BY. ELIAS MAGUGUDI (2016)
ABSTRACT
This
article examines how the courts in Tanzania have been considering the element
of fault on a party during
matrimonial proceedings in division of matrimonial property. The point of
departure is the Law of Marriage Act [CAP 29 R.E 2002] and case law drawn from
Tanzania and other common law jurisdiction relevant to the discussion. The
first part of this article provides the introduction and the definition of
terms; the second party examine the common law position towards fault on the
party in distribution of matrimonial property, third part factors considered by
courts in division of matrimonial property and concluding remarks.
INTRODUCTION AND DEFINITION OF TERMS
The Law of
Marriage in Tanzania is originated from the colonialists. The British introduced the Tanganyika Order
in Council (T.OC.) of 1920 that introduced the application of Customary Laws
and the enactment of the Judicature and Application of Laws Act (JALA) (Cap,
358 R.E.2002) by then The Judicature and Application of Laws Ordinance (JALO).[1]
Rule
2 of the Law of Marriage (Matrimonial Proceedings) Rules[2]
define matrimonial proceedings to be any proceedings; (a0 on the objection
under section 20 of the Law of Marriage Act [Cap 29 R.E 2002], therein after
referred to as the Act; (b) for divorce, separation or annulment (c) for
maintenance of a spouse; for custody or maintenance of child of the marriage
and (d) for declaratory decree under 94 of the Act.
Matrimonial
property can be defined as any assets acquired by the spouses during the
marriage by their joint efforts, this include assets owned before the marriage
by one party which have been substantially improved during the marriage by the
other party or by their joint efforts[3].
In the case of Anna Kanungha v Andrea
Kanungha,[4]
Mwalusanya J, as he then was, held that any personal property is liable for
distribution in terms of the provision of section 114 (3) of the Act when such
property has been substantially improved during the marriage by the joint
efforts of the spouses.
FAULT ON THE PARTY IN DIVISION OF
MATRIMONIAL ASSET UNDER COMMON LAW
In
England a significant judgement of House of Loads delivered in May, 2006
brought far reaching implications in respect of division of matrimonial
asserts, in the case of involving Melisa Miller and her husband, Allen Miller,
the House of Loads held that Melisa could keep the £5,000,000 she was awarded
out of her ex husband Allen £17,500.000 fortune. Mr Allen Miller had challenged
an earlier court order that he pay his ex wife and had disputed the £5,000,000
settlement for Melisa. The Millers, who lived in Chelsea, London, were married two
years and 9 months and had no children when they split. The trial judge decided
that Mrs Miller was entitled to a substantial settlement because she married
with reasonable expectation of a future wealthy life style the trial judge had
also cited Mr. Miller’s adultery as a factor in the award. The House of Lords
dismissed Mr. Millers appeal but said that the court should not have taken into
account the husband adultery behaviour as a factor in the award.[5]
FAULT ON THE PARTY UNDER THE LAW OF
MARRIAGE ACT
The
provision governing the factors to be considered by the court during the
division of matrimonial asserts is section 114 (2) (a –d) of the Act which
state as follows;-
In exercising the power conferred by
subsection (1), the court shall have regard (a) to the custom of the community
to which the parties belong; (b) to the extent of the contributions made by
each party money, property or work towards the acquiring of the asserts; (c) to
any debts owing by either party which were contracted for their joint benefit;
and (d) to the needs of infant children,
if any, of the marriage and subject to those contributions, shall incline
towards equality division.[6]
The
question as to whether the guilty party who causes the breakdown of the
marriage should benefit from his/her own wrong has been confronting courts when
considering the factor set out in section 114 (2) of the Act.
This
question cropped up in the case of Robert
Aranjo v. Zena Mwijuma[7]
where the appellant urged the Court of Appeal of Tanzania to hold that in
determining division of matrimonial asserts, the lower courts ought to have
considered that the respondent had been the wrong party who weaken their
marriage. Indeed, Maina J, (as he then was), in the High Court , directly
addressed himself to this question and come to the conclusion that whether the
appellant was guilty of cruelty or respondent was guilty of desertion it made
no difference, the trial judge relied on section 114(2) of the Act. The learned
High Court judge took the view that there was nothing in this section, or
indeed, in the provision of the Act as a whole which makes the conduct of the
guilty that cause the breakdown of the marriage a relevant consideration in
ordering division of the matrimonial asserts.[8]
In
a lengthy submission before the Court of Appeal, the appellant strongly criticized
this view and vigorously contended that it would be grossly unfair to permit a
guilty party who wrecks the marriage to benefit from his or her own wrong. He
urged that section 114 of the Act should be read and construed so as to make
the conduct of such guilty party a relevant consideration in ordering division
of the matrimonial asserts. He claimed that this was the view that was
expressed by this court in the case of Bi
Hawa Mohamed vs. Ally Seif. [9]The
relevant passage in this case reads:
With regards to the fear that the broad view
might result in a wife being allowed to benefit from a marriage which she
wrecked we think, with respect, that it is misguided because what is in issue
is the wife’s contribution or efforts towards the acquisition of matrimonial or
family asserts, and not her contribution towards the breakdown of the marriage.
Of cause there may be cases where a wife’s misbehaviour may amount to failure
to contribute towards the acquisition of matrimonial or family asserts, but this
has to be decided in accordance with the facts of each individual case.
