v MATRIMONIAL LITIGATION/PROCEEDINGS

• Generally cohabitation is one of the major incidents of marriage. The law requires that souses can only be permitted to live in separation or be divorced only where good causes exist.

• Where problems occur in a marriage and the problems become so intense that the parties can no longer live together, either of the parties may petition for separation or divorce as the case may be.

• According to s 76 of the LMA Original jurisdiction in matrimonial proceedings shall be vested concurrently in the High Court, a court of a resident magistrate, a district court and a primary court.

Ø Separation and divorce

• Separation

• This brings a marriage to an end for a specified period of time. It leaves the marriage intact and enables the couples to cool off, and give them ample time to settle their differences thus come into an amicable and lasting settlement of their dispute and prepares them to resume cohabitation.

• Sometimes conciliation fails and thus parties live for long periods of separation and may later result into divorce.

• During the period of separation the parties remain dully married to each other and there cannot be a perpetual separation.

• The orders for adoption may contain order for custody of children, maintenance of children and maintenance of spouse.

• According to s 113 the court shall set aside a decree of separation on the joint application of the parties or where there is misrepresentation or mistake of fact.

• There are two types of separation

  Voluntary separation-: this is when parties voluntarily and privately agree to leave apart. Sometimes it is due to family intervention. This form does not require any court intervention. According to s 67 of the LMA parties by a written agreement may agree to live apart.

• Voluntary separation may contain clauses such as non-molestation orders, i.e orders that prohibit acts of annoyance, disturbance or interference with other spouses.

• The separation agreement may be discharged by either breach when this happen desertion commences or by resuming cohabitation.

  Judicial separation-: this involves one of the parties going to the court of law to apply for a decree of separation for a specific period of time. S 99 LMA.

• Grounds for a decree of separation

   There is only one ground for the issuing of the decree of separation that is the marriage has broken down. S 107(2) LMA provides evidence to show that the marriage has broken down.

• Adultery-: this is an act of sexual intercourse between a male and a female who are not married to each other when at least one of them is married to someone else and the intercourse is not by force.

   S 72 LMA a husband or wife may bring a suit for damages against any person with whom his or her spouse has committed adultery. This proceeding may not lie where the aggrieved party has consented to or connived at the adultery or where damages where in respect of the alleged adultery have been claimed in a petition for divorce.

   The court may dismiss the suit for claim of damages for adultery where the defendant satisfied the court that he or she did not know and could not, by the exercise of reasonable diligence, have known that the person with whom he or she committed the act of adultery was married s 72(2) LMA.

   According to s 74 of LMA Damages for adultery or enticement shall be in the discretion of the court but shall not include any exemplary or punitive element. Regard shall be to the question whether husband and wife were living together or apart.

   Jumanne Jingi v Njoka Kiduda 1984 TLR 51 (HC), [the respondent genuinely believed that he was taking a free woman] Lugakingira J, The appellant lost in the Primary Court and the District Court in an action for damages for adultery E and therefore appealed to the High Court. The court held that; A suit brought under section 72 of the Law of Marriage Act, 1971 shall be dismissed if the   F defendant satisfies the court that he did not know and could not by exercise of reasonable diligence have known that the person with whom he or she committed the act of adultery was married.

   Gai Ipenzule v Sumi Magoye 1983 TLR 289 (HC); the Court held that it is not the law that direct evidence of persons caught in flagrante delicto is the only admissible evidence to prove adultery. Very rarely adultery is proved by direct evidence; the common practice is that adultery is proved by circumstantial evidence and that in assessing damages for adultery, the court shall have regard to any relevant custom of the community to which the parties belong.

   Read also; Juma Misanya and Another v Lista Ndurumai [1983] TLR 245 (HC) [special damages and mesne profits], Zacharia Lugendo v Shadrack Lumilang’omba [1987] TLR 31 (HC) [Whether proof of marriage between parties necessary], Mafuru Magabanya v Joseph Mulya [1987] TLR 22 (HC) [Quantum of damages]

• Cruelty-: this is a conduct of such character as to have caused danger to life, limb or health. Russel v Russel [1952] 1 ALL ER 875 what is important is to amount to cruelty such a character must have caused danger to life health to give rise to a reasonable apprehension of danger (the act need not actually occur).

