K A M PA L A

I N T E R N AT I O N A L Gongo La Mboto, Pugu Road

U N I V E R S I T Y I N TA N Z A N I A P.O Box 9790, Dar es Salaam–Tanzania
D E PA R T M E N T O F L E G A L S T U D I E S Tel: +255-222843251, +255-614226275
Mob: +255-653570615,
E-maill: slw@kiu.ac.tz,
Website: www.kiu.ac.tz

FACULTYOF EDUCATION AND LEGAL STUDIES

DEPARTMENT OF LAW

FAMILY LAW COURSE OUTLINE

Page 1 of 49

“Exploring the Heights”

“Exploring the
 PART ONE

1.0 GENERAL OVERVIEW

1.1 INTRODUCTORY BACKGROUND

This course covers different fields of family law existing throughout Tanzania.
Comparative illustrations are also drawn from the rest of East Africa, Africa and
other Common Law and Civil Law systems. Within the East African region,
different systems of Family Law exist and operate simultaneously within a single
legal system often giving rise to much internal conflict of laws. The Tanzania
Law of Marriage Act, Cap. 29 R.E 2019 [LMA Act No 5/1971, as amended by
Act No.23/1973, Act No.15/1980, Act No.9/1996] was the first attempt by an East
African country to integrate the various systems of Family Law by providing a
type of statutory umbrella under which all those systems operate. In 1969 the
government prepared a White Paper Number One [1] where it was recommended
that one family law should be enacted whereby the law tried to recognize different
systems of marriage. The challenges that have been encountered in the application
of the LMA will be studied carefully.
1.2 OBJECTIVES OF THE COURSE
 To acquaint students with the general principles of law governing family
relations in East Africa
 Students should be able to grasp the connection between family and its sister
disciplines within the social sciences
 To make students understand and appreciate the effects of social and
economic changes on family law and family relations
Page 2 of 49
1.3 PRINCIPAL SOURCES OF FAMILY LAW
 The constitution-provisions on human rights address the imbalances that
most traditions/religions had in curtailing women’s rights.
 Text books-Inadequate to cover the entire course. Resort to English family
law text books and treatises from other Common law jurisdictions-India,
Nigeria, Canada etc
 Cases-Adequately fill the gap left by non-availability of texts which cover
the entire course.
 Statutes-The LMA, CPC, Cap.33 R.E 2019, The Penal Code, Cap.16,
SOSPA, Cap.101 and the Probate and Administration of Estates, Cap.352
 Online sources-Most family law writings are outdated. For this reason,
students should make use of the abundant sources of family law available on
the internet search engines.
PART TWO
2.0. THE TRADITIONAL SOCIAL STRUCTURE
2.1 Types of Family Systems
 Origins of the family
 Extended Family
 Patrilineal and Matrilineal
2.2 Types of Conjugal Unions [Ss.9-12, LMA]
S.9(1)-Judicature and Application of Laws Act
“customary law shall be applicable to and the Court shall exercise jurisdiction in
accordance therewith in matters of a civil nature between the members of a
community in which the rules of customary law relevant to the matter are
Page 3 of 49
established and accepted-except in any case where it is apparent, from the nature if
any of any relevant act or transaction, manner of life or business, that the matter is
or was to be regulated otherwise than by customary law.
Marriages are of two types:
2.2.1 Monogamous marriage-One wife and husband for life, except if any of the
following occurs:
i)-Death
ii) Has been annulled by the Courts.
2.2.2 Polygamous or potentially polygamous
 Any of these types may be converted by the spouses declaring that they
consent to the conversion-where the husband wants to marry another wife
because the previous one is barren.
 A woman cannot be married to more than one man. If she does so, she
commits an offence known as polyandry, punishable with imprisonment for
a term not exceeding 3years, without an option for fine. [S.152 (1) & (2)]
 The law also does not provide for same-sex marriages as yet, and such
relationships as are still criminalized under the Penal Code.
2.3 Cases
i) Ndwawoisia Ndeamtso vs. Malasi (1968) HCD n.127-The plaintiff’s
illegitimate son was held to have a superior title to inherit clan land than a
nephew, since such child belongs to the mother.
Women and men enjoy equal rights of inheritance and the disability which
they have suffered has been abolished.
See: Bi. Mwana-Amina Makubuli vs. Severine Shumbusho, Digest of
Appeals from Local Courts [DALC) No.88,
-Saidina Angovi vs. Saiboko Mlemba, DALC, No.205
Page 4 of 49
ii) Timotheo Timanyika vs. Hassan Timanyika & Another (1968) HCD n.451
Children have the right of inheritance over the property of their paternal
uncle.
iii) Chibolyani vs. Milowara (1970) HCD n.327
Wife-inheritance: After16 years of her marriage the Appellant and getting 2
children, the Respondent left him. He petitioned for the children. The
Respondent claimed that the children were not his, but they belonged to
Mazoweya, another brother-in-law. Evidence was tendered to prove
paternity. The Respondent relied on her said paramour-Mazoweya. The
Gogo customary law was applied. The children belonged to the Appellant,
subject to paying two heads of cattle. Rule 64, Law of Persons, GN
271/1963:-
“-If the widow agrees to live as a wife with one of her deceased husband’s
relatives and consent to this has been endorsed by the family council, she
becomes the legal wife of the relative.”
iv) Stephano vs. Mwanjala (1971) HCD n.116
The Appellant’s son was married to the Respondent’s daughter at a bride
price of 6 heads of cattle and Tshs.600/-. He later died. She was to be
inherited by her deceased husband’s brother. Rather than do that, her father
received bride price from another man and married her off. Held-The father
could not marry her off before returning the bride price to the Appellant.
v) Suleiman Muwanga & Anor vs. Jiwani (1964) E.A 17-An uncle could bring
an action to recover damages on behalf a nephew.

Page 5 of 49
 PART THREE
3.0 THE STRUCTURE OF THE FAMILY IN EAST AFRICA
3.1 Application of English and Customary Law: Statutory Sources
3.1.1 The Tanganyika Order-in-Council, 1920
3.1.2 The Uganda Order-in-Council, 1902
3.1.3 The Judicature and Application of Laws Ordinance, No.571/1961(T)
3.1.4 The Judicature Act, (U)
3.1.5 The Judicature Act, No.16/1967 (K)
Cases
Carnie vs. Carnie (1966) E.A 233- Held: S.3 of the Matrimonial Causes Act(K)
and other parts of that Act were to be interpreted like the Matrimonial Causes
Act(UK) from which the Act was derived.
3.2 Hierarchy of Laws and Internal Conflict of Laws
 The co-existence of various family laws systems applicable in a single legal
system has had a telling effect, resulting to internal conflict of laws.
 Courts are enjoined to apply customary law where it is applicable, i.e. where
it is not repugnant to law and justice. Gwao Kilimo vs. Kisunda Ifuti (1938)
1 TLR (R) 4003
However, in case of conflict, statutory law applies.
See: Charles Lala vs. Abdallah Mangi (1992) TLR 336, Maagwi Kimito vs.
Gibeno Werema, Mwanza Civil Appeal No.20/1984, Unreported.
Statutory law can be imposed on the parties whose life and behaviour is regulated
by customary or Islamic law.
See: Ayoob vs. Ayoob (1967) E.A 639- A marriage contracted under statute can
only be dissolved under the statute, irrespective of the religious following of te

Page 6 of 49
parties. The invocation of “Talak” was not recognised as a means of dissolving a
marriage celebrated under the matrimonial law.
Also: Rattansey, Mahmud Nasser vs. Rattansey, Hamidabhai Mahmud (nee
Hazel May Higgins)(1960) E.A 81
i) Andrea Wisai vs. Fransisca Opong (1968) HCDn.17-A customary
marriage
does not become a Christian marriage by the subsequent baptism of the
parties.
ii) Asia d/o Amiri vs. Ahmad s/o David (1968) HCD n.206- According to
Islamic law, a child born out of wedlock, “zina’ah” belongs to the mother,
but a man would claim the child if the problem is the relationship which s
irregular (on account of differences in religious belief). Under the Pare
customary law, a father has right to legitimize his illegitimate child by
marrying his mother.
iii) Rajab Abdallah vs. Aziza Mbusha (1970) HCD n.127-The Respondent
was
married to a Christian with whom she got a child, but later abandoned him
and got married to the Appellant after she converted to Islam. She did not get
children, subsequent to which she returned to her former husband and got
remarried, and had more children. The Appellant sued for custody of the
child. His suit and subsequent appeal were both dismissed
vi) Case vs. Ruguru (1970) E.A 55-Where all customary formalities, in this
case payment of half the bride-price and performance of ram-slaughtering,
there was no valid customary marriage

