Family law dodoma

Lwijiso O. Ndelwa: FamilyLaw
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THE UNIVERSITY OF DODOMA
COLLEGE OF HUMANITIES AND SOCIAL SCIENCES
SCHOOL OF SOCIAL SCIENCES
DEPARTMENT OF LAW
LECTURE ON FAMILY LAW
BY
LWISIJO O. NDELWA

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End user:
MIKIDADI AHMED

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Mr. Mikidadi Ahmed, a third year LL.B Student at University of Dodoma

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1. INTRODUCTION
1.1 The scope of family law
The term family is the term which is difficult to be defined precisely, it has
various meanings: According to Oxford Advanced Learner’s Dictionary family
means a group consisting of parents and their children or a group consisting of
parents, their children and close relatives. In another sense it means all blood
relations who are descended from a common ancestor or all members of the
household, including husband and wife, children, servants and even lodgers. At
its narrowest it may describe a father, a mother and young children, but it has
much wider meanings too as it may include other relatives, adopted and fostered
children, and (increasingly these days) cohabitants of different sexes. But so far
as family law is concerned all these above definitions are too wide and therefore
not much useful due to the fact that descending from a common ancestor does
not per se affect the legal relation of the people at all, though it is relevant for the
purpose of intestate succession also the relationship between the head of the
household and the servants or lodgers is basically contractual and therefore lies
outside the scope of family law.
For the purpose of family law family is regarded as the basic social unit which
consists normally of a husband, wife and children. It is not essential that all these
should be members of the family at the same time as for instance husband and
wife are considered to comprise a family before the birth of the children or after
all the children has left home to marry and establish their own families even
when they remain childless for the rest of their lives. Other families may consist
of child or children living only with one parent for example when the other has
died or when the unmarried woman living with the children also adopted and
fostered children, and (increasingly these days) cohabitants of different sexes
For instance in the English case of Dyson Holdings v Fox1, in this case M and W
lived together for some forty years, and W was known as "Mrs. M" although they
were never actually married. Their home was rented in M's name, and the
tenancy was protected by the Rent Acts. After M's death, W remained in
occupation until the landlords PP discovered her unmarried status and sought
possession. The Court of Appeal dismissed PP's claim and said W was entitled to
take over the protected tenancy as "a member of M's family"; the words should
be given the sense that would be given to it by the ordinary man in the street,
rather than a narrow meaning based on a legal marriage.
1
[1975] 3 All ER 1030, CA

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Family law is generally the study which is understood to deal with the creation,
legal consequence, and protection (both physical and financial) of family
members. It is concerned with marriages thus relationship between spouses, and
between parents or guardians and children. Under common law family law is
mostly concerned with nuclear family and members of the extended family have
some rights and come into picture occasionally, as do local authorities chiefly in
the child protection. Generally family law incorporates law of marriage and the
law of succession or inheritance. Law of marriage regulates how people enter
into marital contracts as there are procedures and formalities stipulated by the
law on how to conclude marriage agreement, duties of the marriage parties and
the consequence of the broken marriage.
In Tanzania there is the Law of Marriage Act no 5 of 19711. This Act regulates the
law relating to marriage, personal and property rights as between husband and
wife, separation, divorce, succession matters and other matters connected
therewith and incidental thereto. This Act was passed as a result of the
recommendation of the of the white paper thus the Government proposal on
Uniform Law of Marriage Government paper No 1 of 1969.
Law of succession in Tanzania: There is no single law of succession thus there are
number of laws applied in the country these are Islamic law, Customary laws,
Statutory laws some of them borrowed from India. As for the customary law
they were codified in the Customary (Declaration) Order GN 279/1963.
1.2 The concept of marriage
Marriage is an agreement by which a man and a woman enter into a legal
relationship with each other and which creates and imposes mutual rights and
duties2. According to Section 9(1) of the Law of Marriage Act of 1971 “marriage
means the voluntary union of man and a woman intended to last for their joint
lives”. From this Section there are three elements of a valid marriage these are
first marriage must be a voluntary union. For that reason the marriage which
was contracted without free consent of either of the party is null and void. Where
the marriage polygamous its arrangement require the consent of each and every
woman. Second marriage must be the union between a man and a woman thus
marriage must be heterosexual union, therefore under our law the union of
people of the same sex whether have performed surgical to acquire the sex
cannot validate the marriage. Also this element does not mean that polygamous
marriages are not recognized in Tanzania, they are recognized provided that the
consent of each spouse is sought and thus be the marriage between a man and a
1 Cap 29, Revised Edition 2002( LMA)
2 Kaisi, C. O. (1994). Women Under Presumption of Marriage

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woman (given the fact that it is difficult for a man to marry all women in
polygamous marriage at once). Third marriage must be intended to last for the
rest of the joint lives of the parties thus there can be no temporary marriages,
marriage should be intended to last for life.
According to cannon law, Marriage is a conjugal union of a man and woman,
which arises only from the free consent of each spouse, but this freedom relates
to the question whether two persons really wish to enter into matrimony1.This
definition provides also that free consent is the vital element in valid marriage
contract.
Common law provides the classical definition of the term marriage in the case of
Hayde v. Hayde2; in this case Lord Penzance states that “I conceive that
marriage, as understood in Christendom, may….be defined as the voluntary
union for life of one man and one woman to the exclusion of all others". In that
concept marriage must be voluntary, heterosexual and monogamous thus
neither spouse is allowed to contract another marriage as long as the original
marriage exists but this element does not have place in Tanzania since the law
recognize polygamous marriages3, and for life thus the law does not recognize
any fixed-term contract as creating a valid marriage the correct meaning of
condition was explained in the case of Nachimson v. Nachimson4, where it was
pointed out that “it must the parties’ intention, when they entered into the
marriage, that it should last for life-in other words, it must last for life unless it is
previously determined by a decree or some other act of dissolution”. Marriage is
unlike any other contract, in that its terms are laid down by the state and not by
the parties themselves, nor can the parties by themselves agree to its termination.
Monogamous marriage; this is the union or a marriage between one man and
one woman. Section 9(1) of the Law of Marriage Act of 19715 defines
monogamous marriage as a union between one man and one woman to the
exclusion of all others. That is to say for example once this marriage is entered
(usually Christian and civil marriages are expected to be monogamous
marriages) if the husband was to take another woman to live with even for many
years that relationship will not be recognized by law as marriage, in this
therefore there is no obligations or rights to that other woman. No one will
benefit from the marriage benefits under the law.
1 Diwan, P (2000). Family Law (5th ed). Allahabad Law Agency. P 25
2 (1866) LR1 P D 130
3 Law of Marriage Act Section 10(1) (b)
4 (1930) CA 217
5Cap 29 Revised Edition 2002

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Polygamous marriage; is the fact or condition of having more than one spouse at
once. Section 9(3) of the Law of Marriage Act defines polygamous marriage that
“is a union in which the husband may during the subsistence of the marriage, be
married or marry another woman or women. It should be noted that according
to our law the person who can marry more than women is a man. In our
Tanzania polygamous marriages are practiced under customary law and Islamic
law this is provided for under Section 10(2) (a) of the Law of Marriage Act1
which provides to the effect that “a marriage contracted in Tanzania whether
contracted before or after the commencement of this Act, shall if contracted in
Islamic form or according to rites recognized by customary law in Tanzania, be
presumed, unless the contrary is proved, to polygamous or potentially
polygamous. Christian marriages are monogamous and the same cannot be
converted to polygamous marriage this is provided by the Law of Marriage Act
Section 11(5)2 . It is prohibited for women to marry more than one man this is an
offence termed as polyandry. The term polygamy is it is often used as a synonym
for polygyny (marriage to more than one woman), which appears to have once
been common in most of the world and is still found widely in some cultures.
Polygyny seems to offer the husband increased prestige, economic stability, and
sexual companionship in cultures where pregnancy and lactation dictate
abstinence, while offering the wives a shared labour burden and an
institutionalized role where a surplus of unmarried women might otherwise
exist. The polygamous family is often fraught with bickering and sexual jealousy;
to preserve harmony, one wife may be accorded seniority, and each wife and her
children may have separate living quarters. Polyandry is relatively rare; in parts
of the Himalayas, where brothers may marry a single woman, the practice serves
to limit the number of descendants and keep limited land within the household3
In the other phenomenon polygamy means a system of marriage whereby one
person has more than one spouse. Polygamy can be of two types. One is
polygyny where a man marries more than one woman, and the other is
polyandry, where a woman marries more than one man. In Islam, limited
polygyny is permitted; whereas polyandry is completely prohibited4.
NOTE: There is a fundamental right of finding a family. One cannot find a family
in his or her owns there should be a father and a mother thus a husband and
wife. The bringing up of children should be balanced thus it is depending on
both father and mother. Mere tendencies of mother are not enough for the
1 Cap 29 Revised Edition 2002
2 ibid
3 http/ www. answers.com/topic/plural marriage? Britannica Concise Encyclopedia. retrieved in
30th July 30, 2007
4 http://www.irf.net/irf/dtp/dawah_tech/mcqnm1.htm.retrieved in 30th July 30, 2007

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upbringing of children and the father tendencies is not enough for the proper
upbringing of children.

