Legitimate child

  • A legitimate child is that born in wedlock, according to s 125 of LMA the court may by order after the marriage comes to an end place the child;
  • In the custody of his or her father
    • His or her mother
    • Where there are exceptional circumstances making it undesirable that the infant be entrusted to either parent, of any other relative of the infant
  • Any association the objects of which include child welfare e.g. TULEANE or any other NGO
  • In deciding custody the paramount consideration shall be the welfare of the infant this is known as ‘’the Welfare principle’’ and, subject to this, the court shall have regard to–

The wishes of the parents of the infant;

The wishes of the infant, where he or she is of an age to express an independent opinion; and

The customs of the community to which the parties belong.

  • S 135(3) LMA there is a rebuttable presumption that, it is for the good of an infant below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of the infant by changes of custody.
  • When there is more than one child the welfare of each shall be decided separately.
  • According to s 126 of LMA an order for custody may

Contain conditions as to the place where the infant is to reside,

As to the manner of his or her education

And as to the religion in which he or she is to be brought up

Provide for the infant to be temporarily in the care and control of some person other than the person given custody

Provide for the infant to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the court may consider reasonable

Give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the infant at such times and with such frequency as the court may consider reasonable

Prohibit the person given custody from taking the infant out of Tanzania.

  • The Court may make an order declaring either parent to be a person unfit to have the custody of the infant and may at any time rescind any such order. If such an order is made the parent named unfit will not have custody of the child even after the death of the other parent unless the court orders so. S 127 LMA

This order may be made either when the court is granting an order for separation or divorce or upon application of either of the parents or close relative on the death of one of the parents.

  • The mother shall, in the absence of any agreement or order of court to the contrary, be entitled to the custody of the infant child who is deemed legitimate, if any, of the marriage that is annulled due to the fact that it is voidable s 128 LMA.
  • S 129 of LMA provides that it shall be the duty of a man to maintain his infant children, whether they are in his custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his means and station in life or by paying the cost thereof.

S 129(2) vests a duty to a woman to maintain or contribute to the maintenance of her infant children if their father is dead or his whereabouts are unknown or if and so far as he is unable to maintain them.

S 130 of LMA The court may at any time order a man to pay maintenance for the benefit of his infant child–

  • If he has refused or neglected to adequately provide for him or her;
  • If he has deserted his wife  and the infant is in her charge;
  • During the pendency of any matrimonial proceedings; or
  • When making or subsequent to the making of an order placing the infant in the custody of any other person.
  • The order for custody shall expire on the attainment by the infant of the age of eighteen years. S 132 LMA.

v  Illegitimate child

  • This is the child that is born out of wedlock
  • The affiliation Act was enacted to cover maintenance and custody of illegitimate children as well as their mothers.
  • According to this Act the obligation towards the mother is only during her pregnancy and it ceases after delivery
  • The obligation towards maintaining the child is only 100/- Tshs plus education expenses   s 5 Affiliation Act but case law extend this to 1/3 of the putative father earnings
  • The mother is required to apply to the district court for order of maintanence.
  • Putative father is define under the Act as a man who is declared by the mother to be the father of the illegitimate child (Bastard)