Marriage practices and procedures

• A contract to marry (engagement) Every marriage is preceded by a contract to marry. This is an agreement were parties in explicit words undertake a promise to get married in a near future. This is different from friendship between a man and a woman where there is no explicit of the intention to get married. There must be an unconditional agreement to marry.The proof that engagement took place includes;The presence of evidence in writing.

• The presence of a gift of an engagement ring from one party of the agreement to the other in contemplation of their marriage.
  • Evidence of a ceremony entered by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.
  • At common law such agreements amounted to contracts provided that there was an intention to enter into legal relationship⁶. The position was changed by s 1 of The Law Reform (Miscellaneous Provisions) Act 1970which provided that no agreement to marry shall take effect as a legally enforceable contract and that no action shall lie in this country for breach of such agreement wherever it was made.
  • The breach of contract to marry occurs when one of the parties does not implement what was intended (the marriage). The breach may occur even if the date was not fixed and it was just said that it will happen ‘’in the near future’’ it will be implied that means soon.

In Richard Mugunda v Minzulayimu (1965) the parties married in church, but a dispute arose before the ceremony, the groom insulted the bride’s sister. The bride replied ‘no’ to the priest’s when making vows. The groom sued the father in law for refusing his daughter. He claimed

⁶Ibid Lowe N & Douglas p 43

Tshs 2500 for damages and compensation for food and drinks he prepared. The court held that, both the bride and the groom knew that they had a right to say yes or no in front of the priest.

• There are legal consequences when a contract to marry is breached. A man may have done something geared to that intended objectives and they woman family may have also incurred expenses in preparation for the intended wedding. So in case a promise to marry is broken the victim party is able to claim for those expenses. This is provided by s 69(1) LMA
  • The section specifies that no action will lie against a party who was below eighteen when the promise was made.
  • The damages paid will be to the actual loss suffered and no excess and no specific performance will be ordered.
  • S 70 of LMA specifies that the action for breach of promise must be brought within one year after the date of the breach.
  • S 71 of LMA a suit may be brought for the return of gift made in contemplation of marriage that has not been contracted, this is after the court is satisfied that this gift was given with the intention on the part of the giver that it should be conditional on the marriage being contracted.
  • In Mohameid Seminyu v Sofia Msangi (1975) Unreported the plaintiff was awarded Tshs 40,000/- as damages for breach of promise to marry, the High Court reduced the damages to Tshs. 20,000/-. The plaintiff claimed among other things; loss of employment due to pregnancy, injured feelings and diminished prospects for marriage.
  • Promise to marry may be oral, written or by conduct.

• Parties must actually know that they are entering into the contract to marry. The doctrine of estoppel does not apply in these contracts.
  • There are available defences for breach of contract to marry
    • Misrepresentation

• Fraud

• Mistake

• Duress

v The contract of marriage

• This is the relationship existing between a man and a woman or women geared to fulfil particular needs to different societies.
• Marriage contract confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together and to love one another as husband and wife to the exclusion of all others⁷.
• This contract creates a relationship of mutual and reciprocal obligations typically involving the sharing of a common home and common domestic life and the right to enjoy each other’s society comfort and assistance. This was stated by Munby J. in the case of Re E (an alleged patient); Re Sheffield city Council v E and S [2004] EWHC 2808.
• In English law marriage is an agreement between a man and a woman enter into a certain legal relationship with each other and which creates and imposes mutual rights and duties. It like any other form of contract affected by factor like form and capacity and it may be void or voidable.⁸
• However unlike commercial contracts a marriage contract is a sui generis in many respect and it has some distinctive characteristics;

   The law relating to capacity to marry is different from ordinary contracts.

   Marriage is contracted only after special formalities are observed.

   Grounds for validity of marriage are different from other contracts. i.e grounds for marriages to be void or voidable

   A contract of marriage may not be discharge by agreement, frustration or breach. It can be discharged by death or by formal legal act pronounced by a court of competent jurisdiction.

⁷ Bromley’s Family law, p 39

⁸ Ibid

o   Customary marriage

• Capacity of parties is determined by puberty, and for male parties upon attainment of circumcision and circumcision of female in some societies.

