¹ Law Reform Commission of Tanzania, Report of the Law Reform Commission on Law of Marriage Act (No. 5, 1971). Presented to the Minister of Justice and Constitutional Affairs, Salaam, Dar es, 1994, 33, (LRC).Google Scholar

² S. 160(1) states that: “Where it is proved that a man and a woman have lived together for two years or upwards, in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duly married.” And s. 160(2) further states that: “When a man and a woman have lived together in circumstances which give rise to a presumption provided for in subsection (1) and 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 order or orders for maintenance and, upon application made therefore 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 marriage or an order for separation, as the court may think fit, and the provisions of this Act which regulate and apply to proceedings for and orders of maintenance and other reliefs shall, insofar as they may be applicable, regulate and apply to proceedings for and orders for maintenance and other reliefs under this section.”

³ In one case Mkwawa, J., wrote: “I must confess that this case caused considerable concern and anxiety in me. I did not at all find it easy to determine the appeal this way or that way. Were its lamentable facts put into a novel or portrayed on the stage they would be taken as being improbable as to be worthy of serious attention” See Krisanlus Matembo v. Adu Kinunda (Mtwara) High Court Civ Appeal No. 112 of 1991 (unreported, 16/7/92)Google Scholar. And in Elizabeth Ismail v. Melikizedek Harun [1982] TLR 322, Mfalila, J., noted that “the District Court Magistrate was clearly confused, he did not know what law to apply, customary or national law. In the end he applied both … “ (at 323).Google Scholar

⁴ See LRC, above, n. 1, 33.

⁵ LRC noted that the LMA “was enacted with the view of unifying and harmonizing the then existing multiple regime[s] of law of marriage. It aimed at bringing the law of marriage into accord with TANU's aspirations of fostering equality, individual dignity, freedom and respect to the people; to provide for freedom of marriage and equal recognition of all marriages however celebrated, whether … Christian, Islamic, civil or customary.” See LRC, above, n. 1, 1. The acronym TANU refers to the ruling political party. The Court of Appeal of Tanzania has also declared that “the mischief which the LMA, 1971 sought to cure … was … the traditional exploitation and oppression of married women by their husbands … by reducing the … inequality between them … in so far as their respective domestic rights and duties are concerned.” See Mohamed, Bi Hawa v. Sefu, Ally, Court of Appeal Civ App No. 9 of 1983, (unreported) at 13–14.Google Scholar

⁶ See Woodman, G. R., “The peculiar policy of recognition of indigenous law in British colonial Africa: a preliminary discussion,” (1989) 22 Verfassung und Recht in Ubersee 3, 273CrossRefGoogle Scholar; Rwezaura, B., “Tanzania: building a new family law out of a plural legal system,” in Freeman, M. D. A. (ed.), Annual Survey of Family Law (1994/1995) 33 Journal of Family Law, 423–450Google Scholar; Poulter, S., Legal Dualism in Lesotho: A Study of the Choke of Law Question in Family Matters, Morija, 1981, 14Google Scholar; Himonga, C. N., Family Succession Laws in Zambia, Munster, 1995, 265Google Scholar; and Ncube, W., “Released from legal minority: the Legal Age of Majority Act in Zimbabwe,” in Armstrong, A. and Ncube, W. (eds.), Women and Law in Southern Africa, Harare, 1987, 193.Google Scholar

⁷ See Cutshall, C. R., Justice for the People: Community Courts and Legal Transformation in Zimbabwe, Harare 1991Google Scholar; Sachs, A. and Welch, G. H., Liberating the Law: Creating Justice in Mozambique, London, 1990; Republic of Kenya, Report of the Commission on the Law of Marriage and Divorce, Nairobi, 1968; Republic of Uganda, Report of the Commission on Marriage, Divorce and the Status of Women, Entebbe, 1965.Google Scholar

⁸ See Read, J. S., “A milestone in the integration of personal laws: the new law of marriage and divorce in Tanzania,” [1972] J.A.L., 19–39Google Scholar and Rwezaura, B. and Wanitzek, U.“Family law reform in Tanzania: a socio-legal report,” (1988) 2 International Journal of Law and the Family 1–26.CrossRefGoogle Scholar

⁹ With the exception of the Muslim men who insisted on retaining their right to pronounce talak. Even then, LMA required that all couples married under Islamic law wishing to divorce must first submit their marital dispute to a marriage conciliatory board before talak could be pronounced. And even after talak has been pronounced, the court retains the ultimate jurisdiction to make ancillary orders, including division of assets and custody of children (s. 107(3) LMA).