Page 7 of 49
vii) Alai vs. Uganda (1967) E.A 596-In a claim for adultery, the term “any
married woman” applied to all sorts of married women, irrespective of the
type of marriage.
viii) Kristina Hamisi vs. Omar Ntalala (1963) E.A 463-The Appellant, a
Christian, stayed with the husband for some time after the husband married
another woman under Islamic rites. Later on she left and after sometime, she
filed for divorce on grounds of adultery. It was held that condonation was
only applicable when she was in the house, but what followed after she left,
was adultery, entitling her to the reliefs she sought.
Bibliography
i) Clignet, R. Many Wives, Many Powers: Authority and Power in
Polygamous Families. North Western University Press, N.Y, 1970
ii) Clignet, R. Determinants of African Polygamy, in Goody, J (Ed)
Kinship, Penguin Books, Middlesex
iii) Engels, F. The Origins of the Family, Private Property and the State.
Progress Publishers, Moscow, 1968.
iv) Leach, E.A. Polyandry, Inheritance and the Definition of Marriage, in
Goody, J (Ed) Kinship, op. cit.
iv) Malinowski, B. The Family Complex in Matrilineal and Patrilineal
Societies, in Goody, J (Ed) Kinship. op.cit.

PART FOUR
4.0 FORMATION AND NATURE OF MARRIAGE
4.1 What is marriage? [S.9 LMA]-Means the voluntary union of a man and a
woman intended to last for their joint lives. It may be monogamous or polygamous.

Page 8 of 49
Under English law, the law does not envisage a marriage beyond one man and one
wife. A leading case on the definition of marriage is that of Hyde vs. Hyde (1866)
LR P.I.D 130,133, in which marriage was restricted to a relationship between a
man and a woman, intended to last their joint lives, “to the exclusion of all others”
S.11-A marriage contracted in Tanzania may be converted:-
i) From monogamous to potentially polygamous
ii) If the husband has one wife, from potentially polygamous to monogamous
S.13 No person shall marry, being a male, has not attained the apparent age of 18,
and a female the apparent age of 15, but the Court may, for special reasons,
give leave for marriage when the parties have had permission from their
parents.
S. 14 Prohibited degrees
- (1) Grand parent or parent, child or grandchild, sister or brother, great-aunt or
great uncle, aunt or uncle, niece or nephew
(2) Grand parent or parent, child or grandchild of his or her spouse or former
spouse, etc
S.15 A man/woman in a monogamous marriage, while it subsists, cannot marry
another woman/man, and where there is a polygamous or potentially polygamous
marriage existing, the man cannot contract another marriage in any monogamous
form.
S.16 Marriage must be consented to freely and voluntarily. Consent is free if it is
not vitiated by the following
 Coercion or fraud
 Mistake as to the nature of the ceremony
 Suffering from any mental disorder or defect or intoxication so as not to
fully appreciate the nature of the ceremony.
Page 9 of 49
4.2 Customary Marriages
“The customary laws of this country now have the same status in our courts any
other law, subject only to the constitution and to any other statutory law that may
provide to the contrary”. Nyalali, C.J in Maagwi Kimito vs. Gibeno Werema,
Appeal No.20/1984, Unreported.
4.2.1 Local Customary Law (Declaration) Order, GN No.279/1963
The legislation tried to codify all customary laws, but it did not contain all that
there is in customary laws. Where the Order is silent, the answer is to be found in
the undeclared customary law.
See: Mwambope Mwaitenda vs. Lazaro Mwakanjuki (1976) L.R.T 60, Maagwi
Kimito vs. Kisiri Kubyo (1977) LRT 13
4.2.2 Primary Courts (Evidence Regulations) Order, GN No.22/1964
The rules of customary law which apply in the District need not be proved unless a
party wishes to prove them, or unless the court in any particular case, requires a
party to prove a rule on which that party bases his case.
4.2.3 Interpretation and General Clauses Act, No.30/1972
Customary law is capable of growth, so long as the new rules/customs are
recognized by the people concerned as having a force of law, and so long as those
rules are not against any statutory law.
4.2.4 JALA, Cap.453-Enjoins Primary Courts to apply statutory law prevailing in
the area.
However, an amendment vide S. 3A of the JALA, Cap.453, made the LMA
superior to any rule of Islamic or customary law.
“Yet, despite the overwhelming justification to ignore certain customs which are
unjust and obsolete, the statutory provisions require the courts to apply customary
law where it is applicable, and is not inconsistent with any written law”
Page 10 of 49
Prof. Rwezaura, B.A. “The Reflections on the Relationship between State Law and
Customary Law in Contemporary Tanzania”. Vol.2, Tanzania Law Reform
Bulletin, 1988, p.14
“I feel it is high time that customary law should stop being regarded, in certain
quarters, as an inferior system. There is no doubt that there has been a
considerable improvement on the part of the government in their attitude towards
customary law. But I am afraid that the superiority of English law attitude still
persists strongly amongst the judiciary, and especially judges of the superior
courts.” Cotran, E. “The Place and Future of Customary Law in E. Africa.” E.A
Law Today, London, 1966. P.89-90
4.2.5 Cases:
Majid Ramadhani Kijuu vs. Athumani Ibrahim, PH (HC), Civil Application
No.65/1985, Dodoma, Unreported- Chiku Linda vs. Adam Omari PC (HC) Civil
Appeal No.34/1991, Unreported.- Children born in wedlock belong to the husband
(para.175); Children born in an adulterous relationship do not.

“The purpose of para.175 is to preserve the sanctity and dignity of marriage. It

cannot recognise adultery, a trespass to marriage as taking precedence over and
ousting the husband’s rights” Lugakingira, J in Amina Bakari vs. Ramadhani
Rajabu (1994) TLR 41. Also see:

-Mnyajila Lumolwa vs. Mundo Sajilo PC (HC) Civil Application No.2/1991

-Richard Mapesa vs. Rashidi Bwana (1978) LRT n.4
-Mungasio Munchari vs. Moseti Moremo (1978) LRT n.6
-Mahego Zengo vs. Holo Kadaso (1982) TLR 94

Page 11 of 49
4.3 VALIDITY OF MARRIAGES
4.3.1 Essential requirements and formalities regarding ceremonies. [Ss.9, 10, 13,
14, 16, 38-41, 96-98]
4.3.2 Cases
-Ramadhani Saidi vs. Mohamed Kilu (1983) TLR 309- -Ramadhani Ramadhani
vs. Sungi Andalu (1984) TLR 158-The
-Hasumati Chhaganlal vs. Bashirhussein Gulamali (1983) TLR 320-
-Re: An Application by Barbara Simpson Howison (1959) E.A 588- 5.0

VOID AND VOIDABLE MARRIAGES

What is the difference between a void and voidable marriage?
LMA Ss.38-40
Kenya Cap. 152
Uganda Cap. 215 They largely follow English practice and therefore, the
grounds for nullification are the same as those obtaining in England, with sme
slight modifications.
Cases
(i) De Renville vs. De Renville (1948) 1 All E.R 56
(ii) R vs. Algar (1953) 2 All E.R 1381
(iii) Wiggins vs. Wiggins (1958)2 All E.R 553
(iv) Dodworth vs. Dale (1936) 2 K.B 503
(v) Harthan vs. Harthan (1948) 2 All E.R 639