   Insanity and leprosy and other serious diseases normally are bar to marriage. Deformity was not a bar rather it reduces a person’s chances for marriage.

   Prohibited degrees of consanguinity or kindred; marriage was only between persons outside blood relations. For some tribes prohibited degrees fall as close as second degree of blood relations. E.g. Tswana, Luvedu and Yako

• In Fatuma Masudi v Ali Masatu (1977) LRT 3 Kisanga J held that ‘’parties being members of the same clan or being cousins does not fall within prohibited relationships as per s 14 LMA’’. Read also Michael Mangawe v Mang’ana Suluba (1976) LRT 19

   Consent of parties; when marriage was arranged during the couple’s childhood their consent was not necessary. If marriage was arranged upon the parties reaching adolescence then their consent was necessary but where betrothal is made during the girl’s adolescence then only the consent of parents was necessary

   Betrothal; this was the first formal agreement concluded both in patrilineal or matrilineal societies where marriage payment was customarily required. When marriage payment is done parties will not have the rights and obligations towards each other until marriage is concluded usually when parties reach marriage age. Example in Tswana after betrothal prospective couples would be allowed to start cohabiting until the beget a child when marriage would finally be arranged and marked with public ceremonies; no damages would accrue upon termination of betrothal by any of the parties other than the return of the marriage payment that had been made .

• No betrothal will be paid in case of second or subsequent woman’s marriage.

• Read the case of Masero Mwita v Rioba Masero (1969) HCD 199

   Marriage payment; this is an important element before the conclusion of marriage. In patrineal societies this is almost an inevitable requirement and a requirement in some matrilineal societies.

• It is connected with woman’s fertility and rights over children, where marriage payment is paid children acquire paternal lineage, among matrilineal societies marriage payment is usually not an important element, and in case of children they acquire maternal lineage.

• In case of woman’s first marriage payment agreed could be settled either in full before the final marriage ceremony or handling over or by instalment. For second marriages or subsequent marriage payment has to be paid in full

• In most patrileneal societies the payment would go to the father whereas in matrilineal societies it will go to the maternal uncles. In Islamic marriages the payment known as ‘’dower’’ will go to the bride herself.

   Handling-over; this is the final seal on the customary marriage. This is usually done on the wedding day, it is followed by cohabitation and consummation of the marriage.

v Statutory (civil) and religious marriage

• Practice and procedures for civil marriages and religious marriages are governed by The Law of Marriage Act.
  • Before solemnization marriage. There are pre-requisites that are to be into account;

• Parties must give notice of the intention to marry; this notice must given 21 days before the day they propose to marry. This is provided for under s 18 of LMA

   This notice is made to the registrar or registration office. This notice shall contain among other things, names and ages of the parties and their residence, names and residence of the parents, a statement on their status, a statement whether the marriage is intended to monogamous or polygamous.

   The notice shall be signed by both parties

   S 19 requires this notice to be published by the registrar or registration officer so that it may be known publically.

   S 20 provides that, anybody can give notice of objection of marriage on the ground that he is aware of facts which according to the provision of the act constitute impediments to the intended marriage. This notice may also be made to the Registrar-General as per s 24 of LMA

   If the intended husband is already married under polygamous marriage the wife or wives may bring notice of objections on the grounds that; s20(2) LMA

• That the taking of another wife will result into hardship to existing wife/wives and children when taking into account the husband’s means
  • That the intended wife is of a notoriously bad character or is suffering from an infectious or communicable disease or is likely to introduce grave discord into the husband.

   S 21 provides for the procedure of taking care of the notice of objection. A person objecting may withdraw it at anytime, it should be in writing and signed by him.

   The registrar or registration officer who receives the notice of objection shall not celebrate the marriage, and shall take all lawful action to prevent it from being celebrated pending notification that the objection has been withdrawn or dismissed.

   After receiving notice of objection the court or the board will summon both the parties and the objector and witnesses if any and hear them for a just determination of the objection. S 22 LMA, then the court or the board is required to send a certified copy of its decision to the registrar or registration officer whom the notice of the intention to marry.