   Cruelty can either be mental or bodily (physical). Physical cruelty is simple to identify it may be by battery or chastising. Mental cruelty or psychological cruelty seems to be the most difficult to identify, in Gollins v Gollins (1963) 2 ALL ER 966, Lord Reid was of the

view that ‘’ the findings of cruelty is a question of fact and degree and not prejudged by objective standards, the court must consider this man and this woman subjectively in case to case basis…’’

    The respondent’s acts need to be judged in relation to the surrounding circumstances such as physical and mental conditions, the capacity of endurance or peculiar susceptibility of the innocent spouse and the intention of the offending spouse and the offender’s knowledge of actual or probable effects of his acts to the other. In Jameson v Jameson [1952] 1 ALL ER 875 it was held that ‘’ where it is sought to prove cruelty by evidence of a cause of conduct adopted by conduct adopted by one spouse with the deliberate intention of wounding and humiliation…[E]vidence may be proved by evidence of number of acts each of which is serious in itself, but it may be even more effectively proved by evidence of a long continued series of minor acts none of which could be regarded as serious if taken in isolation…[T]he intention need not be proved by direct evidence it can be referred from the whole facts and atmosphere by evidence.’’

   Saidi Mohameid v Zena Ali [1985] TLR 13 (husband beating up the wife and undressing her in front of other people). The court held that ‘’Cruelty means wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, so as to give rise to a reasonable apprehension of such danger’’ and further that ‘’the appellant’s conduct of not only beating but also undressing his wife in front of other people generally, and her father-in-law in particular was an embarrassing and distressing act of cruelty which inflicted considerable physical and mental torture to the respondent’’.

    Barker v Barker (1949) 1 ALL ER 247 ‘’there are certain injuries that speak for themselves and that one does not have to call a doctor to say that it has caused danger to health, limb or life’’.

   Various acts may constitute cruelty, e.g. beating, habitual misbehaviour such as excessive drinking and wife humiliation and unnatural sexual practices.

   Mariam Tumbo v Harold Tumbo [1983] TLR 293 (HC); the court held inter alia that it is one thing to tolerate a spouse’s misconduct, it is another to put up with the consequences thereof; in contemplation of this the legislature enacted s. 85 of the Law of Marriage Act, 1971 that evidence of misconduct by a husband or a wife shall not be inadmissible in any matrimonial proceeding on the ground that the misconduct was condoned by the aggrieved spouse; and further that when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances, would consider that the conduct complained of is such that this spouse should not be called on to tolerate it.

   Read also; Julia Mazengo v Jackson Leganga [1986] TLR 244 (HC) (wear and tear), Charles Aoko v Dorina Gibonga 1988 TLR 44 (HC)

• Desertion-: this occurs where there is a cessation of the flow of matrimonial rights and obligations eg denial of conjugal rights without reasonable cause or not taking care of the family.

   It is an unjustifiable withdrawal from cohabitation among other things without the consent of the other spouse and with the intention of remaining separated permanently i.e where there is no animus revetendi

   Various elements must exist for an act to amount to desertion;

• There must be a physical separation, however not every physical separation will amount to desertion. Desertion must be looked upon on the conducts of the parties rather than the actual physical separation.

• There must be established an intention to desert permanently i.e animus desserendi without animus revertendi.
  • It must be without reasonable cause if there is a reasonable cause such as studies or work purposes it may not amount to desertion.
  • Lack of consent by the other party.

   Desertion may also mean withdrawal from a state of things as a repulsive conduct which make the spouse run away from a matrimonial home eg refusal to have sexual intercourse or excessive demand of it.