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2. MERRIAGES DURING PRE-INDEPENDENCE PERIOD
This includes the African societies which existed before the coming of the
colonialism in Africa and during colonialism.
In the pre-colonial society, marriage was regarded as a transaction giving rise to
reciprocal rights and obligations between two groups of kinsmen and binding
those groups together in a relationship, which remains effective beyond the life
time of the original individual spouses1. Therefore it was important relationship
because it ensured the continuity of lineage and was a source of labour and also a
means of establishing wider, political and economical ties between the groups2.
Therefore it follows that the participation of the larger social group in the whole
process heading to marriage was both essential and consequential. In these
societies there was a profound interest and involvement of the families of the
marriage contracting parties in the arrangement and effectiveness of the
marriage. Normally parents did participate in the arrangement of marriage their
involvement was aimed at effecting and making sure that the marriage is stable
and respectable. Parental consent as opposed to individual consent was of
utmost importance. There were customary marriages. At one time one Nigerian
author Obi defined customary marriage as a union of man and women for the
duration of woman’s life being the gist a wider association between two families
or set of families. Why for the duration of woman life? Because under customary
law there was a custom of inheritance of the widow wife after the husband has
died. If she died first then that could be end of the marriage. In some societies the
husband of the deceased wife could marry another lady of the deceased family to
take care of the deceased children.
2.1 Characteristics of traditional African marriages
1. The marriage was for the creation of children and extension of kinship. Thus
the basic expectation of the marriage was to get children and expansion of the
kinship. Therefore the man and the entire society choose a fertile woman who
will bear many children as marriage enables the lineage to expand itself.
2. Marriage was characterized by parental consent as opposed to the consent by
individual parties contracting marriage. Thus in most of the societies the parents
of the prospective couple consent as to the marriage of their child. Due to this
fact the degree of individual voluntariness of the parties to the contract of
marriage was minimal, as they could not contract marriage on their own since
they had no wealth which they could pay as bride price. Also it was difficult for
1
Philips, A. (1961) Survey of African Marriage and Family life, an introductory essay
2
Rwezaura, B.A. (1985). Traditional Family Law and Change in Tanzania. Nomos Kergasgeseuchaft,
Baden- Basten. P. 51

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the marriage to be contracted between families with long standing feuds as the
marriage involved the formation or consolidation of political, social and
economical alliances between larger groups there fore parents determine the
unions of the children with those with those parties with whom they were on
friendly terms. However in some circumstances marriage could take place
between parties who had long standing feuds as a means of ensuring end of the
war or feuds.
3. The marriage was to provide labour because the wife joins the husband’s
family and so the labour was added. A man with many wives was seen to have a
key labour power. Marriage was also seen as a production of labour thus the
more the children the more the labour power.
4. Profound interest and involvement of the families of the marriage contracting
parties in the arrangement and effectiveness of the marriage. Normally parents
did participate in the arrangement of marriage the involvement was aimed at
effecting and making sure that the marriage is stable and respectable.
-The nature of the marriage contract was not between the two individuals but
between their families. This was in the sense that the prospective husband’s
family participate in the finding of the wife, entire family participated in the
contribution of the bride price, the entire husband’s family participated in the
discussion with the prospective wife’s family. Also the whole family participated
in the marriage ceremony.
-Where the woman could not conceive this was the entire family issue thus the
family will have the husband to have the new wife who will bear children and
children born out of the new wife belong to the first wife.
5. There was payment of dowry (bride price). This was present mostly in the
patrilinear societies. This was one of the fundamental characteristics of marriage
in the sense that marriage was not valid and was regarded as concubinage if the
dowry was not paid.
Reasons for the payment of bride price
-Bride price was paid so as to legitimize children thus children born out of that
marriage to be legitimate.
-To transfer wealth from one family to another family. Given the condition that
one family feel like loosing a member of the family who was the source of labour.
-The payment of bride price also enables the husband to acquire the rights from
the wife for example consortium rights, sexual rights and damages from adultery
thus the husband has authority to demand damages from a person who make
sex with his wife.
-The bride price gave the husband authority and rights over all children resulted
from the marriage not withstanding conceived from another man. There was a

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concept that children born out of wedlock belong to the maternal family this was
also provided under the Customary Law Declaration Rules GN 279 of 1963 Rule
78. The case of Amina Rashid v. Ramadhani provides to the effect that children
born out of the wedlock belong to the maternal and children born during the
subsistence of the marriage belong to the husband notwithstanding that the
woman conceived from another man.
6. Marriage ceremony was part and parcel of valid marriage in pre-capitalist
African societies. Marriage without ceremony was invalid. The feature of
marriage ceremony was an overwhelming issue of the whole society.
7. Marriage was one sided exclusive sexual right of a husband in respect of the
wife. The wife was supposed to be tied to one husband only. If the wife commits
adultery then the husband was entitled to demand damages.
8. Often time’s customary marriages have been polygamous or potentially
polygamous thus there is a room to get many wives and the wives were tied to
one husband only. They were potentially polygamous in the sense that the
husband may marry one wife but he was having a chance to marry another wife
or wives at his option.
9. The function of the marriage was to forge wider links and alliances. This was
due to the fact that the pre-capitalistic African societies were very small and
nomadic in nature therefore there was a need to forge to wider links and
alliances.
10. At first marriages were endogamy in nature thus marriage among family
members but later on it changed to exogamy where by they could marry from
other families. Nowadays the concept of endogamy has been prohibited under
Section 14 of the Law of Marriage Act of 1971.
2.2 Types of Customary African Marriages.
i. Polygamous marriage; in this type of marriage there were two forms thus
polygamy and polyandry.
a). Polygamy in this kind of marriage the husband was having more that one
wives at the same time. Most of the pre-capitalist African societies were
polygamous and potentially polygamous. They were potentially polygamous in
the sense that the husband may marry one wife but he was having a chance to
marry another wife or wives at his option and when he marries another wife he
became polygamous.

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The rationale behind polygamous type of marriage was that to enable the man
have more labour power and the biological factor that to provided adjustment if
the husband and the wife could not bear children.
b). Polyandry in this kind of marriage a woman has more than one husband at
the same time. This was not the most common type of marriage but it was
practiced in Central Africa. In Musoma the woman could marry another woman
but this did not involve sexual contact.
ii. Leviratic marriages
This type of marriage happen where the husband died and leaves the woman so
young so members of the family of the deceased husband choose another
member of the family to marry that woman in the name of the deceased
husband. Children born out of that marriage became of the deceased and bear
his name. This type was and is still in common in the lake zone. The wife was not
compelled to accept remarry; she could refuse to be remarried on the condition
that the bride price will be refunded back. The rules have now changed under
GN no 279 of n1963 Rule 62 if the woman does not want to remarry she has two
options; she can either remain in the family of the husband as an independent
member of the family or she can return to his family and no need tom return the
bride price.
iii. Ghost marriages
This type of marriage happen when the man died before attaining the age of
marriage or attained the age of marriage but he did not marry. The family chose
the man to marry the wife in the name of the deceased and bore the children in
his name. The rationale behind this was that the family did not want to loose the
name of their son and get the kin who will inherit his estate.
2.3 FORMS OF PRE-CAPITALIST AFRICAN SOCIETIES
i. Patrilinear Societies
This is the society where a husband plays a predominant role or predominant
part as far as family issues are concerned. This means the rule of the father and
marriage was a necessary aspect to link a father and his children. In these
societies all children belong to the father. In Tanzania they form 80% of all the
societies. In England for instance up to the year 1992 women were having no say
to their husbands and the husband was free to demand sexual intercourse with
his wife at any time and wherever as per the case of R v.R1. Also it was the right
of the husband to chastise the wife, however after the enactment of the Law of
Marriage Act of 1971 the condition changed and it is criminal offence to do so
under Section 66 of the same Act.
1
[1992] AC 559

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ii. Matrilineal Societies
As opposed to the patrilinear societies matrilineal societies are the societies
where the woman played a predominance role as far as family issues are
concerned. In Tanzania they form 20% of all the societies for example the Mwera,
Makua, Zaramo, Kaguru, Luguru, Dunda, Doe and Ngulu. There were other
societies which were matrilineal societies which later moved to matrilineal
societies like Sambaa, Pare and Digo. Also there were some patrilinear societies
with some elements of matrilineal societies like Sukuma. In matrilineal societies
men moved tom women families so far as marriage is concerned. Children
inherited from their mother’s lineage thus succession fall under mother lineage
in maternal uncles.
Matrilineal societies were exogamous and this was extended not only not to
marry member of the family but also not to marry member of the clan. The bride
price obtained out of the matrilineal went to the mother family instead of the
father to accept the bride price uncles accepted the same.
2.4. STATE INTERVENTION IN FAMILY LAW DURING COLONIAL
PERIOD
During pre-colonial period marriage was regulated by clan. During colonial
period state starts to intervene and regulate family law through legislation. In
Tanganyika the Tanganyika Order in Council was enacted in 22nd July 1920 it
established the High Court and Subordinate Courts which were vested with
criminal and civil jurisdiction. Article 24 of the Tanganyika Order in Council
provides to the effect that “customary law was applicable to all civil and criminal
courts with the exception that when the customary law was inconsistent with
justice and morality”. There were native courts which were chaired by chiefs and
their appeals went directly to District Officer.
A) TREND OF COLONIAL JUDGES ON AFRICAN MARRIAGES
In order to understand their views it is important to know how the colonial
judges defined marriage under English law. The concept of marriage as far as
English law is concerned was summarized in the case of Hyde v. Hyde1 in that
case marriage was defined as “ a voluntary union between a man and woman
which is intended to last for life”. From this definition we get three essentials of
marriage thus;
-firstly marriage should be between a man and a woman as distinguished from
African marriages where polygamy was allowed.
-A marriage was to be voluntary and
1
(1866) LR1 P & D 130

