students of family law are expected to study. For example, the law relating to the child in conflict with the law is not included as part of the family law curriculum. Similarly, the law relating to child care and protection and child employment is also outside the family law syllabus. It is important to set these boundaries in order to focus specifically on the law relating to the child within the family context. The approach taken in this lecture is to explore the rights and obligations of the child within the family. The approach envisages a tripartite relationship between the child, the family and the state. This lecture examines the rights of the child within the family, the status of the child under the law, presumption and proof of parentage and guardianship.

Rights and Duties of the Child in the Family

The idea that a child has rights within the family is novel in many jurisdictions and indeed even today its roots are not yet firmly entrenched. For many years the law assumed that the child would be safe and secure within the family and therefore did not need any rights. The position changed radically after the United Nations Convention on the Rights of the Child (UNCRC) came into force in 1990 and was ratified by almost all states including Tanzania.[1]The enactment of the Law of the Child Act 2009(LCA) aimed, among other things, at implementing some of the provisions of the UNCRC.
Part 2 of the LCA consists of several provisions prescribing the rights that the child is entitled to enjoy. These include the right not to be discriminated against, the right to a name and nationality, the right to grow up with parents, the right to express his or her views and to participate in all decisions affecting him or her. The child also has the right to be free from torture or other cruel and degrading treatment and/or punishment. The term ‘degrading treatment’ means an act done to a child with the intention of humiliating or lowering that child’s dignity.[2]Any cultural practices or customs which dehumanise or are injurious to the physical and mental well-being of the child are also an infringement of the child‘s rights.

Furthermore, no correction of a child is permitted which is unreasonable in kind or in degree according to the age, physical and mental condition of the child. Again no correction of a child is permitted if the child by reason of tender age or otherwise is not capable of understanding the purpose of the correction. It is also prohibited to employ or engage a child in any activity that may be harmful to his or her health, education, mental, physical or moral development.[3]
Apart from the child’s rights enumerated above the LCA also provides for the general duties and responsibilities of the child. These include the duty to work for the cohesion of the family; to respect his or her parents, guardians, superiors and elders and to assist them in case of need; to serve his or her community and nation by placing his or her physical and intellectual abilities at its service in accordance with his or her age and ability; to preserve and strengthen social and national cohesion; and to preserve and to strengthen the positive cultural values of his or her community and the nation in general in relation to other members of the community or nation.[4]  It is clear from the above discussion that Tanzania law now recognises that a child has rights and responsibilities. This has significant implications for the way the law looks at the relationship between the child on the one hand and his or her parents on the other hand. As will be noted later in Lecture Ten, the acceptance that children have rights is the foundation of the concept of parental responsibility.


 Status of the Child under the Law
The term status of the child means the standing of the child before the law. Section 4 of the LCA defines a child as “a person below the age of eighteen years.” The status of being a child has important legal consequences. On the one hand the law considers the child to be vulnerable and therefore entitled to protection. Such protection carries with it a number of legal incapacities.[5]On the other hand, the law also recognises that a child is a human being, albeit young, vulnerable and still evolving, who is entitled to exercise his or her human rights consistent with the child‘s age and evolving capacity. The child is also entitled to respect and dignity from adults.[6] Many of the provisions of the Law of the Child Act can be summed up as reflecting the two competing strands.
For a example, whereas the child has no legal capacity to enter into a binding contract except for necessaries of life, section 77(1) LCA states that a child  has the right to work. Yet the said right to work is qualified by a series of provisions aimed at protecting the child from exploitation and other harmful employment practices. Again the law recognises that a child, at a particular age,  has the legal capacity to commit offences, at the same time the law seeks to make special provisions for the child in conflict with the law as provided in Parts IX and X of the LCA.
In sum, the legal status of the child in Tanzania has been greatly raised by the enactment of the LCA, which seeks to a fair degree to implement the CRC in accordance with Tanzania’s international treaty obligations.

Proof of Parentage

The parents of a child are the most important persons in the child’s life. Parents are the link between the child, the state and the law. Ideally, every child has to have identifiable parents who are legally responsible for the child’s upbringing and who remain responsible for that child until the child attains majority age or other parents are found for that child. Indeed the entire structure of the law relating to the child is based on the strong assumption that the child has parents or persons acting in the place of parents.  Once the parents are absent, the state has to take over in order to act as a substitute parent. It is for this reason that proof of parentage is important not only for purposes of the child’s identity and emotional well being but also for the smooth operation of the entire legal structure designed to support the child throughout his or her childhood.
Section 35 of LCA states that a person seeking to be declared a parent of a child may rely on any one of the following five pieces of evidence. These are: a) valid marriage between the parents of the child, b) name of the parent having been entered in the Register of Births, c) performance by the man of a customary ceremony signifying that he is the father of the child, d) public acknowledgement of parentage by the father, e) DNA test results.  What emerges from the foregoing five criteria is that the law has provided a wide and flexible framework for proof of parentage. It has combined the common law presumption of legitimacy with the African customary law principles relating to proof of parentage.