• There are two forms of desertion;

   Physical / simple desertion-: this is where someone clearly someone leaves the house and there is clearly lack of intention to come back (animus revertendi). It can happen by one spouse intentionally not communicating to the other (everything comes to a standstill)

   Constructive desertion-: this happens when the party does not leave the house but he/she behaves in a manner where the victim party leaves the house. Barchler v Barchler (1947) 1 ALL ER 319 [the H forced the wife to do sexual intercourse in an becoming manner] it was stated that; ‘’…While the conduct of the H no doubt caused the wife intense unhappiness and was such that no decent man would have been guilty of it, it did not justify her treating it as dismissal from consortium in leaving the matrimonial home. The W could have protected the H from slander and suspicion (of homosexuality) by staying at the matrimonial home and not by funning the fire of gossipy by her running away..’’

• Effect of decree of separation s 111 LMA
  • The parties shall be relieved of the duty to cohabit and to render each other help and companionship.

• The parties shall be relieved of the duty to maintain each other, but shall not dissolve their marital status. However the court may order for maintenance

• Terms of separation

Ø Divorce

• Maintenance s 115 LMA the husband may be ordered to maintain the wife during the time of separation
  • Custody, maintenance and access to children
  • Non-molestation clause s 139 LMA this is where there is an element of cruelty.

This is a legal dissolution or termination of marriage. A marriage comes to an end by a decree of divorce issued by a court of law and not otherwise.

Ground for divorce read s 107 of the LMA

• The only ground that the court may issue the decree for divorce is that the marriage has broken down irreparably. S99 LMA any married person may petition for divorce.

   According to s 107 of LMA the court is required to have regard to all relevant evidence regarding the conduct and circumstances of the parties.

   The evidence to show that the marriage is broken down irreparably is the same as those for separation what matters is the extent.

   When there is simply ‘’wear and tear’’ the marriage will not be said to have broken down irreparably. This is a simple misunderstanding which are said to be normal in marital relationships however before one rely on wear and tear principle he should consider the provisions of s

66 of LMA. Read also; Julia Mazengo v Jackson Leganga [1986] TLR 244 (HC) (wear and tear), Charles Aoko v Dorina Gibonga 1988 TLR 44 (HC)

• S 100 LMA provides for time limitation for lodging petition for divorce. It must be after 2 years of the marriage. However if the petitioner can prove exception hardship then that time limit may be waived. Mariam Tumbo v Harold Tumbo [1983] TLR 293

Prior-procedure before going to court

• S 101 LMA provides for the requirement to refer the matter to Conciliator Board before referring the matter to the court of law.

• The board has to certify that it has failed to resolve the matter by issuing a certificate setting out its findings.

• In practice these boards include, religious institutions, ward tribunals, social welfare departments e.t.c s 102(2) LMA

Dispensation with the conciliation board

• The court may dispense the requirement for reference to conciliation board s 101(a-f) LMA if it is of opinion that the circumstances are extraordinary which may make reference to the board impracticable.

   The effect of decree of divorce s 112 of the LMA

• The decree dissolves the marital status of the parties 30 days after the decree is issued.

• The   dissolved    marriage    shall   not    be   an   impediment   to subsequent marriage of either of the parties.

   S 105 of LMA no person shall be made a co-respondent to a petition of separation or divorce unless it is on the grounds of adultery.

   S 106 of LMA points out the contents of petition of separation and divorce.

   Once the court receives the petition of separation or divorce it shall deal with it in the manner provided for under s 108 of LMA. After all the procedures are complete the court may grant a decree of divorce or separation as the case may be s 110 of the LMA.

   S 115 of the LMA the court is empowered to order maintenance of the wife or husband or former wife or husband. However where the marriage has been dissolved the wife shall not be entitled to maintenance unless there are special circumstances as the court may deem fit. The court has also the power to order security for maintenance in various circumstances s 117 LMA. According to s 120 this right to maintenance will cease upon the re-marriage of the spouse.

Ø Islamic divorce

• Islamic marriages are said to be characterised as category of contracts that are capable of unilateral termination without the terminating party being held to be in breach¹⁴.
• The husband enjoys unfettered right to divorce his wife, however it is considered sinful for him to exercise this right without any justifiable cause.