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- It must be intended to last for the rest of the life of the couples.
These elements were followed by English judges even when they were deciding
on African marriages. However there was no uniformity in the views of African
judges. These colonial judges tend to adduce the English law of marriage to the
African marriages as here under shown;
In Rex v. Achoda, the colonial judge was to decide on the concept of African
marriage. In this case Achoda an African was charged of murder and stealing
from one Indian. Several pieces of evidence adduced in court but they needed
corroboration and the only person to give corroboration was his wife. The wife
was reluctant to give such corroboration basing on the principle of
compellability. In deciding in this aspect the judge refused to accept the
argument of the wife and noted that to him African marriages were not
marriages because there was no voluntariliness and they were not between one
man and a woman.
In Rex v. Ouma Achala1, in this case Judge Carter comes out with an interested
view about African marriages which overrule the decision of Rex v. Achoda. The
Judge was of the view that when interpreting African marriages regards should
be made to the local circumstances thus marriages should be interpreted
according to the African context.
However in 1917 Uganda amended the law of Evidence in respect of
compellability principle and provided specifically that for a couple not to be
compellable they must be on a monogamous marriage. In other East African
jurisdictions no amendments were made but colonial judges went down with
their trend.
In the case of R v. Amkeyo2, Hamilton, J insisted on the concept of marriages as
applicable in English law as summarized in Hyde v. Hyde. He said that “‘a
customary marriage’ was not ‘real marriage’ but rather a wife purchase as such
marriage as such marriage could not be equated to civilized marriages”. Lord
Hamilton in this case also attacked the concept of parental consent in customary
marriages saying that a woman is not a free contracting agent but is regarded
rather in the nature of chattel, for the purchase of which a bargain entered into
between the intending husband and the father or nearest man relative of the
woman. To him using a word marriage to the Africans was a misnormal the
correct word was a wife purchase, since African women are not free agents were
1
(1915) ULR 152
2
(1917) 7 EALR 14

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like chattels this was so because women were not free to decide as bargaining
took place in their absence and the husband could purchase more wives.
This position was settled in the case of Mawji v. R1, in this case the Privy Council
emphasized the point that marriage means monogamous marriage and restate
the principle of the case of Hyde v. Hyde2 but the court went in confining that
this was as far as English law was concerned and when deciding in African
marriage cases regard should be made to the local circumstances thus in the
customary and Islamic laws applicable in that time.
It should be noted that although the colonial state interfered with the concept of
marriage as opposed to the pre-capitalist era African customary marriages
survived up to now.
B) THE POSITION OF COLONIAL JUDGES ON ISLAMIC MARRIAGES
Their views were just the same as inn customary marriages. Islamic marriages
were recognized by the Tanganyika Order inn Council and the Zanzibar Order in
Council for those East Africans residing in Mombasa which at that time was part
of Zanzibar. Special courts were established to deal with Islamic marriages these
were called Kadhi Courts.
Despite all these recognitions courts of Tanganyika. Kenya, Zanzibar and
Uganda were reluctant to recognize Islamic marriages. Judges said that they
were not competent to deal with Islamic marriages because they were not taught
to deal with Islamic law they were taught English law.
In order to remove this confusion Kenya enacted Mohammedan Marriage
Divorce & Succession Ordinance to compel the judges to recognize Islamic law
and marriages. It was specifically provided that the High court of Kenya was
competent to enforce Islamic laws. In Tanganyika there was another problem
thus Asians marriages especially for those Asians who were non Christians this
problem was noted in the case of Fatma Bacho v. Majothi3 ,where the court said
that it has no jurisdiction to entertain cases arises out of non Christian Asians.
Christian marriages were recognized under the Christian Marriages Act.
1
[1957] AC 126; 23 EACA, 609(T)
2
(1866) LR 1 PD 130
3
(1946)

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3. EFFORTS FOR THE UNIFICATION OF CUSTOMARY LAW AND FAMILY
LAW IN TANZANIA.
In order to cure the effects left by colonial state there was a need unify the
customary law and family law. Customary law was codified and put under the
Government Notice no 279 of 1963; this became official customary law in
Tanzania. Rule 3 of this Declaration of Customary law bride wealth was declared
no longer necessary for the validation of a customary marriage.
There was also unification of family law, after independence the government
initiated efforts to unify family law. This was due to the fact that during colonial
period Christians were having their own Statute the same to Muslims and
Asians. In 1969 via the White paper no 1 it was recommended that a one uniform
law which regulate family issues or marriage issues should be enacted. As a
result the Law of Marriage Act of 1971 was enacted. The Act was meant to
accommodate all types of marriages contracted under such multiplicity of law. It
was a uniting law that was required to eradicate the multifunctional laws of that
time (footnote). This Act of parliament recognizes different systems of
marriages such as Islamic, customary and Christian marriages. The Act also took
the principle in Hyde v. Hyde1 but only for Christian marriages. Following the
amendment of the Judicature and Application of Laws Ordinance by virtue of
Section 9(3) which 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 under the Law of Marriage Act”. The LMA attained
overriding status over Islamic and customary law. For instance Section 41(a)2
removed payment of dowry as a necessity for the validation of the marriage, the
Section states that “a marriage which in all respects complies with the express
requirement Act shall be valid for all purposes, notwithstanding any-compliance
with any custom relating to dowry or the giving or exchanging of gifts before or
after marriage.”
The Act has 167 Sections and is divided into eight parties’ namely part I provides
for the preliminary provisions, part II deals with marriage its nature, restrictions
on marriage, preliminaries to marriage, contracting of marriage and void
ceremonies, voidable marriages ad legitimacy, part III deals with registration of
marriages, annulments and divorces and evidence of marriage, part IV provides
for the property, rights, liabilities and status of the parties to the marriage, part V
deals with miscellaneous rights of action, part VI deals with matrimonial
proceedings, part VII provides for the offences relating to family law and part
VIII provides for miscellaneous provisions.
1
(1866) LR 1 PD 130
2
Law of Marriage Act Cap 29 [RE 2002]

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4. FORMATION AND NATURE OF MARRIAGE
4.1 Marriage as a contract
Marriage is similar to other contacts thus commercial contracts in terms of
obligation and duties which arises after it has been formed. It is stated that
marriage cannot be differentiated from commercial contracts in terms of
obligations and duties cropping-up after it has been formed1. It creates
bidingness and obligations of which every spouse should do. Under common
law marriage is viewed as an agreement by which spouses enter into certain
legal relationship with each other which creates and poses mutual rights and
duties. There fore marriage is clearly a contract and it presents comparable
problems to commercial contract, for example form and capacity2 and like other
contracts it may be void or voidable. In order for a man and woman to form a
contract of marriage thus to be husband and wife they must satisfy two
conditions; first they must both posses the capacity to contract a marriage for
example competence in terms of age3 and secondly they must observe necessary
formalities. Capacity to marry is determined by the law and as a general rule lack
of capacity to contract a marriage renders the marriage void.
There are differences between marriage and commercial contracts in the
following aspects; the law relating to the capacity to marry is quite different from
that of any other contract for example the person under the age of eighteen is
eligible to marry under Section 13 of the Law of Marriage Act4 while under the
Law of Contract a minor thus the person under eighteen years is not eligible to
make a contract5. Also a marriage may only be contracted if special are carried
out for example according to the Law of marriage Act6 provides that every
marriage shall be contracted in the presence at least two witnesses. Apart from
these two differences also the grounds on which a marriage may be void or
voidable are for the most part completely different from those, on which other
contracts may be void or voidable, unlike other voidable contracts; a voidable
marriage cannot be declared void ab initio by repudiation by one of the parties
but may be set aside only by a decree of nullity pronounced by court of
competent jurisdiction. A contract of marriage cannot be discharged by
agreement, frustration or breach. Apart from death marriage can be terminated
only by a decree of dissolution (or divorce) pronounced by a court of competent
jurisdiction. Lastly but not least marriage is unlike any other contract, in that its
terms are laid down by the state and not by the parties themselves. These are
1 Cretney, S. M (1992). Elements of Family Law. (2nd ed). London: Sweet & Maxwell. P 1
2 Bromley, P.M. & Lowe, N.V. (1992). Family Law (8th ed). London: Butterworth p 22
3 Section 13(1) of the Law of Marriage Act [RE 2002]………… marriage desirable.
4 Ibid
5 The Law of Contract Act section 11
6 Section 27

18
some of the differences between marriage and commercial contracts there might
be other differences.
4.2 Contracts to marry
A marriage is often, although by no means invariably, preceded by a contract to
marry or a promise to marry. The contract to marry is sometimes referred to as
engagement. It is after the fulfillment of this promise to marry that the parties
will have a marriage contract. A contract to marry is an agreement where parties
agree to undertake or make a marriage in the near future or a reasonable future
time after the agreement. It is no more than an agreement between prospecting
spouses that they will marry at some (often unspecified) future date. As a general
rule under common law these agreements are regarded as contracts and they are
governed by the same rule of laws as other contracts, provided there was an
intention to enter into legal relations and their legal consequences are not
different from commercial contracts where the party in breach may be sued for
damages. But as a result of their highly personal and non-commercial nature,
they posses certain peculiar characteristics.
Under common law the contract to marry usually takes the form of mutual
promise to marry, so that each party’s is the consideration for a reciprocal
promise made by the other. But so long as a promise to marry is supported by
some kind of valuable consideration, it will be enforceable even though the
promisee did not in turn make an express promise to marry the promisor. This
was emphasized in the case of Harvey v. Johnston1 ,where it was held that the
defendant could be sued on a promise to marry the plaintiff made in
consideration of the plaintiff going to Ireland at the defendant’s request to marry
him. There is no particular form which is required for a contract to marry. The
contract to marry must be distinguished from other personal relationships in the
fact that in a contract to marry there must be marriage objective.
The Law of marriage Act position in relation to the contract to marry match to
that of common law in the sense that it recognized the right to damages for the
breach of promise of the marriage Section 69(1) states that “a suit may be brought
for damages for the breach of a promise of marriage made in Tanzania whether
the breach occurred in Tanzania or elsewhere…”
4.2.1 Capacity to enter into a contract to marry
Section 69(1) (a) provides to the effect that the action for the breach of contract to
marry may not be brought against the party who was bellow the age of eighteen
1 (1848), 6 C. B. 289