¹⁰ See Raphael Dibogo v. Frabianus Wambura [1975] LRT at n. 42, and Ramadhani Mohamed v. Omari Ramadhani [1976] LRT at n. 8. But as we shall see below, the continuing social importance of bridewealth accounts in part for the failure of certain couples to complete their marriage procedures before commencing cohabitation. Moreover, the fact that the law of bridewealth was reformed without at the same time making corresponding changes in the law of child legitimacy has continued to generate conflict between customary law and the general law. In an attempt to perhaps bridge the gap between the two systems, the High Court has, in recent years, successfully extended the “welfare of the child” principle, contained in s. 125 (LMA), to all children irrespective of the marital status of the parents. See, Rwezaura, , op. cit. above at n. 6, 523.Google Scholar

¹¹ Parties to a civil marriage may, “if they so wish, request the district registrar to make an entry in the register whether the marriage shall be monogamous or polygamous, and upon such request being made and upon satisfying himself that both the parties have freely and voluntarily made the request, the district registrar shall comply therewith” (s. 29(c) LMA).

¹² According to s. 20(2) (b), an objection to an intended marriage may be made by an existing wife, or one of the wives, to the registrar of marriages or registration officer on the grounds that “the intended wife is of notoriously bad character or is suffering from an infectious or otherwise communicable disease or is likely to introduce grave discord into the household.” As noted below, this statutory provision is now used by women cohabitants as a bargaining device to secure financial support from men who wish to marry other women. Indeed the right of the first wife to object to a later additional marriage of her husband is now being seriously considered by the South African Law Commission as a possible improvement on their system of polygyny. See South African Law Reform Commission, Harmonization of the Common Law and the Indigenous Law (Customary Marriages), Project No. 90, Issue Paper 3, 1996, 5.

¹³ S. 63(b): “it shall be the duty of every wife who has the means to do so, to provide in similar manner for her husband if he is incapacitated wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health.”

¹⁴ See Rwezaura, B., “The integration of marriage laws with special reference to Tanzania,” in Abun-Nasr, J. M.. Spelleberg, U. and Wanitzek, U. (eds.). Law, Society, and National Identity. Hamburg. 1990, 139–161.Google Scholar

¹⁵ This point was also noted by the Court of Appeal in Bi Hawa Mohamed (see above, n. 5) when it observed that “[a]lthough certain features of traditional inequality still exist under the Act, such as polygamous marriages, these do not detract from the overall purpose of the Act as an instrument of liberation and equality between the sexes,” at 13.

¹⁶ See United Republic of Tanzania, The Government White Paper No. 1 of 1969: Proposals on Uniform Law of Marriage, Dar es Salaam, 1969, 13.Google Scholar

¹⁷ Ibid. at 13.

¹⁸ See Kaisi, C. O., Women under Presumption of Marriage: A Critical Analysis of the Law, Practice and Social Implications of S. 160 of the Law of Marriage Act, 1971, LLM Thesis, University of Dar es Salaam, 1994, 129Google Scholar. Also Blesoe, C., Women and Marriage in Kpelle Society, Stanford, 1980Google Scholar, and Wanitzek, U., “Bulsa marriage law and practice: women as social actors in a patriarchal society,” forthcoming in Zips, W. and van Rouveroy van Niewaal, E. A. B. (eds.), Sovereignty, Legitimacy and Power in West African Societies: Perspectives from Legal Anthropology, Munster, 1998.Google Scholar