• There are three conditions that must exist to prove that the marriage has broken down;

• Issuance of Talaq

• Marriage has been celebrated in Islamic form

• The conciliation board must issue a certificate to show that it has failed to reconcile

§  Forms of Islamic divorce

• The talak may either be verbal or written.

• It must be issued in the presence of 2 witnesses

• It must not be issued out of anger

• The marriage must be celebrated in Islamic way

• No talak may be issued if the woman is in her menstruation or she is pregnant (until she delivers and stay 45 days)

Types of divorce

• Talaq al –bida- these are the types of divorces that are irrevocable, and more or less instantaneous (they become immediately effective upon pronouncement)

• These are the most common among Muslims and they can be in single pronunciation followed by an

¹⁴ Chuwa, G, (2006), Islamic Family Law in Tanzania; Marriage and its Dissolution, a paper presented at a seminar for resident magistrates held at the Institute of Judicial Administration- Lushoto

expression    of    finality    or    triple    pronunciation (‘’talaka tatu’’).

• The wife has to observe her iddat after the pronunciation of talaq.

• Talaq as sunna- these are more meritorious and they allow an opportunity for revocation.

• This is said to be the approved method of repudiation accepted by all sect.

• There is a room for revocation and remarriage as between the parties.

• It can either be talaq as sunna in ahsan form which is the single pronunciation by the husband during the period when the woman is not in her menstruation period knowan as Tuhr period. If the husband wishes the talaq to be final he must not have sexual intercourse with the wife during the whole period of iddat that is three menstruation periods during which the husband may revoke the talaq. The revocation may be expressly example by resuming sexual intercourse or impliedly by touching affectionately manner.

• It can also be talaq as sunna in hasan form, this leads to greater finality. The husband pronounces three consecutive talaqs one in each of the three consecutive Tuhr periods. As soon as he pronounces the third talaq it becomes irrevocable the marriage does not come to an end until the third pronouncement. The remarriage is no longer possible after this unless another marriage is celebrated and the wife immediately starts to observe iddat.

Other types of talaq

§  Mubaarat divorce

• This is known as consent divorce. Both the parties agree to divorce amicably.

§  Khul Divorce

• The wife pays some compensation to the husband to buy her freedom (kulai) Mwinyi Hamisi v Zainab Bakari [1985] TLR 217

• The wife must pronounce Kulah divorce 30 days before the husband pronounces the 3 talaks

• The court cannot fix the amount it is the husband that can fix the amount

§  Fashik divorce

• This is judicial divorce issued by Kadhi court. It is applicable only in Zanzibar.

   Bars to Divorce (3Cs)

• Connivance; s 85 LMA Evidence of misconduct by a husband or a wife shall not be inadmissible in any matrimonial proceeding on the ground of connivance by the aggrieved spouse but no person shall be entitled to any relief by reason only of misconduct at which he or she has connived.

• Richmond v Richmond (1952) 1 ALL ER 838 the court held that the husband’s adultery has been connived by the wife, the husband’s conduct in leaving the wife and failing to pay her maintenance was not ‘’natural consequence’’ of her connivance of his adultery and as her own adultery has been connived by the husband. She was entitled by an order for maintenance on the ground of desertion and wilful neglect to maintenance.

• Condonation; Evidence of misconduct by a husband or a wife shall not be inadmissible in any matrimonial proceeding on the ground that the misconduct was condoned by the aggrieved spouse.

• Collusion; s 87 LMA provides that, the court may dismiss any petition or application or make such other order as it may think fit, including an order as to costs, in any case where it is satisfied that the petitioner or applicant has attempted to deceive the court in any material respect or has wilfully failed to make a full disclosure of all relevant facts.

   Noble v Noble& Ellis (1964) 2 WLR 349 the issue was whether collusion alone taunted the husband’s suit. The distinguishing feature of a collusive bargain was a corrupt intention or conduct   of the suit and tending to pavade a cause of justice; that to determine whether or not the bargain was collusive required a careful analysis of it, the bargaining being construed as any contract between the H and correspondent being without corrupt intention it was not collusive.