19
years of age. This provision seems to contravene Section 13 (1) of the LMA which
provides to the effect that the minimum age for the woman to contract the
marriage is fifteen years. Also Section 13(2) of the LMA the court can grant leave
for a marriage where the parties are, or either of the is below the age of eighteen
years provided that it has satisfied itself that there are special circumstances
which make the proposed marriage eligible. For instance in the case of Shabir
A.M. Virji1 the court grant the leave to marry to the boy of 16years to marry the
girl of 18 years on the ground that the two love each other and the boy
impregnated the girl. Section 69 of the LMA is meant to protect minors who may
enter into promises with adult for they are considered unable to give judicious
decision.
The same position is observed under common law whereby the capacity to enter
into a contract to marry is governed by the general law of contract. In common
law the fact that the plaintiff was an infant when the contract was made does not
affect his right to enforce it as per the case of Holt v. Ward2.On the other side if
the defendant was infant, he could not be sued during his infancy as it was
stated in the case of Hale v. Ruthven3.
4.2.2 Limitation of actions for the breach of the promise to marry
The Law of marriage Act4 by virtue of Section 70 provides for the limitation
period for the aggrieved party to bring an action for the breach of the promise to
marry, according to the Section the limitation period is one year. The Section
states that “notwithstanding the provisions of any law regulating limitation of
actions for the time being in force, no suit shall be brought for damages for the
breach of a promise of marriage more than one year after the date of the breach.
4.2.3 Breach of the contract to marry
The breach of a contract to marry occurs where one party to the contract failed to
do what he or she has promised to do at affixed date or any other reasonable
date. As in the case of commercial contracts breach of the contract to marry
breach of the contract to marry may take the form of either non performance
when the time for performance has arrived or of an anticipatory breach before
the time of performance. The breach by non performance may occur for example
when the contract is to marry on a certain day and the defendant fails to turn up.
Also if no specific date was fixed for the wedding the presumption is that the
marriage will take place within the reasonable time and consequently either
party may call upon the other party to perform the promise at any convenient
1 [1971] H.C.D. NO. 407. HC
2 (1732), 2 Str. 937
3 (1869), 20 L.T. 404
4 Cap 29[RE 2002]

20
time as per the case of Harrison v. Cage1 . But before the aggrieved party brings
an action for the breach of the promise to marry by non performance he must
show that he asked the defendant he must show that he asked the defendant to
marry him and that offer was refused2.
Anticipatory breach of the contract to marry occurs where the defendant
repudiates his contractual obligation before the contractual date for the
performance has arrived and makes clear that he or she has no intention of
carrying it out when that time arrive. After such repudiation the plaintiff has an
immediate right of action and he or she need not wait for the contractual time for
the performance before he or she sues. Cockburn, C.J in the case of Frost v.
Knight3 states that: “The promisee has an inchoate right to the performance of
the bargain which becomes complete when the time for the performance has
arrived. In the meantime he has a right to have the contract kept open as a
subsisting and effective contract”. In this case the defendant promised to marry
the plaintiff after his (defendant’s) father died. He repudiated the contract during
his father’s lifetime and the plaintiff sued immediately. It was held that the
plaintiff could recover. Therefore the repudiation gives the plaintiff an
immediate of action and he or she need not wait for the contractual time for the
performance before he or she sues.
Anticipatory breach may also occur when the defendant by his own act make it
out his control to perform the contract of the promise to marry for example if he
marries someone other than the plaintiff, the latter has an immediate cause of
action4.By doing this act the defendant has breached the contract as if he had
done so expressly in words.
4.2.4 Remedies for the breach of contract to marry
The law allows the aggrieved party to sue for remedy and the plaintiff’s sole
remedy is an action for damages.
A) In the English law equity did not obviously grant specific performance of the
contract to marry. In the issue of damages the contract to marry differs radically
from commercial contracts; for whereas the general rule is that the plaintiff may
recover compensation only for material loss, in the case for the breach of promise
to marry the plaintiff may also claim exemplary damages. Various cases have
stated that the rule as to the remoteness of damages is the same as to the law of
contract generally, and the plaintiff in the case of the breach of the promise to
marry will recover only for that loss which he would not have suffered had the
1 (1698), I Ld Raym. 386: Caryhew 467 see also the case of Potter v. Deboos (1815), I Stark. 82
2 Gough v. Farr (1827) , 2 C & P. 631, 632
3(1872), L.R. 7 Exch. 111,114
4 Short v. Stone (1846), 8 Q.B. 358

21
defendant fulfilled his contractual obligations and which was foreseeable
consequence of the breach at the time the contract was made1.
Also under common law the courts award damages not only for pecuniary and
other material loss but also for the plaintiff’s wounded feelings, shame, shock
and loss of pride. This position was provided by Willes, J., in the landmark case
of Berry v. Da Costa2, thus: “The juries are not limited to the mere pecuniary loss
which the plaintiff has sustained, but take into their consideration her injured
feelings and wounded pride (grammar)”.
Therefore under common law the plaintiff may recover compensation for the
following losses;
The loss of marriage opportunity, the plaintiff (at least if the woman is the one
who is suing) she may recover for being deprived of the status of a married
person and also for the loss of support and maintenance as noted by Phillimore,
LJ., in the case of Quirk v. Thomas3 also the fact that the plaintiff was prepared,
for example to sell up her business to marry the defendant is admissible to
increase damages because her loss will be presumed at least as high. However
the defendant may put up in any evidence any matter which tend to mitigate this
loss for example his own ill health4.
Exemplary damages; These are awarded primarily for the compensation of the
plaintiff’s injured feelings, but they may also be intended to punish the
defendant5. Although damages for injured feelings are often referred to as
exemplary damages, they are more properly classed as aggravated or parasitic
damages; these aggravated damages are truly compensatory, being given for the
injury to the plaintiff’s proper feelings of dignity and pride6.These damages will
reflect the parties’ conduct, they will be increased in proportion to the plaintiff’s
feelings, reputation and health. However the defendant may give evidence of the
plaintiff’s bad character to mitigate exemplary damages, and the fact that others
have made imputations against her or that the defendant had good reason for
believing her to be of bad character may also tend lessen damages, as it may
extenuate, although not excuse, his conduct7.
1 Finlay v. Chirney (1888), Q.B.D.494, C.A.; Quirk v. Thomas, [1916] 1 K.B. 516, C.A. ; Riley v.
Brown ( 1929), 98 L.J. K.B. 739
2 (1866), L.R. 1 C.P. 331,333
3 [1916] 1 K.B. 516, C.A
4 In Gamble v. Sales the plaintiff recovered ¼
5 Quirk v. Thomas, [1916] 1 K.B. 516, C.A.; see also Dunhill v. Wallrock (1951), 95 Sol. Jo. 451, C.A.
6 Rogers, W.V.H. (1979) Winfield and Jalowicz on Tort (11th Ed).London: Sweet & Maxwell. p592
7 Smith v. Woodfine (1857), 1 C.B.N.S 660

22
B) The position in Tanzania
In case of Tanzania only damages for actual loss are awarded that is to say
damages to be awarded should not exceed the actual loss suffered by the
aggrieved party. The law requires the party who alleges the breach of the
contract to marry must prove actual loss and that must be proved by actual
expenditure related to the promise. Section 67(1) (b)1 provides to the effect that,
no damages shall be awarded in any suit for the breach of the promise to marry
in excess of loss actually suffered as a result of expenditure incurred as a direct
result of the promise. For example in the case of Mohammed Semunyu v. Sofia
Msangi2, in this case Sofia Msangi sued Mohammed claiming damages for the
breach of the promise to marry for the loss of employment due to pregnancy,
injury of feelings and loss of other marriage opportunities. The district court
entered an exparte judgment and awarded her 20,000/= but he appealed to the
High Court where it was held that Sofia must prove actual loss but they awarded
her a lesser amount. On the injured feelings and loss of marriage opportunities
the court held that this was not applicable in Tanzania.
It should be noted that even in Tanzania no suit can be allowed for specific
performance for a promise to marry; this is provided for under Section 69(3) of
the Law of Marriage Act the Section states that “no suit shall be brought for
specific performance of a promise of marriage”.
4.2.5 Properties of engaged couples
Now days it is common for the engaged couples to own or share properties. As
noted below engagement is not itself a marriage therefore properties will not be
considered as matrimonial assets rather they should be directed to ownership of
each individual. In case the party intends to give the other party a gift the gift
shall be deemed to be the property of the donee unless otherwise proved to the
contrary.
Under common law a man who buys the property with his own money and
conveys the same to his fiancée’s name is presumed to intend to make a gift like
a husband who conveys his property into wife’s name. Common law addresses
the beneficial interests of engaged couples in property they may have bought or
worked on together, allowing the courts to determine such interests as if the
couple had been married. The scope of this section is quite limited, however: it
covers only those cases where an interest arises under the ordinary law of trusts,
and does not give the courts the wide discretion they have in matrimonial cases.
For instance in the case of Bernard v Josephs3 An engaged couple bought a
house and lived in it together; the house was in their joint names, they shared the
1 Law of Marriage Act of 1971
2(1973)
3 [1982] 3 All ER 162, CA

23
initial expenses more or less equally, and the mortgage installments were paid
out of the rent received from lodgers. When they separated two years later, a
woman moved out and a man remained in the house with another woman: The
woman sought an order that the house should be sold and a declaration that she
was entitled to a half share in the proceeds. The trial judge made the order and
the declaration sought (subject to minor deductions), the man appealed. The
Court of Appeal postponed the order so that the man could buy out woman's
interest, but upheld the declaration.
4.2.5 Gifts made in contemplation of marriage or gifts between engaged
couples
The discussion in this subtopic will be on the recovery of the gifts which were
exchanged between the engaged couples before the devastation of their intention
to marry. The ultimate question to be asked in order for the gifts to be recovered
is whether a particular gift was made in the contemplation of marriage thus the
test to be applied must be: was the gift made to the donee as an individual or
solely as the donor’s future spouse? If it is the latter class it will be regarded as
conditional. If it is in the former class, it will be recoverable only in the same
circumstances as any other gift for example on the ground of fraud or undue
influence. Whether a particular gift was given in the contemplation of marriage
is the question of fact to be decided in each case, and indeed all gifts intended to
become part of matrimonial home will fall under this category.
Under common law a gift made in contemplation of the marriage by one
engaged couple are recovered, but not by the party in breach. In the case of
Cohen v. Seller1 , McArdie, J., deal with the converse case where the man broke
the contract, and he held that since he had wrongfully refused to perform his
bargain, he must lose his pledge and therefore he could not recover. The return
of gifts under common law goes also to the return of engagement ring for
instance in the case Jacob v. Davis2 it was held that a woman who has broken the
contract must return the ring, for it is the subject of pledge, given upon the
understanding that a party breaking the contact must return it. From these two
cases we can draw a conclusion that gifts made in contemplation of marriage are
recovered but not by the party in breach. Once the marriage has taken place, gifts
vest absolutely and cannot be recovered if the marriage is subsequently
dissolved3.
The Law of Marriage Act provides categorically that gifts are returned if the
marriage has not been contracted and they were given in contemplation of the
marriage. Section 71 states that: “a suit may be brought for the return of any gift
1
(1926) 1 K.B. 536.
2
[1917] 2 K.B. 532
3
Robinson v. Cumming (1722), Atk. 409