   The Registrar-General is empowered by s 23 of LMA to dispense with requirements of giving notice upon proving that;

• That    the   parties   are    not   within    prohibited relationships.
  • That there is no impediment of a subsisting marriage.
    • That the parties are not below the minimum age of marriage.
    • Consent has been obtained

• Any good and sufficient reasons

• These may include accident victims, death bed marriage, when transferred to an employment where marriage is a must, when one party is going to war e.t.c

§  The presence of witnesses

   S 27 provides for requirement for every marriage to be contracted in the presence of at least two witnesses.

   The witnesses must;

• be above the age of 18 years

• Not of unsound mind due to mental illness or intoxication
  • Understand the language in which the ceremony is conducted.

Absence of witnesses is an offence as per s 154 of LMA

§  Marriage must be public

   It is a requirement of s 28 of LMA that marriage must be public

   Any member of the public may attend marriage in civil form so far as the accommodation of the office of the District registrar may permit.

   Any follower of the religion according to the rites which the marriage is celebrated may attend that marriage.

   Any member who is Islamic or belong to the customs to which the marriage is celebrated may attend the said ceremony.

• S 29 gives the procedure for marriage in civil form.

• S29(c) parties may state whether their marriage is going to be monogamous or polygamous.
  • S 31 of LMA gives the power to the Registrar General to authorize marriage ceremonies to be conducted in places other than those permissible if he thinks there are sufficient and good reasons;

   For civil marriages in any other place other than the office of the district registrar.

   For religious marriage in any other place other than places habitually used for public worship or gathering.

§  Marriage certificate

   When marriage is contracted in any form then the person contracting that marriage must complete in duplicate a marriage certificate in the prescribed form and sign and cause the parties and the witnesses to sign and hand one copy to the parties and retain the other copy. This is provided by s 33 to the LMA.

   When marriage is contracted before the registration officer in he is required to fill a statement of particulars relating to the marriage and sign and cause the parties and the witnesses to sign and send to the Kadhi is marriage was contracted in Islamic form or to the

District registrar if the marriage was contracted in customary form.

• Upon receipt of the statement of particulars of the marriage the district registrar or the Kadhi as the case may be shall register the marriage and issue a marriage certificate in duplicate, retain a copy and send the other to the registration officer for transmission to the parties.
  • Every registrar is required to maintain marriage register. S 42 of LMA and s 43 provides for the duty and procedure to register marriages.

§  Conversion of marriage

   A marriage may be converted from monogamous to potential polygamous or from potential polygamous to monogamous. This is by both the husband and the wife making a declaration as to their free will to make the conversion. S 11 of the LMA is to that effect.

• This declaration shall be made in the presence of a judge, a resident magistrate or a district magistrate and shall be recorded in writing, signed by the husband and the wife and the person before whom it is made, at the time of its making. And the copy of the declaration shall be transmitted to the Registrar-General.
  • S 11(5) of LMA is to the effect that no marriage between two Christians which was celebrated in a church in Christian form may, for so long as both the parties continue to profess the Christian faith, be converted from monogamous to polygamous notwithstanding that the marriage was preceded or succeeded by a ceremony of marriage between the same parties in civil form or any other form.

§  Duration of marriage

   According to s 12 of the LMA a marriage shall subsist until determined by;

• By the death of either party thereto;

• By a decree declaring that the death of either party thereto is presumed;
  • By a decree of annulment;

• By a decree of divorce; or

• By an extra-judicial divorce outside Tanzania which is recognised in Tanzania under the provisions of section 92 of LMA.