Page 12 of 49
  A marriage will be declared void on any of the following grounds:
5.1 S.38(c) LMA- Existing marriage
There can be no valid marriage where there is an existing marriage.
Cases
-Festina Kibuta vs. Kibaya Ngajimba (supra)
-Kassim vs. Kassim (1962) 3 All E.R 426
-King vs. King (1963) 3 All E.R 33
-Basiliza Nyimbo vs. Henry Simon Nyimbo (1986) TLR 93.
Cases
: Chard vs. Chard (1955) 3 All E.R 721/ [1956] WLR 954.-
5.2 Lack of Consent (S.13 (2) LMA
Courts may, for sufficient reasons give consent to the parties who are under-age, to
go through a ceremony of marriage. Where the parties to the marriage are under
age and have had no consent, same shall be void.
See: Hasumati Chhaganlal (supra)
- Application by Barbara Simpson( supra)
5.3 Prohibited degree-LMA S.14
-Where the intended couples are within the prohibited degree of relationship
-Ross-Smith vs. Ross-Smith (1962)1 All E.R 344
5.4 Where consent was not voluntarily obtained.S.16 LMA
A marriage will be void if the consent was obtained by:
-Coercion or fraud, -Mistake as to the nature of ceremony, -mental illness
Cases:
-Bashford vs. Tuli (1971) HCD n.76- -Amina Bakari vs. Ramadhani Rajabu
(supra)
-Parajeic vs. Parajeic (1959) 1 All E.R 1
Page 13 of 49
-Hussein vs. Hussein (1938) 2 All E.R
-Re Park (1954) 2 All E.R 1411
-Buckland vs. Buckland (1967) 2 All E.R 300
-Szetcher vs. Szetcher (1971) 2 W.L.R 170
-Singh vs. Singh (1971) 2 W.L.R 963
-Mehta vs. Mehta (1945) 2 All E.R 690
Reading:
-Woodhouse, J.T. Lack of Consent as a Ground for Nullification. 3(3)
International and Comparative Law Quarterly, 1954, pp.454-465
-Manchester, A.H. The Case of a Reluctant Bridegroom. 29(6) Modern Law
Review, 1966, pp.622-634
5.5 Absence from the ceremony of marriage-
Except where the wedding takes place in the presence of a party’s witnesses before
whom consent was given, the ceremony would otherwise be void.
5.6 Limited time marriage.
-The law does not provide for a marriage for a limited time, although Islamic law
has provision for that.
5.7 Grounds for nullification
5.7.1 Non-consummation/ willful refusal to have sexual intercourse.
Where a spouse, for any reason, wilfully refuses to consummate(participate in
sexual intercourse with the other), the affected party, if he/she so wishes, can
remain in marriage, and the marriage remains a valid marriage until one of the
spouses decides to go to court and have it annulled.
(ii) C vs. C (1938) E.A.C.A 75
(iii) P vs. P (1964) 3 All E.R 919
(iv) S vs. S (1954) 3 All E.R 736
Page 14 of 49
(v) Baxter vs. Baxter (1947) 2 All E.R 886
(vi) White vs. White (1948) 2 All E.R 151
(vii) K vs. K (1960) E.A 717
5.7.2 Veneral Disease
Infection of a venereal disease would be evidence of infidelity, if the disease is
contracted from outside.
5.7.3 Pregnancy by a Third Party
i) W vs. W (1963) 2 All E.R 841
ii) Stocker vs. Stocker (1966) 2 All E.R 147
iii) Jackson vs. Jackson (1939) 1 AllE.R71
iv) Smith vs. Smith (1947) 2 All E.R 741
Reading:
-Brownlie, A.R. Blood and the Blood Groups. A Developing Field for Expert
Evidence. 5(3) Journal of the Scientific Society, 1965, 124-174
5.7.4 Parties of the same sex
-Whether those who change sex acquire a new sexual status?
Corbett vs. Corbett (1971) 2 All E.R 33
Reading:
Rwezaura, B.A. (1984). The Legal Status of a Woman to Woman Marriage. 7(3)
EALR, 1985
Rwezaura, B.A. (1985) Traditional Family Law and Change in Tanzania.

6.0 INCIDENCES OF MARRIAGE: FACTORS AFFECTING THE

VALIDITY OF MARRIAGE

Page 15 of 49
Islamic Law regards certain marriages as voidable. The main grounds include
change of religion, impotence, in some cases, contagious diseases like leprosy,
syphilis etc.

6.1 Statutory Sources. Ss. 41-LMA

Matters not affecting the validity of Marriage. S.41 LMA
-Non-payment of dowry-Ramadhani Saidi vs. Mohamed Kilu (supra)
-Failure to give notice of intention to marry,-Notice of objection not being
discharged, -Officiating when not entitled to do so.
6.2 Presumption of Marriage; S.160 LMA
6.2.1 Where it is proved that a man and a woman have lived together for two years
and above in such circumstances as to have acquired the status of husband
and wife, there shall be a presumption they were duly married.
6.2.2 Where the presumption has been rebutted, the wife shall have the right to
sue for maintenance of herself and the children
-Loijuruti vs. Ndiinga (1971) HCD n.331- -Fatuma Amani vs. Rashid
Athumani (1967) HCD n.173
-Hoka Mbofu vs. Pastory Mwijage (1983) TLR 286- -Ahmed Ismail vs.
Juma Rajabu (1985) TLR 204.- -Zaina Ismail vs. Saidi Mkondo (1985)
TLR 239- -Harubushi Seif vs. Amina Rajabu (1986) TLR –-John Kirakwe
vs. Iddi Siko (1989) TLR 215-
HOWEVER, In Francis Leo vs. Paschal Simon Maganga (1978) LRT
n.22- Held: Being married means going through a ceremony of marriage
without which the presumption will be rebutted. The children born of the
union will be illegitimate.
Page 16 of 49
 Compare this to Ramadhani Said vs. Mohamed Kilu (supra), in which it
was held that the absence of “shangwe za arusi” did not affect the validity of
marriage”

7.0 INCIDENCES OF MARRIAGE IN RELATION TO:

7.1 In Contract. Ss. 56 & 58 LMA
The rights and liabilities of married women and separate property of
husband and wife.
S.56-A married woman has the same rights to acquire, own and dispose of
property, and she can sue in her own right and she can be sued as well.
S.57-If he has more than one wife, they shall enjoy the same rights.
S.58-None has the right to alienate any matrimonial property in any way
without the consent of the other.
Cases:
i) Balfour vs. Balfour (1919) 2 KB 571-
ii) Abdallah Shamte vs. Mussa (1972) HCD n.9-
iii) Ayoub vs. Ayoub (1967) E.A 416-
7.2 Torts: LMA Ss.65 & 66 and Evidence Act, S.131
Neither spouse shall be liable for the torts committed by the other.
S.131-Husband and wife shall be competent and compellable witnesses in
cases involving their spouses.
Cases

Page 17 of 49
 (i) Rex vs. Amkeyo (1917-1918) E.A.P.L.R 4-Hamilton, J- Who is a
wife? Africans do not marry. They only purchase the women
whenever they wish.
Also see: R vs. Acholla, R vs. Maugi vs. Rex (1957) 23 E.A.C.A 609,
But: Rex vs. Ouma Acholla (1915) ULR 152-When interpreting customary
marriages, regard must be had to the local circumstances.
Also see: Mifumi (U) Ltd & 12 Others vs. A.G (U) & Kenneth Kakuru,
Constitutional Appeal No.02 of 2014(USC)
(ii) R vs. Siwajibu Kibaya (1989) TLR 12- (iii) Alli Abdallah vs. Saada
Abdallah & Ors (1994) TLR 132-
7.3 Criminal Law. Penal Code Ss.20 & 387(2)
A spouse who is compelled by the other is compellable witness but is not
guilty. Spouses cannot commit conspiracy, or accessory after the fact (s.387
(2))
Cases
(i) Laila Jhina Mawji & Anor vs. R (1957) AC 126-
Alai vs. Uganda (1967) E.A 596- R vs. Algar (1953) 2 All E.R 138-
7.4 Nationality
Generally a country has its own laws governing citizenship. In Tanzania,
marriage does not confer automatic citizenship rights on a spouse, but
confers upon such a souse, the right to apply for citizenship.
Tanzania Citizenship Act, Cap.357.
S.11 (2)-A married woman who is a non-citizen, during the subsistence of
the marriage, may apply for citizenship.