The
appellant pressed that the respondent had been guilty of desertion which, in
turn, wrecked their marriage, and therefore, that factor should have been held
against her in ordering division of their matrimonial asserts. On this argument
the Court of Appeal was of the opinion that;
We think that the appellant has not quite
understood the message contained in this passage. As the passage makes it very
clear, the Court in Hawa’s case was dealing with the issue of contribution
towards the acquisition of matrimonial asserts, not contribution towards the
breakdown of the marriage which is the issue in the present case. The
underlined words which the appellant seeks to rely on simply mean that in
ordering division of the matrimonial asserts the Court will consider whether
the conduct or behaviour of the guilty party who wreaked the marriage operated
in such a way that by reason of such conduct the said party cannot have made a
contribution to the acquisition of the matrimonial asserts. So that if, for
example, the guilty party was in desertion at the time of the acquisition of
the matrimonial asserts, such conduct would be a relevant consideration when
deciding on the extent of the party’s contribution towards the acquisition of
the matrimonial asserts; the point to stress is that such conduct, in order to
warrant consideration, must have been operative at the time of acquiring the
matrimonial asserts. Thus in a proper case the Court may well find that the
guilty party made no contribution at all if, say he or she was in desertion for
the whole period during which the said asserts were acquired.[10]
Therefore,
the Court of Appeal was quite satisfied that the court in Hawa’s case did not
consider the question whether the guilty party who causes the breakdown of the
marriage should benefit from his or her own wrong because, as the court clearly
stated ,that question was not before it. To this end, the court had to address
itself to that question which had risen squarely in this appeal, holding that;
It is pertinent to point out that
subsection(2) of section 114 of the Law of Marriage Act,[11]
sets out four matters to which the court shall have regard when ordering
division of the matrimonial asserts. It is noted, however, that the extent of
the guilty party’s contribution to the breakdown of the marriage is not made
one of such matters, nor can it be construed to fall under any one of them. We
think that this was such an obvious and significant factor that if it was
intended to be one of such considerations , the parliament would not failed to
say so. Indeed we would go further and say that in our view such a provision
would pose a practical problem
The court had to consider, for instance, a
situation where a marriage lasted a long time during which spouse jointly
acquired matrimonial asserts, but the marriage was eventually dissolved because
one of the spouse committed adultery recently. Now, if the appellant’s
submission were to be upheld, the implication would to deny the guilty party
his or her share of the joint matrimonial asserts because of the adultery
committed only in old age and long after the said assert had been acquired. The
court went on to opine that;
In our view there could be no legal justification
for that. As we have amply demonstrated herein before we think that
consideration of conduct of the party who causes the breakdown of the marriage
is relevant only in relation to the acquisition of matrimonial asserts, not in
relation to the breakdown of the marriage.
On the evidence the matrimonial asserts in the present case were acquired
jointly by the parties long before the respondent had left the matrimonial
home. Thus, whether the respondent was in desertion or whether, ads found by
the District and High court, she was forced out of the matrimonial home by the
appellant cruelty, that was neither here nor there. It was not relevant for the
purpose of considering division of the matrimonial asserts, and the High Court
Judge was perfectly entitled so to hold.[12]
In
the case of Bi Hawa Mohamed v. Ally
Seif [13]the
appellant was paid a sum of Tshs. 18,000/= apparently when the spouse were
still resident in Mombasa. The money was to be used by her to set up some
family business. She did no use the money for the purpose intended. She
apparently squandered it away. The court was of the view that, where a spouse
commits a matrimonial misconduct which reduced to nothing her contribution to
towards the welfare of the family and consequential acquisition of matrimonial
asserts she or he would not be entitled to a share in the property.
Furthermore,
in the case of Omari Chikamba v.
Fatuma M. Malunga,[14]
there was evidence that the respondent had been guilty of gross misconduct.
She not only committed acts of adultery with the sewing machine operator which
in themselves would not, have affected her share in the division of property,
but also she mismanaged the tailoring business which she had completely wrecked
down. Besides that she built a house clandestinely. While the appellant was
away in Dar es salam the respondent disposed by sale three mattresses, a bed, a
refrigerator, three sewing machines, a motor cycle and so on. There was
therefore cogent evidence to prove that the respondent had grossly misconduct
herself in the management of the matrimonial property. The court held that ,
although evidence in this case shows that respondent was of loose and immoral
character both Islamic law and section 114(2) of the Law of Marriage Act, 1971
provided that a divorced woman is entitled to, and does not forfeit her share,
in the division of matrimonial property because of immoral or loose character;
however, misconduct by a spouse touching to management of matrimonial property
is a relevant factor when the issue of division of matrimonial property upon
dissolution is arises.
CONCLUSION
Therefore the court in ordering division of
matrimonial asserts, will consider whether the conduct of the guilty party who
wrecked the marriage operated in such a way that by reason of such conduct the
said party cannot have made a contribution to acquisition of matrimonial
asserts. However this will be decided in accordance of the fact of each
individual case.
[1] Judicature
and Application of Laws Act Cap 358 R.E 2002
[3]
Section 114 (1) and (3) of The Law of Marriage Act [Cao 29 R.E 2002]
[4]
[1996]TLR 195
[5]
British Council ,Legal e- News,
India, 2 rd June 2006
[6]
Law of Marriage Act [Cap 29 R.E 2002]
[7][1984]TLR 7
[8] Mashamba
C.J .(2010) Introduction to Family Law
in Tanzania, Dae es salam: Institute of Public Policy and Law (IPPL) &
National for Legal Assistance (nola), Tanzania p.210 - 211
[9]
[1983]TLR 32
[10]
Masgamba C.J., (2010), Op. Cit. P 211
[11]
[Cap. 29 R.E 2002]
[12]
Mashamba, C.J (210), Op. Cit 212
[13]
[1983]TLR 32
[14]
[1989]TLR 39
0 comments:
Post a Comment