24
made in contemplation of a marriage which has not been contracted, where the
court is satisfied that it was made with intention on the part of the giver that it
should be conditional on the marriage being contracted, but not otherwise”. For
example in the case of Generoza Ndimbo v. Blasidus Yohanes Kapesi1, the
respondent successfully sued the appellant in the Primary Court for breach of
promise to marry and the return of gifts allegedly given to her in contemplation
of marriage. She appealed to the District Court but lost with costs. In the Court of
first instance, the respondent claimed six bags of beans, ten bags of maize, one
sponge mattress, a bamboo basket, a sieve and several other things. Aggrieved
by the decisions of the lower courts the appellant appealed to the High Court. It
was held that “a suit may be brought for the return of any gift made in
contemplation of marriage which has not been contacted. The respondent must
prove to have given the gifts to the appellant on the condition that parties
intended to marry; in this case there was no evidence that the respondent gave
gifts to the appellant with an intention that the respondent would marry the
appellant”. The appeal was allowed. Also in the case of Ngonyani v. Mbuguni2,
it was held that if the person gives gifts to his fiancée upon the agreement that
they shall be returned if the marriage failed to take place, if the engagement
broke then the gift must be returned.
4.2.6 Defences for the breach of promise to marry
In an action for the breach of the promise to marry the defendant can have
several defences. There are general and special defences;
General defences; the defendant may rise any of the general defences which are
common to all actions of the breach of contract. For instance the defendant may
plead that when the contract was made he was an infant or it was illegal. Also
according to the case of Wharton v. Lewis3 misrepresentation or undue influence
will be a good defence in an action for the breach of the promised to marry. In
this case the defendant was induced to contract by a misrepresentation that the
plaintiff’s father would leave her property on his death when in fact he had just
with his creditors. Also it will be a good defence that the contract to marry was
discharged by agreement in Davis v. Bomford4, it was held that “the
discontinuance of correspondence for a long time will be evidence of discharge
by agreement”. Also the defendant may state that he was a minor at the time of
the making of the contract to marry and the contract was made in contemplation
of an illegal thing. However these defences are applied under common law.
1 (1988) TLR 73
2 [1972] H.C.D. 5
3 (1824) .1. C & P. 529
4 (1860). 6 H & N 245

25
Special defences; the defendant in an action for the breach of the contract to
marry may raise the defence that after entering into the contract with the
plaintiff, he or she discovers certain facts concerning the plaintiff which entitle
him or her to bring the contract to an end. The state of facts which can give the
defendant the defence were stated in the case of Jefferson v. Paskell1 where it
was held by Phillimore, L.J., that “on principle it would seem that there must be
some cases of mental or physical infirmity as it has been decided that there are
moral infirmity which supervening after the promise, or I would add, first
coming to the knowledge of the party after the promise, will justify him or her in
refusing to marry”. Therefore from this statement the defendant will have the
good defence if he can prove the following three elements;
(i) That the plaintiff was suffering from some moral, physical or mental
infirmity for instance the plaintiff’s unchastity (if the plaintiff is the
woman), impotence, vulnerable disease or insanity would be a good
defence.
(ii) The infirmity have the made the plaintiff unfit for marriage. But this is
a question of facts to be determined in each case. For instance in the
case of Jefferson v. Paskell2, Pickford, L.J., noted that, “I think that
there may be tuberculosis existing to such an extent as to make the
woman unfit for marriage, and therefore afford good defence”.
Therefore old findings of the facts which makes the plaintiff unfit for
the marriage not necessary binding the current case.
(iii) The defendant must have discovered the infirmity after the making of
the contract to marry. The defendant must prove that the plaintiff
suffered from the alleged infirmity and not merely that the defendant
reasonably and honestly (though) mistakenly believed that plaintiff
did so. For example in the case of Jefferson v. Paskell, the plaintiff
succeeded because although he had an ample evidence from which he
might reasonably conclude that the plaintiff was suffering from
tuberculosis, the jury found as a fact that she was not suffering from
it3.
The following facts have been held to afford good defences;
(i) That the plaintiff was a loose and immodest person or pregnant by a
man other than the defendant himself. There should be evidence that
the pregnancy is not of the defendant mere statements by the
defendant that the pregnancy is not his will not suffice. For example in
1 [1916] 1 K.B. 57, C.A
2 ibid
3 See also Irving v. Greenwood (1823) 1 C & P. 300 where the defendant contended that the
plaintiff was pregnancy by another man the court ruled that the pregnancy was his and therefore
the defence failed.

26
the case of Irving v. Greenwood1, the defendant refused to marry the
woman they have engaged on the ground that the plaintiff was
pregnant by another man. The plaintiff sued the defendant for the
breach of the contract to marry. The court ruled that, any man who
engaged the girl may breach the contract to marry if he comes to
understanding that the girl has pregnancy of another man. However
for the defendant to be granted the right the court must satisfy itself
that the girl was having a bad behavour and the man rescinded the
contract on the ground of the bad behaviour only. Also the court must
satisfy itself that at the time of the making of the contract to marry with
the girl he did not know that the girl was pregnant. If he knows that
she was pregnant then he has to fulfill the contract, in case of breach
then he has to pay damages to the plaintiff.
(ii) That the plaintiff was the man of bad character Baddeley v. Mortlock2.
(iii) That the plaintiff was a person of violent and ungovernable character
temple and threatened to ill-treat the defendant: Leeds v. Cook3.
(iv) That the defendant was suffering from the vulnerable disease for
instance developing abscess on the breast: Atchinson v. Baker4.
(v) That the plaintiff was suffering from insanity temporal or permanent
but under common law it has been held that the fact that the plaintiff
had previously been of unsound mind and confined in the mental
asylum has been held not to constitute the good defence: Baker v.
Cartwright5.
(vi) That the plaintiff was having an illegitimate child before the making of
the contract to marry. In the case of Bench v. Merrick6, the fact that the
woman was having a child twelve years before was held to constitute a
good defence.
(vii) That the plaintiff was impotent.
The list of facts which constitute the good defence are not confined only to these
mentioned they are many and they depend in the circumstances of each case.
Whereas the fact that the plaintiff was already engaged to another person at the
time the plaintiff promised to marry the defendant have been held not to afford a
good defence7. Also the fact that the plaintiff does not have income that the
defendant thought the plaintiff had ( in the absence of misrepresentation) has
1 (1823) 1 C & P. 300
2 (1816), Hort N.P. 151
3 (1803), 4 Esp. 256
4 (1796), Peak. Add. Cas. 103
5( 1861), 10 C.B. N. S. 124
6 (1844). 1 Car. & K. 463.
7 Beachey v. Brown (1860). E.B. & E. 796

27
been held not to afford the good defence for this is not the infirmity even though
it make the plaintiff les attractive for marriage.
4.3 Nature and types of marriage in Tanzania
The Law of Marriage Act basically provides for two types of marriages thus
monogamous or marriages which are intended to be monogamous and the
second type is those that are polygamous or potentially polygamous1. According
to Section 9(2) of the Law of marriage Act a monogamous marriage is a union
between one man and one woman to the exclusion of all other. Therefore among
the marriage parties to the monogamous marriage no one is allowed to contract
another marriage while the other subsists2. Sections 9(1) define polygamous
marriage as a union in which the husband may, during the subsistence of the
marriage, be married to or marry another woman or women. In this kind of
marriage the husband is allowed contract another marriage while the other
subsists. According to Section 10(2) (a) marriages contracted under Islamic form
or according to rites recognized by customary law in Tanzania, are presumed to
be polygamous or potentially polygamous. Marriage contracted in any other
form will be presumed to be monogamous, unless the contrary is proved3.
The law of Marriage Act provides for the conversion of marriages, thus married
parties who wish to convert their marriages are given opportunity to do so. This
is provided for under Section 11. Section 11(1) (a) and (b) states that a marriage
contracted in Tanzania may be converted from monogamous to potentially
polygamous, and if the husband has one wife only, from potentially polygamous
to monogamous by declaration made by the husband and wife, that they each, of
their own free will, agree to the conversion. The declaration of conversion of
marriage shall be signed by the husband, the wife and the person to before
whom it is made at the time of its making, it must made under the presence of a
judge, a resident magistrate or a district magistrate and shall be in writing.4
The copy of the declaration shall be transmitted to the registrar general5.
However marriage between two Christians which was contracted in church shall
not be converted from monogamous to polygamous as long as the duo professes
the Christian faith. This is notwithstanding the fact that the marriage might have
been preceded or succeeded by the civil ceremony or any other form6.
1 Section 10(1)
2 The Law of Marriage Act Section 15(1).
3Ibid Section 10(2) (b)
4 Ibid Section 11(2)