8. DUTY TO CO-HABIT
Page 18 of 49
 8.1 Consortium
In law, consortium means the right of association and companionship between
spouses. While spouses are enjoined to enjoy the consortium of each other, there
can be no order to compel co-habitation. Neither can the court order wife to leave
husband.
Cases
(i) Mwaifunda Mtanya vs. Tumnyisigwe Mbukwa (1982) TLR 260-
(ii) Rosemary Johnson vs. Alexander Johnson (1960) E.A 607-Where
conjugal rights are denied without reason, you petition for R.C.R.
(iii) Kremezi vs. Ridgway (1949) 1 All E.R 662-
(iv) Place vs. Searle (1932(1932) 2 K.B 497-Suing for enticement for a
spouse to leave her husband.
8.2 Interference with the Right to Consortium: LMA Ss. 72 & 73: The
right to damages for adultery and for enticement.(S.73)
(i) Rubimba Kambuga vs. Paulo Lugaijamu. (1972)HCD n.19-
(ii) Mananga vs. Kigusi (1972) HCD n.17-(Magunda vs. Komea per
HCD)-
(ii) Gai Ipenzule vs. Sumi Magoye (1983) TLR 289-
Also see: Jane Gilbert Uriyo vs. Gilbert Uriyo (1982) TLR 355-
(ii) Jumanne Jingi vs. Njoka Kiduda (1984)TLR- R vs. Ally Said
Kiubatyo (1990) TLR 137- used was found guilty of manslaughter
only.
(iii) Zacharia Lugendo vs. Shadrack Lumilang’ombe (1987) TLR 31-
(iv) Richard Venance Tarimo vs. R (1993) TLR 142-
8.3 Residence in Matrimonial Home. S.59 LMA

Page 19 of 49
 Under s.59(1), where any estate or interest in the matrimonial home is
owned by the husband or the wife, he or she shall not, while the marriage
subsists, and without the consent of the other spouse, alienate it by way of
sale, lease, mortgage, or otherwise, and the other shall be deemed to have
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 the land or of deeds.
59(2)-Where any person alienates his or her interest in the matrimonial home
in contravention of sub-section (1), the interest so created or transferred shall
be subject to the right of the interests of the spouse to continue to reside in
the matrimonial home until:
-the marriage is dissolved
-or as may be ordered by the court on a decree of separation.
-Generally, the law does not require spouses to stay under the same roof. For
some reasons, mainly those of employment, the parties may stay apart
Cases
(i) Mallinson vs. Mallinson (1961) E.A 185-
(ii) Morgan vs. Morgan (1959) 1 All E.R 539-
8.4 Jactation of Marriage
It is when one boasts of, or gives out that he or she is married to the other,
whereas the truth is that it is a false presentation. It is an archaic cause of
action where the wronged party could obtain an order restraining further
repetition of the falsehood. Latey on Divorce, 14th Edn. pp.216ff.
The cause of action has since been abolished.
8.5 The Right of the Wife to use her husband’s name

Page 20 of 49
S.64 (1)-Wife is presumed, unless the contrary is proved, to have authority to
pledge her husband’s credit, or to borrow money in his name or to use any of
his money which in her possession or under her control, or convert his
movable property into money, and use the same, so far as such credit or
money is required for the purchase of the necessaries for herself and the
infant children of the marriage, appropriate to the husband’s means and way
of life.
64(2)-Such authority shall be presumed where:-
(a) The parties are living together, or
(b) Where the husband and wife are separated under an agreement under
an agreement which provides for the payment by the husband to the
wife and the husband has failed to do so.
(c) Where the husband has deserted his wife or by his conduct, has
compelled her to leave him.
Cases:
i) Nanyuki General Stores vs. Mrs. Paterson (1954) 15 E.A.C.A 28
ii) Lord Edward Harvey Hawke vs. Elizabeth Augusta Corri (Calling
herself Lady Hawke)(1820) 2 Hag. Con 280, 161 E.R 743-
For the protection of persons against the extreme inconvenience of unjust
claims and pretensions to a marriage which has no existence whatsoever. If a
person pretends such a marriage, and proclaims it to others, the law considers
it as a malicious act, subjecting the party against whom it is set up, to various
disadvantages of fortune and reputation, and imposing upon the public, an
untrue character; interfering in many possible consequences with the good
order of society, as well as the rights of those entitled to its protection.
Readings
Page 21 of 49
 i). Latey, W. Latey on Divorce. The Law and Practice in Divorce and
Matrimonial Causes. Sweet & Maxwell, London, 1952.
ii) Jackson, J, Turner, C.F & Booth, M (Eds) Rayden’s Law and Practice
in Divorce and Family Matters, 12th Edn. 1974
8.6 Legitimacy of the Issues of Marriage
Before the coming into operation of the Law of the Child Act in Tanzania,
Cap.13 of the Laws, the LMA did not define a child was, and discriminated
between the children born in wedlock, who were regarded as “legitimate” as
against those who were born out of wedlock, who were regarded as
“illegitimate”. The so-called illegitimate children did not have the right to
inherit from their fathers. Their association with their father ended upon the
death of the said father.
Cases:
i) Violet Ishengoma Kahangwa vs. Mrs. Eudokia Kahangwa & Anor.
(1990) TLR 72-
ii) In Re Harrington (1908) Ch.687
 However, the Law of the Child Act, Cap.13 R.E 2019, not only did it
define a child, but it abolished any discrimination between the children,
those born within and those born without wedlock. Any other law that
defined a child in contravention of the Law of the Child Act, the definition
would be void.
iii) MMN (A Child) vs. R, Criminal Appeal No.173 of 2019[THC97(25 th
February, 2020]-
No child below the age of 18 may be sentenced to imprisonment.
Reading

Page 22 of 49
Lasok, D. Legitimation, Recognition and Affiliation Proceedings: A Study of
Comparative Law and Legal Reform. 10(1) International and Comparative
Law Quarterly, Jan.1961, pp.123-140
8.7 Incidence of Marriage under Customary Law.
Does the fiction of unity of spouses apply under Customary law, where
marriage was a union of two families. In most societies, however, marriages
were held as follows
 Marriage creates an alliance between affinal relatives and an obligation
of mutual assistance in times of need.
 Marriage creates a mutual duty for the spouses to co-habit and to render
to each other assistance at all times.
 As head of the household, the husband was to be respected and consulted
by the wife on all major domestic decisions.
Case:
(i) Paulo Ifunya vs. Edward Zakayo (1970) HCD n.19
8.8 Under Islamic law
“Nikahi” (marriage) imposes an obligation on the husband to
maintain his wife by providing all the necessaries of life, such as food,
shelter, clothing, etc, while “Nashiza”, imposes a duty on the spouses
to co-habit and give consortium to each other. A wife who deserts her
husband forfeits the right to maintenance
(i) Nanyanje vs. Mwanaarafa d/o Mwenyimanzi (1967) HCD n.42.-
Sabini Duka vs. Amani Huruma(1969) HCD n.290-

9.0 PROPERTY RELATIONS BETWEEN SPOUSES.

Page 23 of 49
 9.1 Under the English Common law, the husband is obliged to
provide all the necessaries of life. The enactment of the Married
Women’s Property Act in 1882, greatly modified the property rights of
spouses during marriage in England, and this was later applied in East
Africa. These changes altered the old image of the husband as the sole
provider to the family.
Marriage does not operate to affect existing or future ownership rights
in property.
9.2 The Duty to Maintain: Ss. 56-62 LMA
-Rights and liabilities of married women (s.56)
-Equality between wives in polygamous marriages (s.57)
-Separate property between husband and wife (s.58)
-Presumption as to matrimonial home (s.59)
-Presumption as to property acquired during marriage (s.60)
-Gifts as between husband and wife (s.61)
-Antecedents to the debts incurred before marriage (s.62)
Cases:
(i) I vs. I (1971) E.A 278-
(ii) Steward vs. Steward (1947) 2 All E.R 813-
(iii) National Provincial Bank vs. Ainsworth (1965) 2 All E.R 472-
Ferris vs. Weaver (1952) 2 All E.R. 233-
9.3 Enforcement of Wife’s Right to maintenance
Cases:
(i) Jerome Chilumba vs. Amina Adamu (1989) TLR 117-
(ii) Ramadhani Omari vs. Fatuma Mahumbi (1983) TLR 227-

Page 24 of 49
(iii) Salum Athumani vs. Mwamini Hamisi (1983) TLR 87- 9.4 Division of
Matrimonial Properties. S.114 LMA
Factors to consider:
 Customs of the community
 Contribution of the spouse to the property
 Needs of the parties
 Debts, if incurred for the benefit of the family.

Cases:
(i) Bi. Hawa Mohamed vs. Ally Sefu (1988) TLR 32-
Prior to the decision in Bi. Hawa Mohamed (supra), the term “joint-efforts” did not
include domestic services rendered by the wife. Contribution was regarded in
monetary terms.
(ii) Himid Amir vs. Maimuna Amir (1977) LRT n.55.
(iii) Iddi Kunganga vs. Ali Mpate (1967) HCD n.49.
(iv) Nyangi Ghati vs. Chacha Mwita (1981) TLR 293Christtian
Lugemalira vs. Helena Kolwe (1982) TLR 146
(v) -Roberto Aranjo vs. Zena Mwinjuma (1986) TLR 207- Mohamed
Abdallah vs. Halima Lisangwe (1988) TLR 197-
(vi) Omari Chikamba vs. Fatuma Malunga (1989) TLR 39.
(vii) Salum Wendo vs. Tausi Wendo & Anor, Matr. Civil Case No.8 of 1987,
Dar Registry, Unreported.

