The law that governs divorce procedures is the Law of Marriage Act (LMA) [Cap 29 R.E. 2019]. The term divorce is not defined by the said law, it simply means legal separation of spouses affected by the judgment or decree of a court. First, the court must satisfy itself that the marriage is broken down beyond repair before granting a decree of divorce in Tanzania and deal with the rights of the parties which include division of the properties acquired during the subsistence of the marriage and custody and maintenance if parties are blessed with children.
The family law experts at AVC& Partners, Advocates have delved in briefly to give an overview of the procedures and the rights of parties as follows:
Procedures
For marriage to be declared broken beyond repair, the petitioner has to prove before the court either one or more of the incidents named below occurred and they were occasioned by the respondent:
- Adultery
- Sexual perversion
- Cruelty, whether mental or physical, inflicted by the respondent on the petitioner or the children
- Willful neglect
- Desertion of the petitioner by the respondent for at least three years ( the court has to satisfy itself that the desertion was willful)
- Voluntary separation or separation by decree of the court has continued for at least three years
- Imprisonment of the respondent for life or a term of not less than five years. The court shall evaluate and consider both the length of the sentence and the nature of the offence committed.
- Mental illness of the respondent, where at least two doctors, one of whom is qualified or experienced in psychiatry, have certified that they entertain no hope of cure or recovery
- Change of religion by the respondent, where both parties followed the same faith at the time of the marriage and where according to the laws of that faith a change of religion dissolves or is a ground for the dissolution of marriage
After any of the incidences named above have occurred, the aggrieved party is advised to try to reconcile the differences via informal dispute resolution mechanisms, including family meetings or religious leaders. Once these channels fail to reconcile the differences, then the aggrieved party is required by law to take the matter to the marriage conciliation board for settlement. if the board also fails to reconcile the parties then the matter may be taken to court by the way of petition of divorce.
The Marriage Reconciliation Board
As stated earlier, a petition for divorce cannot be instituted unless the aggrieved party has first referred the matrimonial dispute to the board. The reason behind this procedure is to try to rescue the marriage by amicable settlement. Section 102 of the Law of Marriage Act establishes Marriage Conciliation Boards in every ward in Tanzania, and they are vested with jurisdiction to reconcile marriage disputes brought before it.
The common practice is that the board calls the parties before it, and if it successfully reconciles the parties, the matter ends there, however if it fails to do so, it issues a certificate that it has failed to reconcile the parties which has to be addressed to the Court within the geographical location of the parties.
Divorce Petition
It is advised that the aggrieved party should consult the services of a lawyer who will assist in preparing the petition and ensure that all interests of the petitioner are covered. The petition should contain: (a) particulars of the marriage between the parties and the names, ages and sex of the children, if any, of the marriage; (b) particulars of the facts giving the court jurisdiction; (c) particulars of any previous matrimonial proceedings between the parties; (d) a statement of the principal allegations which it will be sought to prove as evidence of the breakdown of the marriage; (e) where the petitioner has been guilty of any marital misconduct, an admission of such misconduct; (f) the terms of any agreement regarding a maintenance or the division of any assets acquired through the joint efforts of the parties or, where no such agreement has been reached, the petitioner’s proposals; and (g) particulars of the relief sought.
Points worthy of note are:
- Every petition for a decree of divorce has to be accompanied by a certificate issued by the board which should have been issued within six months before the filing of the petition.
- A petition for a decree of divorce which includes an allegation of adultery may include a prayer that the co-respondent be condemned in damages in respect of the alleged adultery.
- The court cannot entertain a petition for divorce if the spouses are in the first two years of their marriage except under exception circumstances where the petitioner can apply for the leave of the court and show that he or she is facing “exceptional hardship.” The hardship is not defined, it shall be determined by the court on a case-by-case basis.
A decree of divorce once issued, shall dissolve the marital status of the parties thirty days from the date of the decree if no appeal has been filed.
Right of the division of matrimonial properties:
Division of matrimonial properties follows after the court has issued a decree of divorce a well as issues of custody of children if the parties were blessed to have children. Matrimonial properties are simply the properties acquired by the spouses either by the name of the husband or by the name of the wife or jointly during the subsistence of marriage, this is not definite, the court shall also consider:
(a) the customs of the community to which the parties belong.
(b) the extent of the contributions made by each party in money, property, or work towards the acquiring of the assets.
(c) any debts owing by either party that was contracted for their joint benefit.
(d) the needs of the infant children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division.
Maintenance of the spouse and custody of children
The court also has discretionary powers to order maintenance of the former wife by her former husband until the female spouse gets married to another man. Similarly, if the parties are blessed with children, the custody of the children will be either with the father or mother based on the court analysis of the evidence provided. It is a rebuttable presumption that it is in the best interest of the child, and for the best welfare of the child that a child under the age of seven years old be under the custody of his or her mother, however, both parties have the right of custody of their children. It is the duty of the court under its discretionary powers to determine the main caregiver of the children based on best interest of the children.
Conclusion
Generally, the Tanzanian law does not encourage divorce, however in the event the institutions mandated to reconcile parties fail, then the court will dissolve the marriage. Also, it should be noted once the marriage is dissolved, each party is entitled to their fair share on the jointly acquired properties and each party has responsibility in the maintenance of the children (if any).
AVC & Partners Advocates has experts in family law who have provided unparalleled legal services to individuals including instituting divorce proceedings, custody and maintenance of children.
Disclaimer
This Article has been prepared for general guidance on matters of interest only and does not constitute professional advice. It would be best if you did not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty, express or implied, is given as to the accuracy or completeness of the information contained in this publication and, to the extent permitted by law. AVC & Partners (Advocates), its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining from acting, in reliance on the information contained in this publication or for any decision thereto.