28
4.3.2 Preliminaries to marriage
Before the marriage is conducted there are things to be taken into account. Under
Section 18(1) of the LMA prospective marriage parties must give notice of their
intention to marry to the registrar or registration officer at least twenty one days
before the day when they propose to marry. The particulars of the notice are1
a) the name and ages of the parties and places where they reside;
b) the names of the parents of the parties and places where they
reside;
c) the statement that parties are not within the prohibited
relationships;
d) where the intended wife is below the apparent age of 18 years, the
name of the person, if any, giving consent marriage or the reason
why no such consent is being given.
e) a statement in relation to each party that that he or she is a bachelor
or spinster, married, widower or widow, or divorced, as the case
may be and where either party is divorced, particulars of divorce;
f) a statement that the marriage is intended to be monogamous or
polygamous or potentially polygamous character, as the case may
be
g) where the marriage is to be polygamous, the names of the wives of
the husband;
h) the date when and the place where the parties desire to marry; and
i) where both the parties are Christians and it is intended to celebrate
the marriage in church in Christian form, a declaration by the
intended husband that he is not already married to another
woman.
The notice of intention to marry shall be signed by both parties and where the
consent of the court to the intended marriage was obtained then the notice shall
be accompanied by a certificate copy of the court’s order giving consent.
Once this notice has been given then the registrar shall cause the notice to be
published as per Section 19. After publication of the notice any person may raise
objection if any2; for example he or she knows the facts which under the Law of
Marriage Act which constitute an impediment to the intended marriage. Where
the man is married under polygamous marriage his wife of other wives may give
notice of objection to the registrar that; having regard to the means of the
husband taking the second marriage is likely to cause hardships to the family, or
the intended wife is of notorious bad character or is suffering from an infectious
1 The law of marriage Act, section 18(2)
2 Ibid Section 20

29
or otherwise communicable disease or is likely to introduce grave discord
(dispute) to the household.
If there is an objection then the marriage cannot be conducted until the objection
has been withdrawn or dismissed. If the notice was not withdrawn then the court
or the board as the case may be shall determine the objection by calling the
parties to the intended marriage and the objector, the court shall hear them and
their witnesses if any and any other person the court may think necessary for the
just determination of the objection. Then the court or the Board shall make
findings on the fact alleged in the notice of objection. Then it shall make the order
either the marriage not to be contracted or shall dismiss the objection. Then the
Court or the Board shall send the copy of the findings to the registrar or
registration office1.
If there was no objection or the same has been withdrawn or dismissed then the
marriage will be conducted in any of the form of the marriages thus religious,
civil or customary ceremony.
4.3.4 Forms of marriage ceremonies
Basically there are three forms of marriage ceremonies; these are civil, religious,
and customary marriage ceremonies. Section 25 of the Law of Marriage Act
provides to the effect that a marriage may subject to the provisions of the Act, be
contracted in Tanzania in civil form or in civil form, or where both the parties
belong to a specified religion, according to the rites of that religion; or if the
intended husband is a Muslim, in civil form or in Islamic form;, or where the
parties belong to the community or communities which follow customary law, in
civil form or according to the rites of the customary law.
(a) Civil marriages; these ceremonies are provided for under Section 29 of the
Law of marriage Act, they are contracted in presence of the district
registrar in his office or in any other place authorized by licence issued by
him. In civil marriage ceremony the parties are allowed to add any
additional rite. Also the parties to the marriage can request the registrar to
make an entry in the register whether their marriage shall be
monogamous or polygamous.
(b) Religious marriage; they are of two types Christian marriages and Islamic
marriages.
Christian marriages; Section 25(3) (b) of Law of Marriage Act a marriage
in Christian form means a marriage recognised by Christian faith or by
any denomination or sect of that faith. There are different Christian
denominations notably Protestants, Roman Catholic and Pentecostals. For
1 The Law of Marriage Act, 1971 Section 22

30
the Roman Catholics marriage is monogamous and it is among the seven
sacraments, it is one witnessed by God and it is insoluble thus it cannot be
divorced to death. The same position is shared by Anglicans. For the
Protestants like Lutherans it is a covenant between the two married
parties and God and the marriage is monogamous. The Church never
accepts divorce.
Islamic marriages; Section 25(3) (b) of the Law of Marriage Act marriage in
Islamic form means a marriage contracted in the manner recognised by
Islam or any school or sect of that faith. For Muslims marriage is a
voluntary union between man and a woman or man and women. Islamic
marriages are polygamous or potentially polygamous. There is a room for
divorce under Islamic law where the marriage causes hardships to both
parties. Although Muslims are allowed to marry one up to four women in
order to do so the man must show that; he is capable of maintaining all
the wives, and that he will treat all wives equally and fairly.
(c) Customary marriages; these are mentioned under the Law of Marriage
Act, but the same is not well articulated under the Act. These are
marriages which are celebrated according to customary rites. Usually
these marriages are contracted under the ward executive and divisional
executive officer. These marriages must be the one which is recognised by
customary law and it must take place among the people who observe that
particular custom and tradition.
Note; all marriages contracted in Tanzania need to be contracted in the presence
of at least two witnesses1. The person who qualifies to be witness is the one of the
age of majority and of full mental capacity. The law prohibits the person below
the age of eighteen years or who is unable to understand the nature of the
marriage ceremony by reason of mental illness or intoxication or the person who
does not understand the language in which the ceremony is conducted to be
witness to a marriage2.
4.4 Presumption of marriage
The law recognizes “a presumption of marriage” when a couple have lived
together as wife and husband for more than two years and people around them
have recognized their relationship. They have all the rights of a married couple.
(the author is still preparing the materials)
1 Ibid Section 27
2 Section27(2)

31
5. NULLITY OF MARRIAGES
The law governing nullity of marriages in Tanzania has its base under common
law, the Law of Marriage Act of 1971 provides for the provisions which deal with
nullity of marriages. Part II (e) of the Act provides for the void ceremonies and
voidable marriages. Before reformation the English law governing the nullity of
supposed marriages was base on cannon law. The concept was that though there
was no divorce in church there are circumstances which hinder the formation of
the valid marriage. The difference between divorce and the nullity or annulment
is that in divorce is granted where the valid subsisting marriage is dissolved by
an order of the court of law. While a decree of annulment is to the effect that
there is an initial impediment which prevented the formation of a valid marriage
in its fullest sense. There are two circumstances where the marriage can be
nullity these are where the marriage is void and where the marriage is voidable.
5.1 Differences between void and voidable marriages
(a)A void marriage means that a marriage ceremony did not create a marriage at
all, that it was void ab initio. In brief a void marriage is never a marriage either in
fact or law. Therefore one can say that in a void marriage although the parties
have been through a marriage ceremony, they have never acquired the status of
husband and wife owing to the presence of some impediment. Voidable
marriages are marriages in which though imperfect they are regarded as valid
subsisting marriages until annulled by the court of law. Therefore a voidable
marriage at its inception a valid subsisting marriage
(b)As a void marriage is void ab initio there is no need of decree to annul it. But
for voidable marriages a decree must be sought so as to annul it as the voidable
marriage is valid marriage until a decree of absolute pronounced. In the case of
De Reneville v. De Reneville1, the court ruled that “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 valid subsisting marriage until a
decree annulling it has been pronounced by a court of competent jurisdiction”.
(c) If the marriage is void then any person with interest in so doing may take
proceedings to have it annulled. But if the alleged marriage is voidabe then no
one but the spouses may challenge its validity. Save where one of the parties was
below the age eighteen years and consent of the parent or guardian was not
sought, in such circumstance a parent or a guardian can bring a suit to have the
marriage annulled.
1
[1948] 1 All E.R. 56, 60, CA. [1948] P. 100,111

32
5.2 Grounds on which a marriage will be void
Section 38 of the Law of Marriage Act provides for the grounds upon which a
marriage will be void but the Section is not exhaustive.
(a) Where the parties are of the same sex.
This ground is not expressly stated in the Law of Marriage Act but if one
construe critically Section 9(1) which defines marriage as a “voluntary union of a
man and a woman, intended to last for their joint lives”. Expressly states that a
valid marriage in the eyes of the law should be between people of different sexes.
Therefore a marriage will be void if the parties are not respectively male and
female. The fact that a marriage is void if the parties are not male and female
cover the situation in which the person undergone an operation to get the alleged
sex. The operation usually involve hormone treatment, the surgical removal of
the male genital, and construction of artificial vagina, the person who has
undergone such treatment is not treated as a female for marriage purposes. For
instance in the case of Corbett v. Corbett1, the defendant who was called Mr.
Ashley undergone a sex change operation. The operation was successfully and
later she became a successful modal. She was also recognised as a woman for
national insurance and passport purposes. Later on she got married to a man
who did not know all those facts. The court held that she remained a man and
that her marriage to a petitioner was accordingly void. The judge specifically
stated that, “…for the purposes of the marriage law a person’s sex is fixed for all
time at birth’ and that the only relevant tests of sexual identity are biological”.
Also in Talbot v. Talbot2 , a widow went through a marriage ceremony with a
bachelor who was a transpired and the marriage was held to be void.
(b) Absent of true consent
Since marriage is a contract therefore like other contracts, the absence of consent
will invalidate the marriage ceremony. Thus the marriage which is conducted
without the consent of both of the parties is void. The Law of Marriage Act under
Section 38(1) (e) provides to the effect that a marriage shall be nullity where the
consent of the parties was not freely and voluntarily given thereto. In the case of
Bashford v. Tuli3, it was held that “no marriage shall be contracted unless the
parties agree, and if such marriage was contracted it shall be void”. Also in
Hussein v. Hussein4 ,a young woman petitioned for a decree of nullity. Her
evidence (which was accepted by the judge) was that shortly before her marriage
in England, her Egyptian husband-to-be had repeatedly threatened to kill her if
she did not agree to marry him. The judge granted the decree sought: it was
obvious from a document the wife was made to sign, he said, that the husband
1
(1970) WLR 1306
2
(1966) 111 SJ 215
3
(1971) HCD 76
4
[1938] 2 All ER 344