¹⁹ As Kyando, J., noted, the parties’ “[a]ttempts to marry were thwarted by their respective family members …“ See Gwandenga, Yonathan v. Daniel, Kasiani (DSM) High Court Civil Appeal No. 70 of 1991. Kaisi has correctly noted that socio-economic conditions in Tanzania “have changed tremendously especially in the mid-eighties to date. [M]any people cannot afford high bride price payments and the expensive showing-off of ceremonies of marriages. And with more men and women moving into urban areas in search for jobs, many people just take each other and live together or ‘put up’ house together.” See Kaisi, op. cit. 39. See also below, n. 76.Google Scholar

²⁰ See Kaisi, op. cit. 129.

²¹ The 1985 European figures for de facto unions expressed as a proportion of all legally married couples were as follows: Sweden (19.9%), Finland (11.4%), Norway (10.8%) France (8.6%), Netherlands (7.7%), Great Britain (6.2%), Germany (4.7%), Austria (4.2%), Hungary (2.9%) and Italy (1.4%). See Prinz, C., Cohabiting, Married, or Single, Aldershot, 1995, 75. The fact that the proportion of de facto unions in Tanzania far exceeds that of Sweden and of other European jurisdictions may be a consequence of how de facto unions are defined for the particular study and a result of the differences in the law and social conditions producing the European version of de facto unions. On the other hand, the Mozambique figure of 90% reflects a different kind of legal history whereby the Portuguese colonial legal system neither recognized nor prohibited customary unions. Such non-recognition resulted in these unions being defined as “de facto unions” instead of valid customary marriages: see Sachs and Welch, op. cit. 103.Google Scholar

²² These inquiries came from public institutions such as the Tanzania People's Defence Forces, the police, the Tanzania Harbours Authority, the Tanzania Railways Corporation, the Tanzania Posts and Telecommunication, the Insurance Corporation and the Tanzania-Zambia Railway Authority.

²³ See Kabeberi-Macharia, J. and Nyamu, C., “Marriage by affidavit: developing alternative laws on cohabitation,” unpublished paper presented at the 9th World Conference of the International Society of Family Law, Durban, 28–3107, 1997.Google Scholar

²⁴ See Kaisi, op. cit. 141.

²⁵ According to Kaisi, the average period of cohabitation in her sample was 5.4 years. See Kaisi op. cit. 129.

²⁶ See Art. 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women.

²⁷ A free translation from Kiswahili of Art. 13(1) states, inter alia, that “all persons are equal before the law and are entitled, without discrimination to equal protection of the law.” The principle of non-discrimination should extend to protect de facto unions in appropriate cases. For the generous legal acknowledgement of de facto unions in the Mozambique family law project “brings within the terms of the Project the great majority of Mozambican families—estimated at 90%—who have not registered their marriages. It is accordingly an important device for narrowing the gap between registered and unregistered unions and thereby materialising the constitutional principle of treating all citizens alike independently of background. As such it is both democratic in its range and unifying in its operation.” See Sachs and Welch, op. cit., 103.

²⁸ See Olmesdhl, M., “Marriage and cohabitation: cross-cultural comparisons” in Eekelaar, J. and Katz, S. (eds.), Marriage and Cohabitation in Contemporary Societies, Toronto, 1980, 46–56.Google Scholar

²⁹ See Jessep, O., “De facto relationships and the law in Papua New Guinea,” (1992) 41 I.C.L.Q. 460–471, 462.CrossRefGoogle Scholar

³⁰ For example, the male partner might assert that the woman is his girlfriend while the woman believes that she is his wife. Thus most cases show a tendency for women claiming under s. 160 to cite a longer period of cohabitation than men. In some cases the women use their children's age to corroborate their story. See Bagumba, Letiaa v. Magoma, Thadeo and Anor, , (Mwanza) High Court Civ App No. 8 of 1989 (unreported) where the man testified that between 1977 and 1980 he regularly had sexual intercourse with the appellant but they were living separately. This evidence was contradicted by the appellant who contended that the two had started cohabitation together in 1976. Similar denials by men have also been reported in Kenya (see Kabeberi-Macharia and Nyamu, op. cit. 12). Thus, as noted by Bledsoe, “[w]hen brought to court, cases involving disputes over marital statuses invariably end in a tangle of contradictory testimonies from numerous witnesses” (Bledsoe, op. cit. 8). In these circumstances courts have to be alert to the manipulation of personal status and the possible underlying motives for such conduct.Google Scholar

³¹ See Bourdillon, M. F., The Shona Peoples, Harare, 1991, 320.Google Scholar

³² Ibid. at 320.