v Presumption of Marriage

• If a man and a woman live together for a period of two years or more, as a manner of a husband and a wife and the hold themselves to be so and they have gained themselves a reputation of married couples, there will be a rebuttable presumption that they are married. This is provided for under s 160 of the LMA.
  • The burden of proving that they are not in fact married lies on the person who needs to rebut the presumption. In Rafael v Mongula [1975] LRT 42 the court was of the view that ’’where a man and a woman have lived together in the circumstances that leads the outside world to believe that they are husband and wife, the party denying that must come out with evidence’’.
  • S 160(2) When such presumption is rebutted in any court of competent jurisdiction, the woman shall be entitled to apply for maintenance for herself and for every child of the union on satisfying the court that she and the man did in fact live together as husband and wife for two years or more, and the court shall have jurisdiction to make an order or orders for maintenance.
  • Upon application made either by the woman or the man, to grant such other reliefs, including custody of children, as it has jurisdiction under this Act to make or grant upon or subsequent to the making of an order for the dissolution of a marriage or an order for separation, as the court may think fit, and the provisions of the LMA which regulate and apply to proceedings for, and orders of, maintenance and other reliefs shall, in so far as they may be applicable, regulate and apply to proceedings for and orders of maintenance and other reliefs.
  • Under the common law this is known as ‘’common law wives’’

• This is normally applicable when there is a dispute, this presumption is said to protect the weaker members of the society i.e. the women and children viz upon the death of the husband or upon the breakdown of the marriage.
  • The court will look at various factors in considering the presumption.

• Long-cohabitation; where the parties have lived long enough to the extent of them being considered by neighbours as husband and wife.
  • How the neighbours perceive the couples, things like attendance of social events and ceremonies e.t.c.
  • Read: Francis Leo v Paskali Simon Maganga [1978] L.R.T. No. 22 in this case the Appellant sued the Respondent and claimed from the Respondent the sum of Shs.2,400/= being payment to be paid by the Respondent for legitimation of the Respondent’s five (5) children who were begotten by the Respondent with the Appellant’s daughter called Magdalena. The appellant claimed the sum of Shs.2,400/= under the customs and usage of Wanyamwezi. It would appear that the Respondent and Magdalena had lived in concubinage for a period of over 2 years. The Hon. Justice Mfalila (as he then was) observed in his judgment on appeal thus: Being duly married means going through the forms and procedures as provided for under the provisions of Marrige (sic) Act. the Hon. Judge went on to observe thus: When the presumption has been rebutted under the provisions of section 160 of the Marriage Act, the children of the presumed Marriage are illegitimate. The father of the illegitimate children may legitimate them according to Customary Law in order to bring them to the paternal side. The Respondent should have either surrendered the five children or taken legal steps to legitimate the 5 children to bring them to the paternal side.

Harubushi Seif v Amina Rajab [1986] TLR 221; The respondent petitioned before a Primary Court for separation between her and the appellant to whom she purported to have been legally married. The Court found that the parties had cohabited for fifteen years and four children were born out of their union. The Court was satisfied that the presumption under

s.160 (1) of the Law of Marriage Act, 1971, had not been rebutted and granted the petition for separation. The District Court on appeal, agreed with the decision of the Primary Court. The High Court found that the presumption of marriage was

rebutted and examined the effect of such rebuttal on the status and rights of the woman and children of a rebutted marriage.

Held:

• If the presumption of marriage under s.160(1) of the Marriage Act has been rebutted then under s. 160(2) the woman becomes a deemed legal wife devoid only of the legal right to petition for divorce and separation.
• The children of such relationship become deemed legitimate children and they need no legitimization

Hoka Mbofu v Pastory Mwisage [1983] TLR 286 ; The appellant was appealing against the decision of the District Court of Magu which reversed the Nyaluhande Primary Court decision which awarded the appellant Shs. 5,900/= being her share of property acquired during her concubinage for 16 years with the Respondent.   The District court purported to reverse the decision of the Primary Court on account that there could be no division of property between the parties if their presumed marriage had not been dissolved. The parties had not alleged presumption of marriage, hence this appeal.

Held: (i) Where there is no allegation of presumption of marriage, section 160 of the Law of Marriage Act, 1971 cannot be invoked merely on account of concubinage association;

(ii) rule 93 of the Customary Law (Declaration) Order, G.N. No. 279/1963 is applicable in the division of property acquired during concubinage association.

v Validity of marriage

• Certain consequences flow from marital status that being a case it is necessary to establish whether a valid marriage exist. There are two methods to be used when the question of validity of marriage arises, viz the grant of a declaration of the status and a decree of nullity⁹.
  • Declaration as to marital status; s 94 of LMA confers power to the court at the application of any interested party to grant a declaratory decree as to;
    • The validity of the purported marriage.