33
was avid of power over the wife (then aged 18), and that he exercised that power
and coerced her.
The Act did not define consent but according to Blackwell English Dictionary
consent is “a voluntary act of a person in the possession and the exercise off a
sufficient capability to make an intended choice to do something proposed by the
other”. Such capability can only be considered to exist in mentally sound, well
informed person. Section 16 of the Law of Marriage Act provides to the effect
that no marriage shall be contracted except with the consent, freely and
voluntarily given, by each of the parties thereto. If one of the person marries
under compulsion or by fraud, or under mistake as to the nature of the
ceremony1or while suffering from any mental defect whether permanent or
temporal, or was intoxicated, so as not to appreciate the nature of the marriage,
the consent will not be freely and voluntarily given2and as the consequence
thereof the marriage will be void for lack of consent. For example in the case of
Buckland v. Buckland3, the petitioner was employed by the British Authority in
Malta as dockyard policeman, he was charged under Maltese law for having
sexual intercourse with a 15 years girl. Although he was innocent of the offence,
his solicitor advised him unless he could be found guilty and be imprisoned for
many years and ordered to support the child for fifteen or sixteen years of which
the girl was believed to be pregnant. The petitioner was terrified and he agreed
to marry the girl and after few days he returned to England where he petitioned
for the annulment due to want of his consent. The court held that the petitioner
agreed to marry because of fears reasonably entertained, which arose from
external circumstances for which he was in no way responsible. The marriage
was held to be null and void.
Therefore the marriage will be null and void if the purported consent was given
under insanity, drunkenness, mistake, fear and duress. A marriage will be void if
either party was so insane at the time of the ceremony as to be unable to
understand the nature of the contract he or she was entering to. The test to be
applied as to whether the party was not capable of understanding was laid down
in In the Estate of Park4, thus “Was the [person]…capable of understanding the
nature of the contract into which he was entering, or was his mental condition
such that he was incapable of understanding it? To ascertain the nature of
marriage a man must be mentally capable of appreciating that it involves the
responsibilities normally attaching to the marriage. Without that degree of
mentality, it cannot be said that he understands the nature of the contract”.
Drunkenness will be the same as insanity that the marriage will be void. In the
1 [1938] 2 All ER 344
2 Section 16(2) (a) , (b) and (c)
3 (1968) P 296
4 [1953] 2 All E.R. 1411, 1430, CA.

34
case of Browning v. Reane1, the question before the court was whether insane
person can contract a lawful marriage. The court held that the person with
unsoundness of mind cannot enter into a marriage contract and if he enters into
such a contract the contract will be void.
Mistake will invalidate the marriage where there was a mistake as to the identity
of the other contacting party and secondly if one of the parties is mistaken as to
nature of ceremony and does not appreciate that he is contracting a marriage. For
example in the case of Valier v. Valier2, the husband, who was an Italian and
whose knowledge of the English language was poor, was taken to the register
office by the wife and there went through the usual form of marriage. He did not
understand what was happening at the time, the parties never cohabited and the
marriage was never consummated. It was held that he was entitled to a decree of
nullity. Also in Mehta v Mehta3, A UK resident wife went through a ceremony
with a husband, an Indian, in Bombay. The ceremony was conducted in Hindi,
and the wife thought its purpose was to receive her into the Hindu faith; she
learned afterwards that it was also a marriage ceremony. The court granted a
decree of nullity: W had not truly given her consent to any such marriage.
(c)Where there is a valid subsisting marriage
According to Section 38(1) (b) of the Law of Marriage Act, a marriage is void if
one of the parties to the marriage is having another lawful marriage. In Re
Spence4, There was a marriage unfortunately the marriage appeared not to have
been happy and the wife left the husband. She set up a home with another man
and had two sons with him. They went through a ceremony of a purported
marriage. The husband was still alive at the time of the purported second
marriage. The court said that the second marriage was void. The marriage which
is void due to the existence of the valid marriage remains void even if the lawful
spouse died the day after the subsequent ceremony.
The Law of Marriage Act via Section 15(1) provides clearly that monogamous
marriage makes the person incompetent to contract another marriage while the
first marriage subsists. For the polygamous marriage the law states that no man
while married under polygamous or potentially polygamous marriage, shall
contract a marriage in any monogamous form. Furthermore for the avoidance of
doubt the Section 15(3) has put it clearly that no woman who is married, shall
while that marriage subsists, contract another marriage. Section 152(1) prohibits
polyandry in Tanzania and makes it an offence for a woman to marry another
man while the other marriage subsists. In the case of Ramadhani Said v.
1
(1812) 2 Phill. Ecc.69
2
(1925), 133 LT 830
3
[1945] 2 All ER 690
4
[1990] 2 FLR 278

35
Mohamed kilu1 , it was held that “no woman who is still married, while that
marriage subsists can contract another marriage as per Section 15(3) and 152(1) of
the Law of marriage Act, 1971; it is an offence for a married woman to be a party
to a ceremony of a marriage whereby she purports to marry another man”.
(d) Where either party to the marriage is below the age for marriage
According to Section 38(1) (a) of the Law of Marriage Act the ceremony
purporting to a marriage shall a nullity- save where leave has been granted
under subsection (2) of section 13, if the party thereto is below the minimum age
for marriage. The age of marriage in Tanzania are provided for under section 13
of the Act. Thus 18years for males and 15years for females, however the court
can grant leave for persons below the age to marry if each party has attained 14
years and it is satisfied that there are special circumstances which make the
proposed marriage desirable. In the absence of these circumstances and the
marriage is contracted while the party is below the prescribed age the marriage
will be void. In the case of Pugh v Pugh2, A Hungarian girl aged 15, married an
Englishman domiciled in the UK in a ceremony in Austria; the marriage was
valid under both Austrian and Hungarian law in spite of the girl's age. Four
years later the couple went to live in England, and the wife subsequently
petitioned for a decree of nullity. The judge allowed the petition: English law
regulates the marriages of all those domiciled in England and according to
English law a husband could not lawfully enter into marriage with a girl under
16.
(e) If the parties thereto are within the prohibited degrees
The law prohibits marriage within prohibited relationships; these are prohibited
relationship of consanguinity thus marriage between blood relations, such as
parent and a child or brother and sister, it also applies to relations based on
affinity that means created by marriage. Relatives by affinity are called ‘affines’
and consist of the spouse or former spouse and his or her relatives3. The Law of
Marriage Act via Section38 (1) (b) states that a ceremony purporting to be
marriage shall be nullity if the parties thereto are within prohibited relationships.
Therefore marriage between parties within prohibited degrees is void. Section 14
provides clearly that no person shall marry his or her grandparent, parent, child
or grandchild, sister or brother, great aunt or great uncle, aunt or uncle, niece or
nephew. Also Section 14(2) and (3) recognises relationship created through
marriage by prohibiting marriage by grandparent or parent, child or grandchild
of his or her spouse or former spouse, former spouse of his or her grand parent.
The protection is based on the genetic reasons that for there is a high chance of
1 (1983) TLR 309
2 [1951] 2 All ER 680
3 Cretney, S.M (1992). Elements of Family Law (2nd Ed). London: Sweet & Maxwell. P11

36
mutant genes being present in common in two persons with a close common
ancestor.
According to the Act the relationship of half blood shall be as much as
impediment as relationship of full blood and it shall be immaterial whether a
person was born legitimate or illegitimate1. In Hains v. Jeffell2 , Mr. Hains
wanted to marry his sister’s daughter on the ground that since she was born out
of the marriage then there is no a bar for his marriage. The marriage was
challenged in court. The court held that Hains states that his sister’s daughter is
illegitimate therefore there is no any legal bar for him to marry the girl. To accept
that proposition is like to accept that Hains can marry his daughter born out of
the marriage because she is illegitimate. This fat will not be accepted. Therefore
Hains cannot marry his sister’s daughter.
Also when the child id adopted he or she became legally the child of the
adoptive parents and therefore ceases to be the child of the biological parents.
Concurrently, the child remains in the prohibited relationship with his biological
parents and their relatives as if he had not been adopted. Therefore a marriage
between people who are brother and sister as a result of adoption is null and
void even if no one knows about the relationship. Furthermore the adoptive
parents and the adopted child considered to be in the prohibited relationship.
The Law of Marriage Act in Section 14(4) provides clearly that no person shall
marry a person whom he or she has adopted or by whom he or she was adopted.
(F) Where the wife was married in Islamic form of marriage and married
during the customary period of iddat.
This is provided for under Section 38 (1) (j) of the Law of Marriage Act which
states clearly that a ceremony purports to be a marriage ceremony shall be
nullity if the wife was a widow or divorced woman prior to marriage, and her
previous marriage having been contracted in Islamic form, she contracts another
marriage during the customary marriage of iddat. Therefore if a woman
contracts a marriage before the expiration of this period the marriage will be
void.
(g) Other grounds which make the marriage to be void are;
- Where there were no two competent witnesses in the marriage ceremony
Section 38(1) (h) of the Law of Marriage Act.
-If the intended marriage is expressed to be of a temporal nature or for a
limited period Section 38(1) (i) of the Law of Marriage Act.
1 Section 14 (5) of the Law of marriage Act
2 (1696) 1 Ld. Raym.68

37
5.3 Grounds on which a marriage will be voidable
According to Section 40 of the Law of Marriage Act a voidable marriages is for all
purposes a valid marriage until it is annulled by a decree of the court. Therefore
of the marriage is voidable, it remains valid until it is formally annulled by an
order of the court, and a decree of annulment can be sought only by one (or both)
of the parties during the lifetime of both. Grounds on which a marriage will be
voidable are;
(a) Non consummation
Section 39(a) (i) of the Law of Marriage Act provides clearly that a marriage shall
be voidable if either party was incapable of consummating it. Incapacity to
consummate the marriage will render the marriage voidable. Historically under
cannon law a marriage was not always finally and irrevocably indissoluble until
the union had been consummated. Once the marriage has been consummated it
became free from nullity on the ground of voidable for the non consummation.
A marriage is said to be consummated as soon as the parties have sexual
intercourse after solemnization, not before solemnization and therefore as per the
case of Dredge v. Dredge1, the marriage is not automatically consummated by
reason of the fact that the parties have had pre-marital sexual intercourse. The
marriage is consummated by the first act of sexual intercourse between the
couple after the marriage ceremony. In order to amount to consummation the
intercourse must be in “ordinary and complete, and not partial and incomplete2”.
Therefore according to this case there can be no consummation if the husband
does not achieve full penetration in the normal sense, nor there consummation if
one of the parties, lacking an organ, has been artificially provided one by surgical
operation3. Also according to Dr Lushington in D v. A4, consummation requires
"ordinary and complete" rather than "partial and imperfect" sexual intercourse,
including erection and penetration but not necessarily leading to orgasm. It
certainly need not result in conception, and the fact that the husband may be
sterile or the woman barren is legally irrelevant.
The necessity of complete intercourse has raised difficulties where the spouses
use some form of contraception. For instance in the case of Cowen v. Cowen5
,the court held that there has been no consummation where the husband had
invariably either worn a contraceptive sheath or practiced coitus interruptus .
However the House of Lords in Baxter v. Baxter6 overruled the decision in
1
[1947] 1 All E.R 29
2
D-E v. A-G (1895) I Rob. Eccl. 279
3
D v. D [1954] 2 All E.R 598
4
(1845) 163 ER 1039
5
(1945) 2 All ER 197
6
[1972] 2 All E.R. 886

