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Here is my fresh take on “property division after concubinage.”

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by Rutashubanyuma, Sep 25, 2010.

  1. Rutashubanyuma

    Rutashubanyuma JF-Expert Member

    Sep 25, 2010
    Joined: Sep 24, 2010
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    (By Rutashubanyuma Nestory – A public policy analyst based in Arusha.)

    A pithy monograph by columnist O.J Kaniki on Sunday Citizen of 4th April 2010 made some narrow observations drawn from a single source of Hoka Mbofu v. Pastory Mwijage [1983] T.L.R 286 and drew some farfetched conclusions that had failed to capture progress made by our courts in the expositions of the Marriage Act of 1971. In his compendious analysis of the case, the scribe reckoned upon Rule No. 94 of the local customary law (declaration) Order 1963, GN No. 279/1963 in a manner that alluded the said Rule had superseded Section 160 (2) of the Marriage Act! That quaint heresy was scotched by our Court of Appeals in Hemed S. Tamim v. Renata Mashayo [1994] T.L.R 197. Equally jolting, the writer limned a “Maginot line” which had spurred readers to adduce our courts do treat concubinage differently from “duly married” couples in family asset divisions. That legal position was untenable knowing our Court of Appeals had demonstrated supra to the contrary in Hemed S. Tamim decision (ibid), and, also at High Court by Korosso J. (as he then was) in Harubushi Seif v. Amina Rajabu [1986] T.L.R 221. These seminal departures from the legal positions expounded by Mr. Kaniki came to light three to ten years after Hoka Mbofu case (ibid) was decided. Obviously, there was no way Hoka Mbofu decision could still be good law! Since Honourable Judge Mfalila (as he then was) had clarified on what constituted a “duly married” couple in Francis s/o Leo v. Paschal Simon Maganga [1978] L.R.T no. 22, the High Court had strenuously grappled with that conceptualization. In Zacharia Lugendo v. Shadrack Lumilang’omba [1987] TLR 31 Mwalusanya J. (as he then was) heavily borrowed from Francis Leo decision only to correct himself in a huff two years later in John Kirakwe v. Iddi Siko [1989] TLR 215. From Hemed S. Tamim (ibid), we can cull the following legal beacons: One, despite the rebuttal of presumption of marriage as provided under S. 160 (1) of the Marriage Act, the courts have the judicial power under s. 160 (2) of the Act to make consequential orders as in the dissolution of marriage or separation and divisional of matrimonial property acquired by the parties during their relationship is one such order. Two, conclusions can reasonably be carved from that exposition to deduce concubinage should be treated at per with “duly married” couples when it comes to division of property after the dissolution of that irretrievable collaboration. In fact, the Appeals Court “equally” apportioned the house to the litigants unleashing a devastating uppercut to gender biased infringements that may have been emboldened by the Rule No. 94. This is what His Lordship Korosso (as he then was) espoused in Harubushi Seif decision (ibid) when he observed: “…where a woman has proved to satisfaction of the Court of her having cohabitated with a man for two years… (She) is only deprived of the right to petition for divorce or separation. Otherwise such a woman has all the rights which a divorced woman has under the Act.” Even more gratifying, in Edward Marealle v. Marealle Clan & Akilei Marealle [1992] TLR 275 (supra) the Court of Appeals ruled that under Section 114 (1) of the Marriage Act the courts have powers to divide assets acquired jointly by the parties during the marriage. The Appeals Court made it abundantly clear that the said section 114 was intended to rectify “mischief” of traditional exploitation and oppression of married women by their husbands. In this decision, the Court laid down principles - from doctrine of equity - which should guide a court in determining the shares of husband and wife in matrimonial or family assets as stated in section 114 (2) of the Marriage Act. With a parting vindicatory shot, Mr. Kaniki is not alone on this “mea culpa”. I, too, had propounded similar errancy published in the Sunday Citizen of 24th September 2006 and again on 17th December 2006. With profound humility, I apologize!