Also to be noted is that the law has seemingly moved away from the concept of legitimacy to one of parentage.  Thus s 3 LCA defines a parent as a biological father or mother and says nothing about the relationship between the father and the child’s mother. The question as to who may apply to court for “an order to confirm the parentage of a child” section 34 LCA provides five persons. These are, a) the child, b) the parent of the child, c) the guardian of the child, d) a social welfare officer; or e) any other interested person but with special leave of the court.[7]

 Presumption of Parentage

Although the LCA does not specifically speak of the common law presumption of paternity, it is clear from s 35, (except for the DNA testing), that the evidence required to prove parentage (read paternity) is based on the old presumption of paternity. For example, marriage creates the presumption that the husband is the child’s father until the contrary is proved.[8] The inclusion of the name of the father in the Register of Births also raises a rebuttable presumption of parentage. The performance of customary ceremony by the child’s father and/or public acknowledgement of paternity also raises a similar presumption of parentage. It seems that where such evidence is produced and one of the parties wishes to rebut the presumption, that party would have to produce further evidence to rebut such a presumption. In this context, it is ultimately the DNA test that will prove beyond doubt that the putative father is or is not in fact the child’s father. It appears that the English Common law presumption of paternity was extremely useful tool in the period before science and technology could conclusively show who was the child’s father. It remains useful even today given that there is limited availability of DNA testing in most parts of Tanzania. The question that the LCA does not appear to address is whether the parentage of a child born during wedlock can be challenged by any interested party

 Guardianship

A guardian is a person other than a parent who has parental responsibility over a child. Such a person may be appointed by deed, will, or order of the court. The guardian has the duty of taking care of the child and managing the child’s property as if he or she were the child’s parent. As noted above the law relating to the child in most jurisdictions is based on the assumption that a child has a parent or in the absence of a parent, someone who stands in the place of a parent. A guardian is such a person who stands in the shoes of the parent. There are also other persons who are neither parents nor guardians but are vested with parental responsibility. For example, a patron of an approved residential home, a manager of an institution and foster parents are persons legally vested parental responsibility to act in lieu of parents.[9]

 Summary and Conclusion

This lecture has identified the scope of the law relating to the child. The focus is on the child within the family and the child’s relationship with his or her parents. The discussion on the rights of the child within the family has shown that the child is now legally recognised as a holder of rights. This lecture has discussed the legal status of the child and pointed out that although the law recognises a child to be a holder of rights, yet the child is also immature and vulnerable; hence requiring legal protection. Such protection is partly delivered in the form of legal incapacity. [10]We have also noted that the law relating to proof of parentage is based partly on the old presumptions of parentage except for the DNA test as evidence of parentage. We have noted that the development of science and technology has gradually weakened the importance of the old presumptions as to parentage.  Guardianship, it has been argued, arises out of the need to provide a substitute parent for the child. This lecture has noted also that the entire arrangement for child upbringing and protection requires the involvement of a parent or a person/institution acting as parent. In cases where a parent is absent, it has become necessary for the law to create substitute parents such as the guardian.  The next lecture examines the child’s rights and obligations of within the new concept of parental responsibility.

Citation

[1] Only Somalia, South Sudan and the United States of America are not parties to the UNCRC. There are indications that Somalia will become party in the near future.
[2]  s 13(3) LCA
[3] Child development in relation to the welfare of the child means the process of change during which a child is able to reach his or her highest physical, mental, emotional and social potential through continued interaction with the environment around that child (adopted from s 3, LCA).
[4] Adopted from Article 31 of the African Charter on the Rights and Welfare of the Child 1990.
[5] For example, a child is not legally competent to contract except for necessaries of life. A child may not sue or be sued in tort except by the next friend. Parents are responsible for the torts committed by their children. A child lacks the capacity to marry except with parental consent provided he or she has reached the minimum age for marriage, fixed at 14yrs.
[6] Section 11 LCA states that a child who is capable of forming an opinion shall have a right to express his or her opinion and the right to be listened to and to have a right to participate in decisions which affect his or her well-being. This section takes after Art 12(1) of the UNCRC which states “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
[7] The requirement for special leave of court is intended to guard against a third party, such as an adulterer, seeking to challenge the parentage of a child born in wedlock. See  Amina Bakari v Ramadhani Rajabu 1984 TLR 41(HC).  There are also cases where in a visa application some foreign embassies have required that applicants undergo a DNA tests  to confirm the parentage of a child or children being taken overseas. 
[8]See Rule 175 of the Customary Law Declaration Order (Government Notice No 279/1963). In Amina Bakari v Ramadhani Rajabu 1984 TLR 41 (HC) Lugakingira J stated that “the contract of marriage confers certain rights on the husband, including the right to children born during the subsistence of the marriage...It is therefore open neither to the wife nor to her lover to deny the husband’s paternity to a child born during the subsistence of the marriage”.
[9] See ss 52 and 53 LCA.
[10] The question then is where should one draw a line between protection and respect for the child’s rights. Part of the answer lies is in the concept of the child’s evolving capacity. This concept suggests that the child should be prepared to assume progressively the full exercise of his or her rights as he or she grows up.  See Art 5 CRC.