• The legitimacy of children. Whether the parents or grand- parents were married.
  • Presumption of death of a spouse.

• Whether the marriage was determined by Islamic or customary law.
  • Any interested party may seek a declaratory order as to the validity of the marriage. Eg the trustees of a pension fund may wish to establish whether a woman is the widow of a former employee. The court must refuse to hear a case if it considers that the applicant does not have a sufficient that the applicant does not have sufficient interest in the outcome of the proceedings or the declaration would be manifestly contrary to public policy¹⁰.
    • A declaratory order is a judgment in rem and it binds everyone including the state eg where an applicant is applying for citizenship.

• Decree of nullity; the decree for nullity is sought in order to clearly establish that the requirement for a valid marriage have not been satisfied. Two outcomes are possible under this circumstance, the marriage will either be ‘’void or voidable’’ s 96 of LMA vest the power to the court to annual voidable marriages

⁹ Bromley’s Family law, p 67

¹⁰ Ibid

• According to s 97 of LMA only parties to the marriage may make application for annulment. Where the petition is founded on an allegation of facts of which one party was ignorant at the time of the marriage may only be brought by that party. If it is brought on the ground of wilful refusal to consummate by one of the party only the other party can bring an action.

Ø  Void and voidable marriage

• Void marriage is one that in the eyes of the law has never existed whereas a voidable marriage is one that exist until it is has been annulled by the courts, and if it is never annulled it will be treated as valid. In De Reneville v De Reneville [1948] p 100 at 111, CA, Lord Greene MR pointed out the differences between a void and voidable marriage;

‘’ A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it: a voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.’’

• There are various distinction between a void and voidable marriage;

• Void marriages being void ab initio does not require a decree to annul it while voidable marriage in all respect is valid till a decree to annul it is issued. Hence if a party dies before a decree is granted, a voidable marriage must be treated as valid for all purposes and for all times¹¹. On the other hand a party to a void marriage may contract another marriage without the need to annul the first marriage.
  • In void marriage any person with interest may prove as a question of fact that there has never been a marriage at all whereas third party must treat a voidable marriage as valid unless a decree is issued to invalidate it.
  • A decree for void marriages does not affect the status of the parties at all but in voidable marriages the decree affects the status of the parties.

¹¹ Ibid Bromley’s Family Law p 70

• Lapse of time does not act as a bar to relief void marriage, whereas for voidable marriages time operates as a bar, time limit for application for relief. S 96(1) (a)(i) time limit is set to be one year.
  • A child born out of void marriage would technically be illegitimate, unless at the time of the conception either parent reasonably believed that they were validly married to the other parent.
  • Void marriages s 38 LMA
    • This is the kind of marriage that will be regarded in every court in which the existence of marriage in issue, that it has never and can never and can so be treated by both parties.

• It is one that is void ab initio (right from the beginning).

• A decree of nullity is not necessary to dissolve void marriage, but it is useful because it gives the court jurisdiction to make finance and property orders equivalent to those which can be made on divorce¹². The other importance of a decree in this circumstance is clearance of doubts about the status of parties. The decree is a judgment in rem so no any other party that may claim that the marriage is valid.

• Any interested party may bring proceedings in respect of a void marriage.

§  Grounds on which marriage will be void

• Prohibited degree of relationships s 14 LMA

Marriages between relatives related by blood or relatives by marriage (affinity) are prohibited. Michael Mangare v Mang’ana [1976] LRT 19 and Fatma Massoud v Massoud [1977] LRT 3

ü If either of the parties is under age s 13 LMA.