38
Cowen v. Cowen by stating that the marriage has been consummated
notwithstanding the husband’s use of sheath, the court pointed out that the
possibility of contraception is irrelevant to the question of consummation.
In the case of W v. W1, the husband was able to penetrate the wife only for a
short period and soon after he entered her his erection collapse. The court held
that “the marriage has not been consummated as there was no full penetration it
was partial”. The fact that the couple has a child does not raise a rebbuttable
presumption that the marriage was consummated because a child can be
obtained by using other means2.
In order for a petitioner to succeed he or she must show that the respondent is
incapable of consummating the marriage at the time of the hearing and the defect
is incurable or even if the operation is possible it is unlikely to succeed. In S v. S3,
A wife had a malformed vagina making full penetration impossible. The medical
evidence was that this could be rectified by a simple operation, though the wife
would still be unable to conceive and her pleasure in the sexual act would not be
significantly enhanced. Husband's petition for nullity was denied: The wife was
not unable to consummate the marriage if surgery was available, and the other
matters were irrelevant. Therefore sexual incapacity is a ground of avoiding the
marriage only if it exists at the time of solemnization and the consummation of
the marriage is still highly improbable at the date of the hearing. In Brown v.
Brown4, it was noted that if the respondent undergoes a successfully operation to
to cure the impediment after the presentation of petition but before the hearing,
he or she is no longer incapax and the petition must be dismissed5.
It should be noted that ejaculation and incapacity of the woman to conceive are
irrelevant in a petition annulling a marriage for non consummation. In R v. R6,
the court held that the marriage has been consummated where the husband was
had been physically incapable of ejaculation after penetration. On the authority
of these cases it is therefore tentatively suggested that the marriage
consummated as soon as the husband achieves full penetration and that
ejaculation is irrelevant. Also in S v. S7, it was held that incapacity to conceive is
irrelevant factor in consummation.
1 (1967) 3 All ER 178
2Clarke v. Clarke [1943] 2 All E.R. 540
3 [1962] 3 All ER 55, CA
4 (1828), 1 Hag. Ecc. 523
5 But see S v. S (1962] 1 All ER. 33 where the court was of the opinion that the relevant date
should be the date of the petition.
6 (1952) 1 All E.R. 1194
7 [1962] 3 All ER 55, CA

39
Incapacity to consummate the marriage may also be due to physiological or
psychological factors. It has been established that in any these cases in ability of
one spouse to consummate the marriage makes the marriage voidable at the
option of the other. Sometimes in these cases where the marriage is not
consummated due to psychological problems the court instead of granting the
decree of annulment will order the party with psychological problems to go and
get counseling.
In a petition for the decree of annulment for non consummation of the marriage
it does not matter how many how many times the couple have sexual intercourse
because consummation base on the first act after solemnization. In P v. P1, in
their 18 years of their marriage the couple have sexual intercourse for only 8
times. The wife petition for a decree nullity in the ground that the marriage was
not consummated. The Court held that if penetration was achieved in the first
day then the marriage was consummated.
(b) Where either party to the marriage willfully refuses to consummate the
marriage
This ground is provided for under Section 39(a) (b) of the Law of Marriage Act.
The Section states that “a marriage shall be voidable if the marriage has not been
consummated owing to the willful refusal of one party to consummate it.” This
ground carries weight upon the proof that the refusal of willful, thus the refusal
shall be without just excuse. In Jodla v Jodla2Roman Catholics husband and wife
were married in a register office, on the understanding that they would not
consummate the marriage until after a church wedding, yet to be arranged. Wife
repeatedly asked husband to arrange the church wedding but he refused to do
so. Wife's petition for a decree of nullity was granted: by refusing to arrange the
religious ceremony which their joint faith required, husband was effectively
refusing to consummate the marriage. Also in Kaur v Singh3 Husband and Wife
were married in a register office, but their shared Sikh religion required a
subsequent religious ceremony to complete the marriage. Husband refused to
arrange such a ceremony and Wife petitioned for an annulment. The Court of
Appeal said Husband's refusal to implement the marriage was tantamount to a
refusal to consummate it, and Wife was granted the decree she sought. However
in Baxter v. Baxter4, it was held that a wife’s refusal to allow intercourse unless
her husband uses a contraceptive sheath was not a refusal on her part to
consummate the marriage.
1 (1964). 3 All ER 919
2 [1960] 1 All ER 625
3 [1972] 1 All ER 292, CA
4 [1972] 2 All E.R. 886

40
(c) Lack of parental consent
The law requires parental consent to the marriage if the girl has not attained
eighteen years. Failure to get the parental consent will render the marriage
voidable. Section 39(c) of the Law of marriage Act provides to the effect that a
marriage shall be voidable if the wife has not attained the age of eighteen years
and consent to the marriage as required by Section 17 has not been given and the
court sees good and sufficient reason to set the marriage aside. This is due to the
fact that the girl at this age cannot give rational decisions. However according to
Section 96 (1) (b) of the Law of marriage Act the decree of annulment under this
ground can only be granted if it is satisfied that the petition was filed before the
girl attained the age of eighteen years. In the case of Ally Mfaume Issa v. Fatuma
Mohamed Alkamu1, the parties were married under Islamic law; the marriage
has lasted for 17 years prior to the institution of proceedings. The father of the
wife did not give consent to this marriage even though he present at the
marriage ceremony. It was held that where consent to a marriage is not given by
a parent, it may be presumed to have been given where it appears that an
unreasonably long period of time has elapsed before steps are taken to correct
the irregularity.
(d) Where either party to the marriage was suffering from venereal disease in
communicable form
This ground is provided for under Section 39(a) (iii) of the Law of Marriage Act,
thus a marriage shall be voidable if either party was suffering from venereal
disease in a communicable form. Sexual transmitted diseases have been placed
under in category also. In the case C v. C, the husband was suffering from
syphilis the wife sought a nullity decree on that ground and it was granted.
There has been a discussion as to whether HIV/ AIDS is a venereal disease for
this purpose but so far as it is a sexual transmitted disease it must be included in
this category though it may be spread by other ways.
(e) Where the wife was pregnant by third party
The law provides clearly that the marriage shall be voidable if the wife was
pregnant by third part2.This is sometimes known as pregnancy per alium. The
husband can petition for the decree of nullity if at the time of the marriage the
wife was pregnant by someone other than himself. The wife must have
conceived before marriage or at the time of the ceremony so as to add up the
ground for voidable marriage3. But if the husband knew of the pregnancy and
kept quiet he will be bared from pursuing this remedy.
1 (1974) LRT No. 67
2 Law of marriage Act Section 39(a) (iv)
3 W v. W (1963) 2 All ER 841

41
(f) Other ground includes either party to the marriage was subject to current
attack of epilepsy. This ground is provided for under Section 39(a) (ii) of the
Law of Marriage Act.
5.4 Bars to a nullity decree
There are factors which may prevent a party to be granted a nullity decree. These
factors apply only for voidable marriages they did not apply in void marriages as
they did not need a decree to put them to an end. The Law of Marriage Act via
Section 96(1) provides to the effect that the court shall have power to grant a
decree of annulment in respect of any marriage which is voidable under the
provisions of section 39. Therefore voidable marriage needs the decree so as to be
se aside. In the circumstance where the bar operated to prevent a party from
being granted a decree of annulment the marriage remains valid throughout the
lifetime of the parties unless terminated on other grounds such as divorce or
death. Bars to a nullity decree are
(a) Lapse of time
Under the law the decree will not be granted if one year has lapse after the
marriage. The aim of this bar is to ensure that the parties’ status is not left in
doubt for too long. This bar is provided for under section 96(1) (a) (i) of the Law
of Marriage Act. There is no power to extend the period even if the petitioner
was unaware of the facts that could made the marriage voidable. However if one
construe clearly section 96(1) (a) the lapse of time is not the bar in the petition of
the annulment decree basing on consummation or willful refusal to consummate
the marriage this is due to the fact that the section names recurrent attack of
insanity, epilepsy, venereal disease in a communicable form and pregnant by a
person other than the petitioner as grounds under which the limitation apply.
(b) Knowledge of the defect
According to the law if the petitioner knew the defect and decided to keep quiet
and decided to take the marriage he or she will be bared form being granted the
decree by the court. Section 96(1) (ii) of the Law of Marriage Act provides to the
effect that the court shall have power to grant decree of annulment in respect of
the marriage which is voidable unless it is satisfied that at the time of the
marriage the petitioner was ignorant of the fact alleged. In the case of Smith v.
Smith1 , in this case after the marriage the woman conceive the child after seven
months. Parents of the husband told him that the child is not his but he insists
that the child was his. One day he asked his wife if it was true that at the time of
the marriage she was pregnant by other person. The wife acknowledges that the
pregnancy was of the other person. Then the husband petitioned for the decree
of annulment. The court held that if the husband knew or he was ought to knew
1 [1948] P 77

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