CHAPTER ONE:

INTRODUCTION TO FAMILY LAW

You should be familiar with the following areas

  • Meaning Family
  • Classification of family
  • Family law
  • Historical Background of Family law in Tanzania
  • Sources
  • Function of Family Law

1.1 MEANING OF FAMILY

Are the members of a household, including parents and children with perhaps other relations, lodgers and even servants. For lodgers and servants the relationship ma not necessarily be considered as family rather their legal relationship may be considered as contractual. In Fitzpatric v Sterling Housing Association (1999) HL (Unreported) The House of Lords per Lords Slynn, Nicholls and Clyde and Lords Hutton and Hob Disserting held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner now deceased under the Housing Act. Lord Slynn said that, “the legislation could not be interpreted to allow P’s claim on the basis that he had been living” as the husband or the wife” of the deceased…P could claim as “a member of the family” is used in many senses some wider than others and if P could show (as fact he could) the mutual inter-dependence, sharing of lives caring and love, commitment and support that are rebuttable presumed to exist between married couples, that would be enough to establish relationship”

Classification of Family

This may consists of a father, mother and children

This may consist of a father, mother, children and other relatives

This consist of larger family groups related by blood and marriage

 Are the group of people sharing accommodation.

1.2 FAMILY LAW

Is study which deals with creation, legal consequences and protection both physical and formal of the family member. Or is branch of law that deals with matters relating to the family, such as divorce and child custody. Family law is legal practice area that focuses on issues involving family relationships, such as adoption, divorce, and child custody among others. Attorneys practicing family law can represent clients in family court proceedings or in related negations and can also draft important legal documents such as court petitions or property agreements.

According to Black’s Law Dictionary 8th Ed. 2004 defines family law as body of law deal with marriage, divorce, adoption child custody and support of child abuse and neglect, paternity, juvenile and other domestic-relations issues.

1.3 HISTORICAL BACKGROUND OF FAMILY LAW IN TANZANIA

1.3.1 Pre Colonial

Africa families were regulated by customs and traditions. The customs were focused at the family or clan level.

1.3.2 Colonial Period

After the invasion of colonists, some Africans were converted to westerned culture. Some even changed their religious to became Christians. Still, many people remained with their traditional norms and customs, which governed their daily lives and marriage inclusive. It should also be noted that even before colonial invasion, the Arabs had already introduced Arab culture in some coastal areas of Tanzania. In other words, some were following Arab traditions in these areas? At the same time, there were Indians who had their religion and culture. At this point, there were about five groups spawned by the result of these invasions-those following traditional norms, those following western culture those who had received Arabs culture those who had received Christianity and the Hindu. The multiplicities of norms, religion and culture did not end with the introduction of the colonialism in Tanzania. They continued despite the introduction of colonial laws. However, culture and norms were reflected in ways of handling marriage issues. In other words, those who followed European laws had to contract their marriage according to colonial laws. The same thing applied to those who followed Arab culture and Islamic religion. As a result there were many laws governing marriages and divorces at that time.

1.3.3 Independence and Post Independence

At the time of independence, the situation had not changed. Efforts to build national unity demanded among other things a united judicial system. All persons were to be subject to the same laws and same system of courts, notwithstanding their colour, sex etc. It was until ten years after independence that the government of Tanzania tabled a White Paper on marriage and divorce. Similar efforts had been shown in Uganda by the appointment of the Kalema Commission and Kenya, the spry commission. The current Law of marriage Act is to a larger extent a product of these commissions. The Act was meant to accommodate all types of marriages contracted under such multiplicity of laws. It was a uniting law that was required to eradicate the multifunctional laws of that time. The Act is principally divided into four parts, namely formation and nature of marriage, rights and duties created by the marriage, termination of marriage and the rights which arises as soon as the marriage is dissolved.

1.4 SOURCES OF FAMILY LAW

(a) The Constitution of United Republic of Tanzania, 1977 (Cap. 2 as amended from time to time)

Article 16(1) of the Constitution provides for the right to privacy and persona security. This right includes the respect and protection of every persons’s family matrimonial life and residence.

(b) Statutes

The Law of Marriage Act, 1971 Cap.29 R.E 2002, section 163 of the LMA expressly provides that those legislations will no longer be applied especially to matters that are provided for by the LMA. The LMA provides for all the forms of marriages in other words the LMA harmonies all types of marriage.

(c) Case laws

In the case of Mohamed Ndwata v Hamisi Omary [1989] TLR s.3A of JALA. Was cited with approval that “notwithstanding the provisions of this act the rule of customary law and Islamic law shall not apply regard to any matter provided for in the law marriage act 1971. The old laws are superseded in accordance with s.71 of the LMA.

  • Customary Law

Customary marriages are governed by the Judicature and Application of Laws Act (JALA) Cap 358 R.E 2002. Islamic marriages govern by Islamic law especially the Quran

  • International Laws

Article 18(1) (2) of the Charter of People and Human Rights provides that family shall be the natural unit and basis of society. Hence every state that is signatory to the charter is required to protect this unit by taking care of physical health and morals. The state shall also have the duty to assist the family.

1.5 FUNCTION OF FAMILY LAW

  1. Resolution of Disputes

The disputes occur between members of a family example on an event of breakup of marriage differences may occur on matters of residence or upbringing of children or visiting rights and rights to occupy matrimonial home. Family law plays an important role in setting forums for resolving these disputes.

  • Protection of weaker members of society

The family law will provide for protection of weaker members of the society such as children from exploitation both physically and economically. Physical this raises the more urgent problems example the court may be required to give protection to victims of domestic violence, though family law courts will make non-molestation orders or exclusion from living in matrimonial home or make orders for children to be taken care of by outsiders such as NGOs or social service, however this should be a last resort. Economically this assumes importance when family union ceases to exist for example during the death or separation or divorce courts will make orders for financial assistance mostly on the death of bread winner.

  • Property adjustment or division

Where it appears there is need for redistribution of family capital assets especially in the law of interstate succession cases and adjustment of asset during divorce or separation family law plays a great role. Example the case of Bi Hawa Mohamed v Ally Sefu 1983 TLR 32 (CA) where it was held that “since the welfare of the family is an essential component of the economic activities of the 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”. If a person dies interstate, his property will have to be distribute, and the law of interstate succession is essentially a part of family law, this law provides for the division and distribution of a deceased person’s property amongst his heirs”.