Read more »
Tags: ,

UNDERSTAND FAMILY LAW : PROTECTION OF FAMILY FROM VIOLENCE

family law , law

(Previous notes family law 1 / 2 / 3 / 4 / 5 / 6 / 7 / 8 / )
 Introduction

It was noted in the first post  that one of the functions of family law is to protect family members from physical, psychological and economic harm. Domestic violence is an example of such harm. The term domestic violence refers to acts of physical, mental, and/or sexual abuse committed by one spouse against the other or against the children of the family. In polygamous households, domestic violence may also occur between co-wives. In this lecture we consider domestic violence and the extent to which family law protects family members from such physical and psychological harm.
The starting point here is the Law of Marriage which surprisingly contains very little on this form of protection. The closest reference to domestic violence in the Law of Marriage Act is section 66 which prohibits married couples from inflicting “corporal punishment” upon one another. But there are no additional provisions for enforcing this prohibition. On the other hand there is s 139 LMA which empowers the court during the hearing of any matrimonial proceedings or on or after the grant of the decree annulment, separation or divorce, to order any person to refrain from forcing his or her company on his or her spouse or former spouse and from other acts of molestation. The term molestation is not defined by the LMA. It should be taken to include most acts of domestic violence.
Indirectly, there is also section 140 LMA which provides that no proceedings may be brought to compel cohabitation between married couples.  Others include provisions governing voluntary separation and divorce. These carry the implication that a victim of domestic violence could secure protection by obtaining physical separation or by ending the marriage through divorce. But there are no provisions to prohibit the aggressive spouse from following the victim where he/she lives and attacking her there.

In effect the Law of Marriage Act is largely silent on the protection of spouses from domestic violence. This is in contrast to jurisdictions such as South Africa and Zimbabwe which have specific legislation designed to fight domestic violence.[1]

 Domestic Violence Defined

Domestic violence occurs when one of the spouses or former spouse commits  or threatens to commit acts of physical and/or emotional abuse or violence against the other. It is committed when one of the spouses destroys the other spouse’s property or isolates him/her from potential sources of support including family and friends. Exclusion from access to personal items such as food, money, mobile phones, transport, credit cards, etc; amounts to domestic violence; including various forms of harassment such as stalking and silent phone calls.[2]

 Civil Remedies

As noted above the Law of Marriage Act is largely silent and clearly inadequate to prevent domestic violence. But note must be taken of s 139 LMA which empowers the court during the pendency of any matrimonial proceedings or on or after the grant of the decree annulment, separation or divorce, to order any person to refrain from forcing his or her company on his or her spouse or former spouse and from other acts of molestation. The term molestation is not defined by the LMA. It should be taken to include most acts of domestic violence. There is, however, section 65(b) of the Law of Marriage Act which provides that “a husband and wife shall have the same liability in tort towards each other as if they were unmarried.” Much of the foregoing analysis relating to domestic violence could fall under the common law tort of assault and/or battery. 
Assault can be defined as an intentional attempt or threat to inflict injury upon a person. Such an attempt must be capable of causing, in the mind of the intended victim, reasonable apprehension of bodily harm. In order for the harm apprehended to be reasonable the potential attacker must have the  present capability to cause the intended harm.[3]An assault is both a crime and a tort. Therefore, an attacker may face both criminal and civil sanctions. A criminal assault conviction may result in a fine, imprisonment, or both. In a civil assault case, the victim may be entitled to monetary damages from the assailant.