Page 25 of 49
 (viii) Bibie Mauridi vs. Mohamed Ibrahim (1989) TLR 162- Once the
Conciliation Board has issued a Certificate that it had failed to reconcile
the parties and a “talak” had been given, that is evidence of
irreparability.
With regard to division of matrimonial properties, there must be
evidence of the extent of contribution.
Performance of domestic duties amounts to contribution, although not
necessarily at 50%.
ix) Dr. C. Mhina vs. Natalie Mhina (1984) TLR 144- An interim order for
custody should only be given upon hearing both parties.

10. MATRIMONIAL LITIGATION

S. 99-The right to petition for divorce or separation
S.108-Duty of the court when hearing and determining a petition for divorce.
Otto-Khan Freund & Wedderburn, K.W. Editorial Foreword to
Eekeler’s Family Security and Family Breakdown” in Cretney’s Principles
of Family Law, 33 MLR, P.534
10.1 Separation
S.99-Subject to the provisions of sections 77, 100 and 101, a person may petition
for separation or divorce on the grounds that his/her marriage has broken down,
but no decree for divorce shall be granted unless the court is satisfied that the
breakdown is irreparable
S.77 (2)-The petitioner must be resident in Tanzania for one year.
S.100-No person shall petition for divorce before the expiry of two years, unless it
can be shown that the petitioner is suffering exceptional hardships.
Page 26 of 49
  The application may be made to the court under this section either before or
after reference to the Marriage Conciliation Board.
Co-habitation is one of the incidences of marriage. The law requires therefore that
spouses can only be permitted to separate if there exists good cause. Separation,
while leaving the marriage bond intact, it enables the parties to cool down their
tempers and prepare them to resume co-habitation after successful conciliation.
Sometimes, such conciliation fails, thereby leading to long periods of separation
and subsequently to divorce.
 Why Separation?
The principle under the LMA is to preserve marriage. Circumstances may arise
which require which require that the parties live apart, without severing the
marriage bond. Separation allows the tempers to cool down and a rethinking of the
position. Conciliation efforts may be going on to prepare the spouses to resume co-
habitation. But sometimes such efforts fail, leading to prolonged separation and
subsequently to eventual divorce.
10.2 Types of separation.
There are two types of separation.
i) Voluntary Separation-A private arrangement between spouses and it does
not require the intervention of the law courts.
ii) Judicial Separation-Is available to a person who can establish that the
marriage is on the brink of breaking down.
10.3 Terms of a voluntary separation
The terms of a voluntary separation are expected to be reasonable, and where there
are children, their welfare should be taken into account. Where such are missing,
the court is enjoined, under ss.134-137, to intervene and impose its own terms.
10.3.1Non-Molestation Clause.
Page 27 of 49
Each party should be free. Once the parties are in separation, each is supposed to
be free, and the other is not supposed to cross-check on the other party and pry into
that party’s private life.
Cases:
i) Dourado vs. Dourado (1970) HCD n.316.-
ii) Silverton vs. Silverton (1953) 1 All E.R 556-
iii) Corton vs. Corton (1962)3 All E.R 1025-Non-cohabitation clause may
be inserted where the court is satisfied that:
-It is necessary for the protection of the complainant
-Where the case is extraordinarily serious
-Where there is reasonable expectation of reconciliation.
10.3.2 Dum Casta Clause-A Separated wife (spouse) must remain chaste as
a condition for continued maintenance.
Reading:
Forster, H.H & Freed, D.J. Alimony: Dum Casta and Smart Women. 1(1)
Family Law Review, 1978.pp.28ff.
10.3.3 Custody, Maintenance, Variation and Discharge
 All separation agreements must contain a provision on maintenance. Where
the agreement does not contain this provision, the Court will insert it.
 There is no statutory limit on the period of separation. However, during
separation, the economic situation of the parties may change, rendering it
impossible for the party with the responsibility to provide maintenance to do
so, or the party to whom maintenance was provided to have improved in her
income status. The parties on their own, or either of them, may apply for
variation. Other unforeseen events which include the resumption of co-

Page 28 of 49
 habitation, breach of the terms of the agreement or dissolution of the
marriage will discharge the agreement.
Cases
i) Carnie vs. Carnie (1966) E.A 233-
ii) Ernest Uchai vs. Eunice Elikana (1969) HCD n.2-
iii) Rex vs. The Middlesex Justices(1932) 2 KB 1
iv) In Re Wakeman (1947) 2 Ch.607
v) Hunting vs. Hunting (1970) 1 All E.R 616-
10.3.4 Effect of a Separation Agreement [S. 111 LMA]
A separation agreement if recorded, relieves the parties of the duty to co-habit,
to offer to each other services of husband and wife, companionship and
provides a complete defence in allegations of desertion by a petitioner. The wife
is considered, during this period, as a “femme-sole”, as if she were unmarried.
But separation does not dissolve their marital status.
10.3.5 Separation Under Islamic and Customary Laws
Under customary law, there is no distinction between separation and divorce,
but traditionally, it was separation, not divorce that was recognized. The
husband could call the wife back, and she was obliged to come.
Under Islamic law, on the other hand, there is no provision for separation. But
this is not entirely true-cf. “Talaka rejea”- idd’at- to facilitate reconciliation.

PART FIVE
11.0 DISSOLUTION OF MARRIAGE
11.1 Law governing divorce
The general law governing divorce is derived from the English family law.
Prior to the enactment of the LMA, divorce was based on the English law
Page 29 of 49
 doctrine of “matrimonial offence”. Now, divorce is based on the principle of
“break-down of marriage”
Marriage will be come if any of the following occurs:
i) Upon the death of a spouse. Death automatically brings to end the
relationship between the spouses.
ii) Upon the court issuing a decree of divorce under ss.99 & 108 LMA.
iii) Under the presumption of death, s.161: A spouse will be presumed to be
dead if not heard from by those who should have heard from him for five
years. After that, the spouse must prove the facts and the court will issue
a decree to that effect. This applies to monogamous marriages only.

11.2 Grounds for Divorce

i) Desertion
Courts have not defined desertion. However, generally, desertion means
cessation of co-habitation brought by the default of a deserting spouse. It
involves actual separation (factum descerendi) and the desire not to return
(animus descerendi)
Also called matrimonial abandonment, it means one spouse leaving the
marriage without communicating with the other and without intent to return. Is
leaving the matrimonial home essential? Disagreement about a place for a
matrimonial home? Desertion may be actual or constructive.
Cases
(i) Pardy vs. Pardy (1939) 3 All E.R 779-
(ii) Patel vs. Patel (19650 E.A 560-
(iii) Dunn vs. Dunn (1948) 2 All E.R 288-
Page 30 of 49
 (iv) Walker vs. Walker (1952) 2 All E.R 288-
(v) Also : Smith vs. Smith (1939) 4 All E.R 533
(vi) Ramadhani Ramadhani vs. Sungi Andalu (1984) TLR 158-.
(vii) Mariam Tumbo vs. Harold Tumbo (1983) TLR 293-
(viii) Abdallah Hamid Mohamed vs. Jasnena Zaludova (1983) TLR 314-
11.2.2 Mutual Desertion
Parties may, even though not separated or divorced, live apart without good
cause.
Case:
(i) Mallinson vs. Mallinson(supra)