³³ See below, page 198, and n. 48.

³⁴ Kaisi notes that a number of male cohabitants in this category who are still married to their “church wives”, either in name or otherwise, are quick to produce their old marriage certificates to prove that they are not married to the claimant partners but to the other women. See Kaisi, op. cit. 135.

³⁵ In the matter of Albert, Mwanjesa, (DSM) High Court Probate and Admin Case No. 23 of 1989, the deceased had two wives. The first was a church-wife and the other was either “just a cohabiter” (as noted in Kaisi) or probably a customary law wife. There were eight children from each of these unionsGoogle Scholar. See Kaisi, ibid. 171.

³⁶ In the matter of Hoossein, Shekilango R., (DSM) High Court Probate and Admin Case No. 222 of 1980 (unreported), the deceased, a prominent Tanzanian politician, was previously married in accordance with Islamic law. He subsequently cohabited with another woman, a Christian, with whom he had two children. On his death intestate, the first wife successfully challenged the validity of the second union and was able to prevent the two children from inheriting their father's propertyGoogle Scholar. See Kaisi, ibid. 170.

³⁷ As noted by Kabeberi-Macharia and Nyamu, “[t]he way in which marriage ceremonies are conducted among Kenyan Africans in the contemporary setting provides further evidence of the fluidity of boundaries [between different forms of marriage valid under the law]”. See Kabeberi-Macharia and Nyamu, op. cit. 16.

³⁸ See Poulter, op. cit. 34.

³⁹ See Nhlapo, R. T. “No cause for optimism: bigamy and dual marriage in Swaziland,” in Armstrong and Ncubc (eds.), op. cit. 125.Google Scholar

⁴⁰ In Angelina Mutalemwa v. Benedict Mutalemwa [1978] LRT n. 44, the applicant was first married in 1946 in accordance with Roman Catholic rites. Following an informal divorce under customary law, the applicant remarried (presumably under customary law). The second marriage lasted for 21 years, during which five children were born to the union. The wife's application for maintenance was dismissed by the High Court on the ground that her marriage was void.Google Scholar See also Violet Ishengoma Kahangwa v. Adm'r Gen'l, Court of Appeal, Civil Appeal No. 17 of 1989 (16/7/90 unreported) per Makame, Kisanga, Mfalila, J.J.A., in which comparable facts resulted in the children of the second marriage losing their inheritance rights following the intestate death of their father. For more details on Violet see Rwezaura, op. cit. 123.Google Scholar

⁴¹ This appears, for example, from the judgments of Kazimoto, J. in Anastasia Mapunda v. Agathon Mbepera (Mtwara) High Court Civil Appeal No. 45 of 1992Google Scholar, and Millinga, Daniel v. Hyera, Imelda (Songea) High Court Civil Appeal No. 30 of 1992, where the appellate judge stated that although the parties had lived together for more than two years and had acquired the reputation of husband and wife, still they were not married because they did not go through any form of marriage. Rather, they were concubines and were free to come and go as they wished and the courts had no power to grant a decree of divorce. Unfortunately such an erroneous interpretation of s. 160 (LMA) has the effect of increasing, rather than reducing the number of children born out of wedlock.Google Scholar

⁴² Leticia Bagumba, op. cit.

⁴³ This is the test applied by Nyalali, J., (as then he was) in Elizabeth Salwiba v. Peter Obara [1975] LRT 52.Google Scholar

⁴⁴ S. 59 (LMA) states that where “any estate or interest in the matrimonial home is owned by the husband or by 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, gift, lease, mortgage or otherwise and the other spouse may 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.” And where this is done in contravention of the above restriction, then, unless the buyer had no notice of the other spouse's interests, “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: (a) the marriage is dissolved; or (b) the court on a decree of separation or an order for maintenance otherwise orders.”