• Male 18 years, female 15 years
• 14 years with the leave of the Court
• Alhaji Mohameid v Knott [1968] 2 ALR

¹² Stabdley .K, (2008), Family Law, p 29

• Marital Status s 15 LMA (subsisting marriage) -: if either of the parties is already married at the time of the marriage in issue. Hyde v Hyde marriage is the union for life between one man and one woman to the exclusion of others. If a woman is married in Islamic form, the marriage will be void if she contracts another marriage before the expiry of the period of ‘’Iddat’’. The period of iddat is usually 3monts after the divorce or death of a husband s 38(j).

• Sex (respectively male and female) Cobert v Cobert [1970] WLR 1306 marriage is between a man and a woman. Sex change will not entitle a man who was biologically born so to be a woman for the purpose of marriage Act. In UK same sex marriages are not permitted but same sex partners may enter into a civil relationship

   A child born after a void marriage is treated as legitimate if at the time of conception (or at a time the marriage is celebrated) the parties or one of the parties reasonably believed the marriage is valid.

§  Voidable marriages s 39 LMA

• A voidable marriage is the one which is regarded by every court as a valid marriage until the decree of annulment has been issued by the court having competent jurisdiction s 40 LMA.
  • The court has the power to issue a decree to annul the marriage s 96 LMA.
  • Only parties to voidable marriage can open proceedings for nullity.

Grounds on which marriage is voidable

• Non-consummation/lack of consummation s 39 (a) (i) LMAConsummation is the first act of intercourse after marriage. It must be ‘ordinary and complete not partial and imperfect’¹³.

• Lack of consummation may be either due to incapacity of either of the party or by wilful refusal of either of the parties. S 39 (b) LMA. Baxter v Baxter [1947] 2 ALL 886 the wife did not allow husband to do sex without contraceptive sheath, because she did not want any

¹³ Standley, (2008) K, family law p, 31

children, a husband sought decree of nullity under the ground that marriage did not consummate. It was held that the use of sheath is by law the means of contraception in common use.

ü Wife has not attained the age of marriage and there is lack of capacity to consent according to s 17 LMA [s 39 (c) LMA]

• Lack of consent s 16 LMA

• The complainant must prove that his or her will has been overborne with the result that her or his consent to the marriage had been vitiated and she was entitled to a decree. Hirami v Hirami (1983)4 FLR 232

• Lack of consent- mistake-: the mistake must be in respect of the identity of the other party (not his or her quality) or the nature of the ceremony.

ü Pregnant per alium s 39 (a) (iv) LMA

• This is where the husband may petition for annulment if the respondent at the ceremony was pregnant by another person. Stocker v Stocker (1966) 2 ALL ER 147
  • To establish this you may perform DNA test

• If either of the parties was subject to recurrent attacks of insanity or epilepsy or either party was suffering from venereal disease in a communicable form s 39 (a) (ii) & (iii)

According to S 40 of LMA a voidable marriage is for all purposes a valid marriage until it is annulled by a decree of the court. The court has the power to issue the decree of nullity s 96 LMA

Ø   Consummation of marriage

Consummation is the first act of intercourse after marriage. It takes place after solemnization of marriage.

• It takes place whether or not a condom is used Baxter v Baxter [1948] AC 274

• It also takes place whether ejaculation took place or not R vR

• The marriage is said to have been consummated once the parties do have intercourse even though one or both parties are sterile.

Elements of consummation

• Physical ability to perform the act
  • Mental willingness to perform the act

   Failure to consummate

• This comes in two forms; either importance of the husband or structural inability of a woman.
  • It can also be due to psychiatric or sexual evasion Singh v Singh

[1971] 2 WLR 963

   Wilful refusal to consummate s 39 (b) LMA

• This can be expressed or inferred eg by refusing to go through religious ceremony where a civil ceremony is celebrated and either of the part refuses to consummate until religious marriage is celebrated Kaur v Singh [1972]1 WLR 105.

• Dredge v Dredge [1947] 1 ALL ER 29 a woman was pregnant by a man; when they finally got married the wife refused to consummate with the husband even when the kid was born, the husband petitioned for nullity on the ground that the marriage was not consummated the court held inter alia that ’’the marriage had never been consummated and that non-consummation was due to wilful refusal of the wife thus the husband was entitled to relief