11.2.3 Duration
Desertion is a continuous situation which exists independently of its duration.
Desertion may come to an end by resumption of co-habitation.
i) Abercrombie vs. Abercrombie (1943) 2 All E.R 465-
ii) Pizey vs. Pizey (1961) 2 All E.R 658-
11.2.4 Offer to return (Removal of animus descerendi)
(i) Pratt vs. Pratt (1943) A.C 417-The kiss and make up clause-
(ii) Markham, F.D vs. Markham, G.N(1946) 2 All E.R 737
Reading:
-Michaels, N.E. Kiss and Make Up Clause. 28 (1) Modern Law Review, Jan.
1965, pp.101-104.
-Irvine, A.A.M. The Offer to Resume Co-habitation. 29(3) Modern Law
Review, May, 1966, pp.331-334.
11.2.5 Order for Judicial Separation.
Page 31 of 49
 11.2.6. Institution of a Petition for Divorce: Procedures and Effects.
-LMA S.99-112
-Matrimonial Proceedings Rules, GN N. 136 of 1971, as amended by GN No.
246 of 1997.
Cohen vs. Cohen (1940) A.C 631-
11.2.7 Petitioner’s insanity (lack of animus)-
Wickens vs. Wickens (1952) 2 Al E.R 98
11.2.8 Good Cause for Supervening Event
Richards vs. Richards (1952) 1 All ER 1384-
11.3 Defences
11.3.1 Mistaken, but honest Belief in Spouse’s Misconduct
-Glenister vs. Glenister (1945) 1 All E.R 513-
11.3.2 Adultery
 What is Adultery?
“Adultery is a voluntary sexual intercourse between a married person and
another person who is not his/her spouse.” Duhaime’s Law Dictionary.
“Voluntary sexual intercourse between a married person and someone other
than the person’s spouse”. Black’s Law Dictionary. p.56
-Dennis vs. Dennis & 3 Others (Spillet)(1955) 2 All E.R 51-
-Mathai vs. Mathai (1980) KLR 154 – It was held therein that proof in
adultery was “beyond reasonable doubt”
 How do you prove adultery? Burden and Standard of Proof.
 Rayden’s Practice and Law on Divorce, 10th Edn.
-Jane Gilbert Urio vs. Gilbert Urio (supra)-
-Gai Ipenzule vs. Sunni Magoye (1983) TLR 289-
-Kamweru vs. Kamweru (2003) 2 E.A 484-
Page 32 of 49
-Blyth vs. Blyth (1966) 1 All E.R 701-
-Bastable vs. Bastable & another (1968) 3 All E.R 701-
11.3.3 Co-habitation with a Third Party
Christine d/o Hamisi vs. Omari Ntalala (1963) E.A 463- Supposing the earlier
marriage was Islamic?
-Rubimba Kambuga vs. Paulo Lugaijamu (supra)-
11.3.4 Birth of a Child out of Wedlock
-Preston-Jones vs. Preston-Jones (1951) 1 All E.R 124-
 How do you get this proof “beyond reasonable doubt?”
11.3.5 Veneral Disease
When a spouse infects the other with a sexually transmitted disease, then the
presumption is that the infecting party got the infection in an extra-marital affair.
-Kamweru vs. Kamweru (supra)-
11.3.6 Confession
-R vs. Manyakutama (1948) E.A.C.A 95
11.3.7 Spending a Night in a Hotel.
-Raspin vs. Raspin (1952) 2 All E.R 349-
11.4 Defences
(i) Rape
-Redpath vs. Redpath & Milligan (1950) 1 All E.R 600-
(ii) Respondent’s Incapacity
Dennis vs. Dennis & another (Spillet) (supra)-
-Nguza Mbangu @Viking & Others vs. R
(iii) Mistake as to status
-Kambuga vs. Paulo Lugaijamu (supra)
11.5 Cruelty
Page 33 of 49
11.5.1 What is cruelty?
-Tolstoy, L. “The Law and Practice of Divorce and Matrimonial Causes”. 5th Edn,
p.60,
-Said Mohamed vs. Zena Ally (1985) TLR 13.-
-Russell vs. Russell (1897) A.C. 395-
-Charles Aoko vs. Dorina Gimonga (1988) TLR 44-
-Julia Mazengo vs. Jackson Leganga (1986) TLR 244-
-Jameison vs. Jameison (1952) 1 All E.R 875-
-Gollins vs. Gollins (1963) 2 All E.R 966-
-Williams vs. Williams (1963) 2 All E.R 994-

11.5.2 Types of Cruelty

i)-Nagging-Consistently annoying or finding fault with someone, tormenting,
pestering, scolding, fussing, bothering and berating.
-King vs. King (1953) 2 All E.R 595-
11.5.3 Intention to be Cruel
-Lauder vs. Lauder (1949) 1 All E.R 76-
-Mariam Tumbo vs. Harold Tumbo (supra)
11.5.4. Insanity
-Williams vs. Williams (1963) 2 All E.R 994-
-Waters vs. Waters (1956) 1 All E.R 432-
11.5.5 Venereal Disease
11.5.6 Sexual Malpractice-Coitus-Interuptus
-Walsham vs. Walsham (1949)1 All E.R. 774-
-Cackett vs. Cackett (1950) 1 All E.R 677-
Page 34 of 49
11.5.7 Philandering/Unnatural Offences-Buggery (Bestiality), Sodomy,
Lesbianism.
-Crawford vs. Crawford (1955) 3 All E.R 592-
-Gardner vs. Gardner (1947) 1 All E.R 630
-Mwanhamisi Abdallah @ Hamisi vs. R (1983) TLR 265-
11.5.8 Cruelty to Children
-Cooper vs. Cooper (1954) 3 All E.R 446-
11.5.9 Habitual Misbehaviour: Excessive Drinking, Gambling, Willful
Neglect.
-Margareth Colbeck vs. Noel Colbeck (1961) E.A 431-

11.5.10 Provocation, Consent

-Ahmed Ally Maundu vs. R (1994) TLR 200-
-Lawson vs. Lawson (1955) 1 All E.R 34-
-Bampton vs. Bampton (1959) 2 All E.R 766-
11.5.11 Evidence of Judicial Separation and Standard of Proof.
-Marjoram vs. Marjoram (1955) 2 All E.R 17
-Gollins vs. Gollins (supra)
11.5.12 Acquiescence by Petitioner (Condonation
-Meacher vs. Meacher (1946) 2 All E.R 307-
-Miriam Tumbo vs. Harold Tumbo (supra)-

12.0 DISSOLUTION OF MARRIAGE IN TANZANIA

 The Principle of “irreparability” as opposed to the “matrimonial offence”
principle. The specific features under the L.M.A.
Page 35 of 49
-Zhinat Khan vs. Abdallah S. Khan, Matrimonial Causes Act No.10 of 1972,
Mwanza, Unreported.-
Section 99: Right to Petition for Divorce
Subject to the provisions of Ss. 77, 100, 101, any married person may petition the
Court for a decree of separation or divorce on the ground that his or her marriage
has broken down , but no decree of divorce shall be granted, unless the Court is
satisfied that the breakdown is “irreparable”.
 Evidence that marriage has broken down irreparably (s.107)
 The breakdown of marriage (s.109)
 The form of Petition (s.106)
 The duty of the Court to inquire
 The nature of the breakdown
 The ordinary “wear and tear” principle.
12.1 Cases
(i)-Salum Athumani vs. Mwamini Hamisi (1983) TLR 107-
(ii)-Athanasi Makungwa vs. Darini Hassan (1983) TLR 132-
(iii)–Shillo Mzee vs. Fatuma Ahmed (1984) TLR 102-
(iv)-John Kahamila vs. Paschal Jonathan & Hilda Hosia (1986) TLR 104-
(v)-Joseph Warioba Butiku vs. Perucy Muganda Butiku (1987) TLR 1.-
Under R.29 (2) of the Matrimonial Proceedings Rules, 1971-A petition is tried
as a suit filed under the CPC.
Under O.XV, Part. I CPC-“Where at the first hearing of the suit it is apparent that
the parties are not at issue on sufficient questions law or of fact, the court may, at
once, pronounce judgment.
(vi)-Charles Aoko vs. Dorina Gimonga (supra)-
(vii)-Halima Athumani vs. Maulid Hamisi (1991 TLR 179-
Page 36 of 49
12.2 Limitation to Divorce under the LMA
12.2.1Marriage Conciliation Boards Ss.101-104
–Shillo Mzee vs. Fatuma Ahmed (1984) TLR 102-.
-Rasiklal Purshotam Gohil vs. Pravina Maganlal Chudasama, Matr. Cause No.1
of 1987, Mwanza, Unreported.-
When can reference to Conciliation be dispensed with?
- Halima Athumani vs. Maulid Hamisi (supra)
-Miriam Tumbo vs. Harold Tumbo (supra)-Circumstances under which the Court
may dispense with reference to the Conciliation Board.
Zhinat Khan vs. Abdallah S. Khan (supra)-A petition may be presented without
passing through Board without first applying to the Magistrate for leave, if the
circumstances make it impracticable. Impracticability under s. 101(f) is not limited
to physical impracticability.
12.2.3. The Two Year Rule; Section 100 LMA
No person shall, without the prior of the court, petition for divorce before the
expiry of two years from the date of the marriage which it is sought to dissolve.
12.2.2Bars to Divorce (Discretionary). Ss.85-88, 107(2) (a) LMA
 Connivance
 Condonation
 Non disclosure
Cases
Res Judicata
-Holland vs. Holland (1961) 1C All E.R 226
-Ernest Uchai vs. Eunice Elikana (1969) HCD n.2
12.3 Customary Law Aspects of Divorce