⁴⁵ In my view, s. 160 could be amended to permit parties to such unions to apply jointly for the registration of the marriage once they have fulfilled the conditions laid down by s. 160 (LMA). At the moment one or both parties can apply to the court (s. 94 LMA) for a declaratory decree that they were validly married. However, such a remedy is hardly affordable by most couples and, seemingly, it is only pursued when there is a marital problem. See Yonathan Gwandenga v. Kastanti Daniel (DSM) High Court Civil Appeal No. 70 of 1994 (unreported), per Kyando, J. In this case a man applied to the court to be declared a husband “by virtue of long cohabitation together, and secondly, and perhaps mainly, that he be given a share of the house.” This is one of the very few cases where the man moved into his partner's house and sought to rely on s. 160 to secure division of assets.Google Scholar

⁴⁶ [1982] TLR 333.

⁴⁷ Interestingly, the court in Salum Itandala does not discuss the welfare of the child as stipulated under s. 125 (LMA). Chipeta, J., merely held that the “appellant, therefore, is entitled to claim custody of those children. The respondent has no right over them.” This looks like an application of the customary rules of guardianship whereby all legitimate children belong to the husband's clan. See Declaration of Customary Law, Rule 175, Government Notice No. 279 of 1963. This was indeed a fitting case for the application of the best interests of the child principle as provided under s. 125 (LMA).’Google Scholar

⁴⁸ [1975] LRT 225.

⁴⁹ [1982] TLR 304, 306.

⁵⁰ Ibid. “If any evidence is adduced showing that either of the parties lacked capacity, the presumption in favour of the validity of the marriage disappears and the question has to be decided on a balance of probability in the light of all the available evidence.” Based on the English authorities, see Bromley, P. M. and Love, N. V., Bromley's Family Law, London, 1992, 68Google Scholar. But, as I have argued elsewhere in this article, the injustice arising from the inapplicability of s. 160(2) (LMA) to couples lacking the initial capacity to marry can be avoided by amending the LMA to grant courts the jurisdiction to order division of assets, maintenance and child custody, in all cases of void marriages. See also Rwezaura, B., “Presumption of marriage in Tanzania,” (1985) 18 Verfassung und Recht in Ubersee, 169–179, 179.CrossRefGoogle Scholar

⁵¹ Thadeo Mutarubukwa v. Hermalinda Herman (Mwanza) High Court Civil Appeal No. 60 of 1991. In this case, the woman cohabitant had contracted a Christian marriage in 1949 and thereafter she believed that she had been validly divorced under customary law. On that basis she remarried in 1961 and the second marriage lasted till 1991 when she petitioned for divorce and division of matrimonial assets. This was therefore a “class three” union. The lower court, with the full knowledge of all the facts, held that the parties had acquired the reputation of having been married to each other as stipulated under s. 160, but that their marriage had broken down irreparably and therefore s. 160(2) was applicable. The lower court seems to have found an ingenious way of doing substantive justice by trying to involve s. 160(2) but for the fact that lack of initial capacity to marry which effectively blocks the application of s. 160(2).Google Scholar

⁵² Cited above, n. 43.

⁵³ This is a correct interpretation of s. 160(2) because “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.”

⁵⁴ Francis Leo v. Paschal Simon Maganga [1976] LRT n. 22. The facts in Francis Leo are comparable to those in Salum Itandala (see above, n. 47). In this case the action was also brought by a father-in-law claiming legitimation fee in respect of five children born during a ten-year period of cohabitation between the respondent and the claimant's daughter. As in Salum Itandala, it became necessary to determine whether the respondent was married to the claimant's daughter.Google Scholar

⁵⁵ See for example, Elizabeth Salwiba v. Peter Obara [1975] LRT, 52Google Scholar, Ramadhani Mohamed v. Omari Ramadhani [1976] LRT 8, and Leticia Bagumba (see n. 30)Google Scholar. Mfalila, J., accepted this position in Elizabeth Ismail v. Melikizedek Haruni [1982] TLR 322. See also Rwezaura, “Presumption of Marriage in Tanzania,” op. cit. 169 179, 169.Google Scholar

⁵⁶ “The parties were concubines and lived together under circumstances that in their community they acquired the reputation of husband and wife thus attracting the provisions of s. 160 [LMA] 1971”. See above, n. 41.