Ø Property Rights, Liabilities and Status

   Couples acquire and posses properties either before or during the subsistence of marriage. Ownership has long been the problem especially when the marriage ceases to exist.

   According to s 56 of the LMA a married woman has the rights to acquire, hold and dispose of property be it movable or immovable she shall also have the same right to contract, the same right to sue and the same liability to be sued in contract or in tort or otherwise..

   S 57 of LMA is to the effect that where a man has two or more wives they shall as such, enjoy equal rights, be subject to equal liabilities and have equal status in law.

   Under Common Law property right was historically connected to the duty of the husband to maintain the wife, that being the case once the woman was married she was required to surrender all her properties to her husband, the husband became the trustee of the wife’s property. In 1882 an Act was enacted (In UK) which changed the position, the Act empowered married women to own properties obtained prior and during the subsistence of the marriage.

   The doctrine of separate property

• According to s 58 of LMA a marriage shall not operate to change the ownership of any property to which either the husband or the wife may be entitled or to prevent either the husband or the wife from acquiring, holding and disposing of any property.

• That is to say, this section recognises the existence of separate personal property of the wife or of the husband. However parties may agree to the contrary.

  Joint property; these are properties that are acquired due to joint efforts of parties to marriage, matrimonial home is one of the examples of joint properties. S 2 of LMA defines Matrimonial home to mean the building or part of a building in which the husband and wife ordinarily reside together.

• With regard to matrimonial home s 59 of LMA specify that while the marriage subsists and without the consent of the other spouse, one spouse shall not alienate it by way of sale, gift, lease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds.

• When either of the couples contravenes this requirement the estate or interest so transferred or created shall be subject to the right of the other spouse to continue to reside in the matrimonial home until, the marriage is dissolved; or the court on a decree for separation or an order for maintenance otherwise orders.

• The right of the other party will exist unless the person acquiring the estate or interest can satisfy the court that he had no notice of the interest of the other spouse and could not by the exercise of reasonable diligence have become aware of it.

• Where the spouse that owns the estate or interest of the matrimonial home deserts the other spouse the deserted spouse shall not be liable to be evicted from the matrimonial home by or at the instance of the husband or the wife, as the case may be, or any person claiming through or under him or her.

• The exception to this is on the sale of the estate or interest by the court in execution of a decree against the husband or wife, as the case may be; or by a trustee in bankruptcy of the husband or wife, as the case may be.

  Property acquired during the subsistence of marriage; S 60 creates a rebuttable presumption as to properties that acquired during the subsistence of the marriage,

• If the property is acquired in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse.

• If it is acquired in the names of the husband and wife jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal.

o Bi. Hawa Mohameid V Ally Seif [1983] TLR 62

• S 61 of LMA is to the effect that where, during the subsistence of a marriage, either spouse gives any property to the other, there shall be a rebuttable presumption that the property thereafter belongs absolutely to the donee.

   Concerning liability of spouses s 65 expressly provides that;

• No husband shall be liable for the torts of his wife by reason only of his being her husband;

• A husband and wife shall have the same liability in tort towards each other as if they were unmarried;

• Neither a husband nor a wife shall be entitled to claim damages, in an action arising out of any negligent act or breach of duty, in respect of the loss or impairment of consortium.

   Division of Matrimonial Property

• S 114 LMA the court have to order division of matrimonial property taking in regard the contribution of each party in terms of money and property towards acquisition of matrimonial property. Tumbo V Tumbo

• The Court may order the sale of any such asset and the division between the parties of the proceeds of sale.

   In deciding the distribution the court shall have regard to

• the customs of the community to which the parties belong

• the extent of the contributions made by each party in money, property or work towards the acquiring of the assets

• any debts owing by either party which were contracted for their joint benefit

• the needs of the infant children, if any, of the marriage,

   Housekeeping is a conjugal obligation hence it cannot be equated to physical participation in acquisition of assets. However in Bi Hawa Mohameid v Ally Seif [1983] TLR welfare of family is essential to the economy of the family,

hence it is proper to consider welfare of the family a contribution towards acquisition of the matrimonial assets.

    References to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. S 114 (3)LMA.