Criminal Remedies

Domestic violence is also committed in the form of criminal conduct such as physical assault (in its various grading), sexual assault, threats/intimidation and murder.[4] These offences are provided for under the Penal Code[5] and although they are intended to apply to strangers, they can also be used to prevent and punish domestic violence. There are, however, several factors that hinder the effective application of these laws such that, except for murder, it can be said that they are not helpful in fighting domestic violence. [6]

Domestic Violence and Human Rights

Domestic violence affects a large proportion of women compared to men. Women are subordinate to men both economically and socially. There is a sense in which domestic violence can be viewed as a male weapon to  assert control over women and to maintain their subordination to men.[7] On that basis, domestic violence has been associated with “gender based violence”, that is, violence directed at a woman because she is a woman. International human rights treaties including, in particular, the United Nations Convention on the Elimination of Discrimination Against Women (CEDAW) prohibit discrimination against women and gender based violence. In the light of the above domestic violence is now viewed as a human rights issue and not simply a crime or a civil wrong.
States parties to international human rights treaties are required to take deliberate and effective measures to eradicate domestic violence. In Tanzania, as noted above, there are no specific provisions designed to prevent or at least control domestic violence. Law enforcement agencies and policy makers are reluctant to apply existing legal provisions to protect victims of domestic violence. Indeed, in many communities domestic violence is viewed as an internal family matter and there is also in many communities a degree of tolerance to domestic violence. Community leaders are also known to be reluctant to intervene or condemn acts of violence against women.

The Limits and Limitations of the law

It has been noted above that Tanzania has not taken adequate steps to combat domestic violence at various levels. For example, no special legislation has been enacted to target domestic violence as a social problem. Although there is a special desk for battered women at certain police stations, there is no evidence that husbands who beat up their wives are actively sought and punished. Some battered wives are slow to report domestic violence for fear that such reporting would make matters worse for them. Some women fear that reporting would lead to the imprisonment of a bread winner. There is also social pressure against wives taking husbands to court or reporting them to authorities.[8]The inadequacy of the law against domestic violence is no doubt an accurate reflection of the community’s ambivalence about how to tackle this social problem. It is clear that any efforts to establish a legal framework to fight domestic violence must begin at the level of the community because the law cannot work in isolation. 

Summary and Conclusion

One of the functions of family law is to protect family members from harm. The Law of Marriage Act, which is Tanzania’s principal legislation on family law, has little to say about the protection of spouses and their children from domestic violence. Section 65(b) LMA which states that spouses are liable to torts committed against one another opens up the possibility of civil actions but these are a rarity. The fact that most acts of domestic violence are punishable as criminal offences also implies that spouses who are guilty of domestic violence can be prosecuted and punished. But again this is rarely done. The low status of women in our society and the community’s tolerance to the vice has been implicated in the persistence of domestic violence.  This has in turn provided strong ground for the widely accepted view that domestic violence is a human rights issue. Tanzania is a party to several international treaties prohibiting discrimination against women and the protection of women’s human rights. It is clear that Tanzania has failed to protect spouses from domestic violence and has therefore breached its international treaty obligations. Tanzania has shown sensitivity to gender equality in other spheres. It should now take another step to fight domestic violence and make the family a safe place for all its members.

Citation

[1]Cite the relevant legislation
[2] See, Domestic Violence: A guide to Civil Remedies and Criminal Sanctions, The UK Lord Chancellor’s Department (2003, at p3) cited in Rebecca Probert (2003, 107).
[3] put ref
[4]In Republic v Kihandika Lwenyakali 1973 LRT n 91 the husband was found guilty of manslaughter on account of the injuries he inflicted upon his wife.  Onyiuke J, in his judgement, noted that the accused husband “was undoubtedly guilty of a most barbarous and callous conduct by [tying and] leaving a 7 months pregnant wife bound with ropes the whole night and inflicting cut wounds on her with some hot sharp instrument. The accused exhibited a shocking degree of callousness and perversity in his treatment of the deceased. His conduct was most revolting. ” The accused as sentenced to 12 years imprisonment.
[5] See Penal Code Cap 16  R. E . 2002 and Sexual Offences Special Provisions (SOSPA) Cap 110 R.E. 2002
[6] see Domestic Violence in Tanzania, in Scholastica Jullu,Safina Hassan, Mary Njau and Florence Tesha, (eds) Women’s Legal Aid Centre (WLAC) (2009) pp 106-200
[7] See   Deus Buganywa, “Ndoa ni Ndoana kwa Ghathi Chacha binti wa miaka 21” in Raia Mwema, Novemba 27th -December 3, 2013 p 6 where it is reported that a 23 year old husband Chacha Mwita  attacked his 21 year old wife Ghathi and severed off her foot. It appears the wife  delayed opening the door for her husband when he returned home at night. It is reported that the wife delayed opening the door which made Chacha suspicious. But instead of searching in the house for the suspected lover, he simply attacked his wife with a machette.
[8] For example, Gathi Chacha, who had her foot chopped off with a machete by her husband reports that the husband’s relatives were upset by her because she reported the incident to the authorities. See Raia Mwema, Nov 27-Dec 3rd (2013) ar p 6.


Read more »
Tags: ,

UNDERSTAND FINANCIAL CONSEQUENCES OF DIVORCE

family law , law

(You may read the previous notes on family law here 1 / 2 / 3 /4 /5/6 / 7 )
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.

Read more »
Tags: ,