⁵⁷ Joseph Sindo v. Pasaka Mkondola (Mtwara) High Court Civil App No. 132 of 1991 (unreported).Google Scholar

⁵⁸ Adding that “[a]s they have freely agreed to cohabit, they are likewise free to depart or separate from each other without resorting to a court order. A court has no power to grant a decree of divorce under the circumstances of this case …“ at 1.

⁵⁹ See Itandala, Salum, above, n. 46, 335.Google Scholar

⁶⁰ (1971) High Court Digest n. 257. In this case the husband applied for custody of children born during the marriage. The children's mother denied the existence of the marriage on the ground that the husband had not paid any bridewealth to her natal family. The lower court held for the wife but the husband successfully appealed to the District Court where it was held that long cohabitation raises a strong presumption of marriage.

⁶¹ (1971) High Court Digest, n. 33. In this case the parties cohabited for six years during which the husband was not able to complete the payment of the whole bridewealth. Thereafter the wife's natal family tried to break up the union unless the husband paid up the outstanding balance. It was held by the High Court (Kwikima, J.) that the strong presumption in favour of the marriage had not been rebutted by the wife's natal family.

⁶² Ironically, the notion of “sanctity of marriage” is used here by Kwikima, J., to uphold the validity of a de facto union while the LRC takes the opposite position that s. 160 is an “unnecessary encroachment on the sanctity of marriage …” It appears, however, that the comments of the LRC are directed primarily at “class three” unions while Kwikima, J., seems to refer to “class one”.

⁶³ Governor's Appeal Board No. 7 of 1944.

⁶⁴ See Government Notice No. 279 of 1963, Rule No. 5.

⁶⁵ S. 9(3A) of the Judicature of an Application of Laws Ordinance (Cap. 453) states that “notwithstanding the provision of this Act the rules of customary law and the rules of Islamic Law shall not apply in regard to any matter provided for in the Law of Marriage Act, 1971”.

⁶⁶ See Katapa, R. S., “Arranged marriages,” in Tumbo, Z. and Liljestrom, R. (eds.), Chelewa Chelewa: The Dilemma of Teenage Girls, Ostersund, 1994, 76–95.Google Scholar

⁶⁷ See Hyde v. Hyde and Woodmansee (1866) LR 1 P & D 130, at 133.Google Scholar

⁶⁸ This is in contrast to the law in England after 1973 when lack of consent, previously a ground for making a marriage void, now makes a marriage only voidable. See s. 12(c) Matrimonial Causes Act 1973 and Bromley and Lowe, op. cit. 90.

⁶⁹ See United Republic of Tanzania, above, n. 16, 7.

⁷⁰ See LRC above, n. 1, 25.

⁷¹ This is so notwithstanding the fact that cohabitants who do not wish to be presumed married are not compelled to do so by s. 160(1).

⁷² See Kaisi, op. cit. 130.

⁷³ See Sawyerr, G. F. A., ‘Judicial manipulation of customary family law in Tanzania,” in Roberts, S. (ed.), Law and the Family in Africa, The Hague, 1977, 115–128, 115Google Scholar, and Armstrong, A. et al., “Uncovering reality: excavating women's rights in African family law,” (1993) 7 International Journal of Law and the Family, 314–369.CrossRefGoogle Scholar

⁷⁴ See Loijurusi Ndiiga, above n. 61.

⁷⁵ Sec LRC, above, n. 1, 22.