Page 37 of 49
In Kenya and Uganda, customary law divorce is still extra-judicial. In Tanzania,
however, parties may go to Court for formalization of a customary divorce.
Ss. 43(5) & 44 of the LMA impose a mandatory duty to register a customary
marriage
-Ahmed Ismail vs. Juma Rajabu (1985) TLR 204-
-Makungu Kahindi vs. Luhumbika Nyanda (1983) TLR 63-
-Salum Athumani vs. Mwamini Hamisi (1983) TLR 107-
-Grace Lumenyela vs. Elizabeth Rutakuba (1983) TLR 97-
-Mohamed Ndwata vs. Hamisi Omari (1988) TLR 137-.
12.4 Muslim Law on Divorce
Divorce under Islamic law is generally extra-judicial. A man may divorce his wife
by issuance of a “talaka”- “Talaka Tatu/Talaka Rejea”
12.4 Types of Divorces
12.5 (i) “Talak” (Talaka)
Under Islamic law, a man may marry and divorce, until he gets a suitable
one (zaawi’j utaalik ila uwafikh). When he wants to divorce, the man just
pronounces the “talaka” and he is not normally required to give any reason
for the decision. This must however, not be understood to mean that the
husbands have unrestrained power to “hire” and “fire” their wives. Within
the social structure of the Muslim community, there are in-built mechanisms
which keep Islamic marriages stable.
(ii). Divorce Mubaara’at
This is a form of consent divorce. The parties agree that they shall cease to be
husband and wife.
-Saada Jamal vs. Hassan Swalehe (1970) HCD n.9- -Halima Athumani vs.
Maulidi Hamisi (supra)
Page 38 of 49
(iii). Khula/Khului/Kula Divorce
-Saada Jamali vs. Hassan Swalehe (supra)
-A.M Kimweri vs. Yusuf Athumani (1970) HCD n.119-
-Mwinyikhamisi Kassimu vs. Zainabu Bakari (1985) TLR 217-
(iv). Divorce Faskhi
Seeking for divorce in a court of law.
-Alhaji Salum Mbogoromwa vs. Asumini Ngobesi (1968) HCD n.383-
-Likarambito vs. Namanacho (1970) HCD n.323-
(v). Divorce I’la and izhar
I’la is here the husband swears that he will never have sexual inter-course with his
wife. This oath is followed by four months of non-consummation., the wife may
cause the oath by the husband to be withdrawn by payment of “kaffra’a”. In izhar,
the husband vows that sex with his wife is as prohibited as if she was his own
mother.
V.226-Surat al Baqqarah:
“Those who forswear their wives (by pronouncing “ila”, must wait for four
months; then if they change their minds, Lo! God is Forgiving, Merciful. If they
decide upon divorce, the God is surely Hearing, Knowing.”
(vi). Divorce Tafrikh
A kind of separation which suspends marital duties between the spouses. It may be
ordered by the Kadhi.
-Adam Mtondo vs. Likuna Omari (1968) HCD n.289-
-Mwanamvua vs. Shabani (1971) HCD n.26-
-Zainabu Assi vs. Yusuf (1972) HCD n.127-
-Abdulrahman Salum Msangi vs. Munira Margaret (1984) TLR 133-
-Bibie Mauridi vs. Mohamed Ibrahim (1989) TLR 162-
Page 39 of 49
2.6 Effects of a Muslim Divorce
i) Observation of Idd’at: LMA S.38 (1)
A period of time must be observed where a Muslim marriage ceases to exist either
due to divorce or death of the husband. During this period, the wife may not re-
marry.
 If a woman remarries before the expiry of eddat, the new marriage is
void.
But See: Abdallah Khamis Telekelo vs. Salima d/o Hokelai (1969) HCD n.197-
ii). Loss of Dower (interest in the husband’s estate for life) where “talaka” is
pronounced by the husband.

13. DIVISION OF ASSETS, MAINTENANCE BETWEEN SPOUSES AND

CUSTODY OF CHILDREN
13.1 Under S.106 (1) (f) LMA-parties may make arrangement for maintenance
after divorce.
Contents of a petition for divorce may also include the terms, if any, regarding
maintenance or division of matrimonial assets acquired through the joint-efforts of
the parties, or where no such agreed terms are included, the court may consider the
proposals by the Petitioner
S. 114-Power of the court to order division of matrimonial assets
S.115-Power of the court to order maintenance
S. 116-Assessment of maintenance
S.117-Power to order security for maintenance
S.118-Compunding maintenance
S.119-Duration of orders for maintenance
Page 40 of 49
S.120-Right to maintenance to cease upon re-marriage
S.121-Power to vary orders of maintenance
S.122-Power to vary agreements for maintenance
123-Maintenance to be inalienable
124-Recovery of arrears and enforcement of maintenance orders.
13.2 Jurisdiction of the Courts
-Bakari vs. Mdulu (1971) HCD n.418-
-Fatuma Mohamed vs. Said Chikamba (supra)-
-Suzana Shija vs. Paulinus Kazulunga (1984) TLR 58- 13.3 Joint-Efforts
-Bhoke vs. Mwese (1971) HCD n.184
-Iddi Kungunya vs. Ali Mpate (1967) HCD n.49-
-Abdallah Shamte vs. Mussa (1972) HCD n.9-
-Pulcheria Pundugu vs. Samwel Huma Pundugu (1985) TLR 7-
-Mohamed Abdallah vs. Halima Lisangwe (1984) TLR 58-
-Mariam Tumbo vs. Harold Tumbo (supra)
-Bi. Hawa Mohamed vs. Ally Sefu (supra)
13.4. A Matrimonial Home
What is it? What rights accrue to one spouse against the other?
-National Provincial Bank vs. Ainsworth (1965) 2 All E.R 472-
-Abdallah El Kuneit vs. Abriya (1970) HCD n.263-
-Basset vs. Basset (1975)1 All E.R 513
-Nuru Binti Ahmed vs. Ali Salaam & another (1957) E.A 532)
-Dourado vs. Dourado (supra)

13.5 CUSTODY
Ss. 125-137 LMA
Page 41 of 49
13.5.1What does custody of children mean?
Custody consists of legal custody, which is the right to make decisions about the
child, the physical custody which is the right and duty to house, to provide and care
for the child. Decisions about child custody typically arise in proceedings for
divorce, annulment, separation, adoption or parental death. In most jurisdictions,
child custody is determined in accordance with the “best interests of the child”
standards.[UNHCR Guidelines on Determining the Best Interests of the Child”
UN, May, 2008]
13.5.2When is custody granted?
13.5.3Agreement as to custody
13.5.4When custody may be suspended?
13.5.5The Welfare principle
13.5.6The meaning of reasonable access
S.125-LMA
The Court may order custody basing on the welfare principle, and taking into
account
i) wishes of the parents
ii) wishes of the infant child
iii) customs
S. 127-LMA
Where custody has been granted, on the application of either parent, or of a
relative, issue a declaratory order as to unfitness of having custody.
If the order has been granted, and has remained unrescinded, upon the death of
one parent, the person declared to be unfit cannot be entitled to the custody.
S. 128-LMA
In a void marriage, in the absence of any agreement, custody will go to the mother.
Page 42 of 49
S.132-LMA
An order for custody will not apply to children above the age of 18 years.
S. 134-LMA
The court may vary the agreement in the interest of the child.
The welfare principle does not depend on the financial or well-being of the
applicant.
Cases:
-Makafu Nyamurunda vs. Muga Okanda (1968) HCDn.83-
-Re G.M (An Infant)(1957) E.A 714-
-Ramesh Rajput vs. Mrs. Sunanda Rajput (1988) TLR 96-
-Bi. Ruth Pemba vs. Daudi Mfalingundi (1970) HCD n.105-
-Warioba d/o Katara vs. Kirimi Wangari (1969) HCD n.6-
-Chacha Gikaro vs. Marwa Marono (1968) HCD n.3-.
Questions to ponder:
i) Removing him from the environment to which he was used, including
friends, members of the community etc. and subjecting him to new people
and environment?
ii) The facts as provided, do not indicate whether the Applicant back in Kenya
was married, if he was, how about the “new” family to which he was being
introduced to?
iii) Since the grant of custody does not give ownership, wouldn’t an order to the
contrary suffice?
See: Makende s/o Kisunte (1969) HCD n.5-
-Halima Kahema vs. Jayantilal G. Karia (1987) TLR 147-
-Midiwa vs. Midiwa (2002) 2 E.A 453-
See: Also: Re S (An Infant) (1958) 1 All E.R 783
Page 43 of 49
-Karanu vs. Karanu (1975) 1975) E.A 18
-Mariam Tumbo vs. Harold Tumbo (supra)-
-Re Hofmann (An infant) (1971) HCD n. 409-
-Palmer VS. Palmer & Anor (2007) 1 E.A 317-
-Amina Bakari vs. Ramadhani Rajabu (supra)-
Also: Masuka vs. Sigonjwe (1971) HCD n.92 and Mgowa Madola vs. Mgogolo
Dododo (1973) LRT n.7
13.5.7 Custody under Customary Law
-Maziku vs. Nzunya (1969) HCD n.4-
-Makafu Nyamurunda vs. Muga Okanda (supra)- 13.5.8 Custody under
Islamic Law (Hiza’amit)
-Abdulrahman Salum Msangi vs. Munira Margret (supra)- The mother will only
be given custody if i) she is of sound mind, ii) she is faithful, iii) she has the means
to keep the children, iv) she remains single vi) shee remains free (not a slave), vi)
she should have a religion (Islam) and she must vii) have domicile.
13.5.9 Maintenance of Children
Maintenance- A payment that a non-custodial parent pays/makes a contribution to
the costs of raising her or his child
Cases
-Mrisho vs. Halima (1971) HCD n.256-
-Abdallah Salim vs. Ramadhani Shemdoe (1968) HCD n. 129-
14. LEGITIMACY & LEGITIMATION
L.MA. S.98, JALA 9(3) AND GN. No.279/1963
14.1 The concept of legitimacy: Its origin and its current use.
The background to the study of legitimacy under English law.