⁷⁶ Most people in rural communities do not have the time or inclination to travel a long way to register their marriage with a state official. It has therefore been recommended by the LRC that a village-level official be appointed as the registration officer to achieve greater efficiency in the registration process. In Mozambique, the Family Law Project recommended the establishment of a mobile registration centre to enable a more efficient system of registration. See Sachs and Welch, op. cit. 103.

⁷⁷ During the late 1980s, in the Kagera region of Tanzania, one Roman Catholic priest who had observed that several young Christians were eloping and simply living together without undergoing a church wedding decided to convene a parish meeting at which he inquired why young people were not celebrating their marriage in church. He was told that parents could not afford marriage expenses associated with a church wedding. After some discussion it was agreed that all the existing cohabitants should be married at one ceremony, followed by a wedding party at the parish. In more recent years certain members of the clergy have spoken against lavish wedding parties which, apart from being wasteful, also tend to discourage other less affluent couples from marrying. Archbishop Kakobe of the Full Gospel Faith Bible Fellowship joined 50 couples into matrimony in a single ceremony at Mwenge, in Dar es Salaam. Previously in 1996, he is also reported to have “staged a joint wedding ritual for 60 couples” at the same church. See Robert Rweyemamu, “Bringing costcutting to the wedding day,” The Natwn, 2 October, 1997. It is suggested that the law ought to be amended to permit a joint application for registration by couples falling in “class one” and “class two” unions as soon as they have complied with the requirements of s. 160(1) (LMA). Those who do not wish to register because they prefer to retain their status as cohabitants could still benefit from s. 160(2) at the termination of their unions.

⁷⁸ See Kabeberi-Macharia and Nyamu, above, n. 23, 22.

⁷⁹ Ibid. at 3.

⁸⁰ Ibid. at 24.

⁸¹ Bi Hawa Mohamed, above, n. 5.

⁸² Above n. 39.

⁸³ See Amida Shabani v. Alfani Mtenga [1981] TLR 232. Indeed, it is uncertain whether the court has the power to order custody of children in such circumstances. Yet as noted below, this problem has now been addressed by judicially extending the principle of the welfare of the child to all children irrespective of the marital status of their parents. See Rwezaura, above, n. 6, 323. In my view, since a voidable marriage “is for all purposes a valid marriage until it is annulled by a decree of the court” (s. 40 LMA), there is in principle no reason why a decree of nullity in such circumstances should not be construed as analogous to a decree of divorce. Note that Amida Shabani was also a “class three” de facto union involving a woman who, it seems, did not formally divorce her first husband before “purporting to marry” her second husband.Google Scholar

⁸⁴ Originally contained in the Matrimonial Causes Ordinance Cap. 364 based on the English Matrimonial Causes Act of 1937.

⁸⁵ See Cretney, S., Elements of Family Law, London, 1992, 28, and Bromley and Love, op. cit. 720.Google Scholar

⁸⁶ A number of interesting changes intended to improve the status of all children (including illegitimate children) have been proposed to the government recently by the LRC but these have yet to be widely debated and enacted. See United Republic of Tanzania, Hotuba ya Waziri wa Sheria na Mambo ya Katiba (The Budget Speech by the Minister of Justice and Constitutional Affairs for Tear 1997/98 to the Parliament of the United Republic of Tanzania), Dar es Salaam, 1997, at 59–88Google Scholar. Furthermore, unlike Uganda which has made an effort to update and integrate existing child law in line with its international obligations, the recent Tanzanian proposals have merely added new provisions to existing laws on the child without making major reforms. See also Read, J. S., “Protecting Uganda's children: a new model child law for an African state?” (1993) 5 Journal of Child Law, 170–177.Google Scholar

⁸⁷ Under art. 2(1) parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Tanzania became a party to the Convention on 10 July, 1991.

⁸⁸ Kaisi found a marriage register at a Roman Catholic Church in Dar es Salaam showing that between 1986 and 1992, a total of 120 couples had lived together as husband and wife before celebrating their marriages in church. See Kaisi, op. cit. 144.

⁸⁹ See Rashidi, Halima v. Peter, Amon, High Court Civil Appeal No. 34 of 1993 (22/3/93) per Maina, J. See also Rwezaura op. cit. above, n. 6, 534.Google Scholar

⁹⁰ The law of inheritance is currently under review and it is believed that the intended reforms will further narrow the gap between marital and non-marital children in the area of intestate succession. See Rwezaura, Ibid. 523 and Tanzania, above, n. 86, 69.

⁹¹ See above, n. 63, 60 and 61 respectively.

⁹² Rule 94 states that “if a man and a woman have started a common household together, the property which has been acquired by common effort [will be] divided as follows … “ Then follows details as to how this should be done.

⁹³ See for example, Eves v. Eves [1975] 3 All ER 768 and Grant v. Edwards, [1986] 2 All ER 426 and more generally Bromley and Lowe, op. cit. 555–584.Google Scholar

⁹⁴ See s. 9(3A) cited at n. 65 above. It follows that such rules would apply in any matter not covered by the LMA.

⁹⁵ In fairness to the LRC, I should stress here that the LRC's views appear to be derived from the various studies and public consultations that it undertook in the preparation of its report. Nonetheless, it would be difficult for the LRC to distance itself totally from its own report and its interpretation of the various opinions that it collected.

⁹⁶ See LRC, above, n. 1, 31.

⁹⁷ Ibid. at 31.

⁹⁸ Ibid. at 31.

⁹⁹ See above, n. 54.

¹⁰⁰ It is also important to remember that some of these subsisting statutory marriages are probably “empty shells” and are no longer considered alive even by the parties themselves. Some of these exist only because no formal steps have been taken to dissolve them.

¹⁰¹ Msiwao, Theresia v. Mohamed, Mwamba (DSM) High Court (PC) Civ App No. 10 of 1978 (unrcported).Google Scholar

¹⁰² “The Commission is not certain whether or not this is the correct interpretation … contemplated in the Government Paper No 1 of 1969.” See LRC, above n. 1, 33.

¹⁰³ Ibid. at 144.

¹⁰⁴ Ibid. at 145.

¹⁰⁵ Ibid. at 146.

¹⁰⁶ Ibid. at 51.

¹⁰⁷ The elders stated that, “as things are nowadays, our children do not even care whether their parents are informed of their intended marriage or not. As a result they don't even marry but end up in cohabitation only on ‘flimsy excuses’ such as hard economic situations, or they have no dowry or that they are not yet economically ready to marry, of which we had never heard of in the past.” See Kaisi, op. cit. 151. Clearly therefore, there is a wide gap between the views of the elders and those of the youth.

¹⁰⁸ Ibid. at 147.

¹⁰⁹ Ibid. at 147.

¹¹⁰ Ibid. at 138.

¹¹¹ See Kaisi, op. cit. Mwaikasu, J., the former chairman of the Law Reform Commission of Tanzania, did not chair the committee which recommended the repeal of s. 160 (LMA). This committee was chaired by Nsekela, J., a former chief corporation counsel of the Tanzania Legal Corporation who is now a judge of the High Court.

¹¹² Ibid. at 139.

¹¹³ See Rwezaura, B. “Changing community obligations to the elderly in contemporary Africa,” in Eekelaar, J. M. and Pearl, D. (eds.), An Aging World: Dilemmas and Challenges for Law and Social Policy, Oxford, 1989, 113.Google Scholar

¹¹⁴ See Kaisi, op. cit. 139.

¹¹⁵ See Wanitzek, op. cit.

¹¹⁶ See Stone, L., Road to Divorce: A History of the Making and Breaking of Marriage in England, Oxford 1995, 121–137.Google Scholar

¹¹⁷ In July, 1997, the Minister for Justice and Constitutional Affairs reported to the Parliament that the LRC proposals, including its recommendation to repeal s. 160, would be opened for wider public discussion in the near future. According to the Minister, considering that family law and the law of inheritance affect people's religious beliefs, cultures and human rights, it will be necessary to seek wider consensus within the community before definite statutory changes are finally presented to parliament.