Page 44 of 49
 -Preston-Jones vs. Preston-Jones (supra) - a suspect birth of a child must
be tested and proved before the court can reach a conclusion.
-Knowles vs. Knowles (1962)1 All E.R 659
14.2 Legitimacy in East Africa
GN. No.279/1963
S.181 A. A man may legitimize his child born out of wedlock by marrying its
mother
S. 181 B. A man who wishes to legitimize his child, but does not want to marry its
mother, must pay Tshs.100/ before the child is weaned.

-Case
Beatrice Njowoka vs. Evaristus Nambunga (1988) TLR 67- How does the man
prove paternity?-Medical chit, birth card, physical evidence of their friends? Was
DNA technology available?
-Re Barton (1970) 1 E.A 191-An illegitimate child cannot inherit in an intestate
estate.
14.2 When is Legitimation Possible?
S. 181B GN No.279/1963-Before the child is weaned.
 It seems if the child is not legitimized before it is weaned, it will be
illegitimate, if the putative father does not marry its father. Should a child be
condemned for something she is not concerned about?
 Has the law of the Child, an attempted consolidation of all customary best
practices, the common law and international law on the welfare of the

Page 45 of 49
 child(Uganda SC in Palmer vs. Palmer & Anor (2007) 1 E.A 3117- cured
this handicap?
 Obiter: “An illegal court order is a nullity-as good as if there was no such
order”. (Mukula International Ltd vs. His Eminence Cardinal Nsubuga &
Anor (1982) HCB-U, 11.
 However, where the woman mentions a man as a father on her child, she
cannot later on change position.
-Sarah Malogo vs. William Vahaye (1983) TLR 317-
-Halifa vs. Hadija (1971) HCD n.1-
-Birigi vs. Wajamu (1971) HCD n.266- -Mtaki vs. Mirambo (1970) HCD n. 188
-Saidi vs. Msamila (1970) HCD n.288
-Theofrida vs. Kanisius (1971) HCD n.21,
-Kingazi vs. Bandawe (1970) HCD n.311.
14.3 Meaning of a Child Born in/out of Wedlock: The Practice in Customary
Law
Cases:
-Loijurusi vs. Ndiinga (1971) HCD n.331-
Also See: Fatuma Amani vs. Rashidi Athumani (1967) HCDn.173
-Kidanye vs. Kilama (1971) HCD N. 355-The
-Semlongolo vs. Kitinyi (1969) HCD n.185-
-Ng’washi Kamwezi vs. Bunga Kulaba (1969) HCD n.267-
-Shija Maziku vs. Mpemba Mzunya (1969) HCD n.4-
-Violet Kahangwa & Anor vs. Admininistator General & Anor (Supra)-
14.4 Adoption, Guardianship and Awards of the Court.
-Adoption Act, Cap.335

Page 46 of 49
-The of the Child Act, No.21 of 2009-was an “Act to provide for the and
consolidation of the of laws relating to children, to stipulate the rights of the child
and to promote, protect and maintain the welfare of the of a child with a view to
giving effect to international and regional conventions on the rights of the child;
to provide for affiliation, foster care, adoption and custody of the child, to further
regulate employment and apprenticeship; to make provisions with respect to a
child in conflict with law and to provide for related matters.”
-S. 160 repealed the following Acts:
-The Affiliation Act, Cap.
-The Adoption Act, 335
-The Day Care Centers’ Act
-The Children and Young Persons Act, Cap.13
-The Children’s Homes (Regulations) Act.

14.5 What is adoption?

The law does not define what adoption is. As noted, however, the Adoption
Ordinance was repealed and replaced by the Law of the Child Act by s.160. The
amendment notwithstanding, the definition of is what may be said to consist of an
action or fact of legally taking another’s child and bringing it up as one’s own, or
the fact of being adopted.
In Tanzania, however under S.3 (2) of the repealed Adoption Ordinance, the law
did not specifically define what adoption, but it is provided that an application for
adoption may be made on an application of the spouses authorizing them jointly to
adopt an infant, the subject of their application.
See: Re: The Adoption Ordinance: Sharmin Jalalu (An Infant)(1986) TLR 218.

Page 47 of 49
In England, prior to the passing of te Legitimacy Act, 1959, it was difficult for
putative fathers to have custody of their illegitimate children.
Re M (An Infant) (1955) 2 Q.B 479-
Also see: Frank, J. Natural Mothers, Putative Fathers and Innocent Children: The
Definition and Regulation of Parental Relationship Outside Marriage in England.
25 Journal of Family History, 2000, 178.
Inspite of this position, the consistency with which the putative fathers were
bringing these actions, was responded to via the Legitimacy Act, passed in 1959,
which now could grant the same rights to the putative father as well as to the
mother.
See: Freund-Khan, O. The Legitimacy Act, 1959, 20 Modern Law Review, 1960,
56.
Also: Rebecca, P. The Changing Legal Regulation of Co-habitation: From
Fornicators to Family: 1600-2010. Cambridge University Press, 2012

Cases:
-Ex P. Leonard Reed Harrison & Kwigema Samson Gabba (1996) TLR 198-
Re: The Adoption Ordinance: Sharmin Jalalu (An Infant)(supra)-
-Re M (An Infant) (1995) UGSC 16(delivered on 3rd May, 1995)-
-Fox vs. Stirk (1970) 3 All E.R 7, (An Infant)
-In Re: Mary Gimono Mirembe (2009) UGHC 61 (21st May, 2009)-
14.6 Affiliation
-Meaning
-Purpose
-Customary law on the matter
-The conflict of laws
Page 48 of 49
15. RECOGNITION OF FOREIGN DECREES
i) -The Reciprocal Enforcement of Foreign Judgments Act, Cap.8 R.E
2002.(Botswana, Eswatini, Lesotho, Mauritius, New South Wales,
Seychelles, Somalia, Sri Lanka, UK, Zambia and Zimbabwe)
ii) -Judgments Extension Act, Cap.7-(for East African States-Kenya, Uganda,
Zanzibar and Malawi.)
To be effective and meaningful, a court decree must be capable of enforcement, not
only within the court’s jurisdiction, but even outside it.
It is a rule of Private International law that the comity of nations require mutual
Respect of each nation’s institutions, including courts of law. In order to realize
this, there are laws that have been adopted so as to make effective foreign
judgments in local jurisdictions, normally through applying to have the foreign
decree registered for purposes of enforcement, or otherwise. These include decrees
relating to family law.

Prepared and Updated by:

M.J.LUGAZIYA, PhD, Senior Lecturer

Dar es Salaam, January, 2021

Page 49 of 49