By Jesse Temba LL.

B Hons at TUMA

In this paper, a discussion on the division of matrimonial assets will be made. The matrimonial assets in question are those acquired before, during and after marriage. The main question being whether or not all of those categories of properties are liable for distribution in terms of section 114(3) of the Law of Marriage Act CAP 29 of the Laws (R.E 2002), when the marriage is dissolved. The Law of Marriage Act No. 5 of 1971 CAP 29 of the Laws of Tanzania (R.E 2002) will be our most consultant statute.

It is a general acknowledgement that Marriage does not affect property rights. Whatever a party to a marriage owns at the time of its celebration prima facie continues to be his or her property. The same is true after marriage. Each spouse in a marriage owns his income and it is prima facie regarded that any property acquired by either party with his own income or capital is his property. However, under the Law of Marriage Act, the court is given the power to order a division of any property which was acquired by the spouses during the lifetime of their marriage. Matrimonial assets that are subject to such division are those acquired during the marriage and through joint efforts. It also includes the properties acquired by either party before the Section 60 of the Law of Marriage Act, No. 5 of 1971 CAP 29 of the Laws of Tanzania (R.E 2002), which states that; where during the subsistence of a marriage, any property is acquired- (a) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse, (b) in the names of the husband and wife jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal. Act No. 5 of 1971 CAP 29 of the Laws of Tanzania (R.E 2002) Ibid, section 114(1), which states that; The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or order to the sale of any such asset and the division between the parties of the proceeds of sale.

marriage but substantially improved during the marriage through the joint efforts of both spouses. In other words, the properties acquired on the send off and kitchen party day will remain to be the separate property of the party responsible and they will not be subject to such division for they have been acquired prior to/before marriage, especially when those properties were not substantially improved through the joint efforts of both spouses through the lifetime of their marriage. In exercising its power to order division of matrimonial assets, the court shall have regard to the custom of the community from where the parties belong, to the extent of contribution made by each party in money, property or work towards the acquiring of the assets, to the needs of the infant children and to any debts owned by the other party which were contracted for their joint efforts. With all these consideration, it shall be the interest of the court to divide the property equally and without any discrimination whatsoever. The term matrimonial assets acquired during the marriage shall include properties acquired before the marriage by either of the parties which have been substantially improved by their joint efforts. This position was also discussed in the case of Anna Kanugha v. Andrea Kanugha. In this case, the issue was whether personal property acquired before marriage is liable for distribution in terms of section 114(3) of the Law of Marriage Act when such property has been substantially improved during the marriage through the joint efforts of the spouses. Anna Kanugha v. Andrea Kanugha (1996) TLR 194. Section 114(2) of the Law of Marriage Act. CAP 29 No. 5 of 1971 (R.E 2002) Ibid, section 114(3). (1996) TLR 194. In this case, the appellant to the Dodoma Urban Primary Court for the division of matrimonial assets, which were acquired by the husband before their marriage but substantially improved through their joint efforts. Act No. 5 of 1971 CAP 29 of the Laws of Tanzania (R.E 2002)

The court held that Personal property is liable for distribution in terms of section 114(3) of the Law of Marriage Act, No. 5 of 1971, CAP 29 of the Laws of Tanzania (R.E 2002) when such property has been substantially improved during the marriage by the joint efforts of the spouses. However, it should be noted that, not all personal properties acquired before marriage are liable for distribution. It is only those which were substantially improved through the joint efforts by both spouses during the subsistence of their marriage. Mwalusanya J (as he then was)

The term matrimonial assets for the purpose of section 114 of the Law of Marriage Act, means the same thing as what is otherwise described as family assets, which means the following; "family assets" has been described as a convenient way of expressing an important concept; it refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole. The family assets can be divided into two parts (1) those which are of a capital nature, such as the matrimonial home and the furniture in it (2) those which are of a revenue producing nature such as the earning power of husband and wife. Act No. 5 of 1971 CAP 29 of the Laws of Tanzania (R.E 2002) Under paragraph 1064 of Lord Hailsham's Halsbury's Laws of England 4th Edition, p. 49

The term joint efforts, has been the point of controversy for many years. This controversy was based on the question as to whether or not domestic works constitutes the contribution towards the acquisition of the matrimonial asset. The controversies were noted from many cases one of which is that noted in the case of Hamid Amir Hamid v. Maimuna Amir where Patel J (as he then was) stated that; I am unable to agree with Mr. N.S Patels submission that because a wife runs a household, washes, cleans, cook and saves money each month; this should be termed as her contribution and joint effort towards the acquisition of property during the subsistence of the marriage.... (1977)LRT 55 Patel J (as he then was)

That case shows how the provisions of section 114(3) of the Law of Marriage Act was given a narrow interpretation at that time. Domestic works were excluded. It was till 1983 when this controversy was set clear. That was in the case of Bihawa Mohamed v. Ally Sefu, it was stated that; Joint efforts and work towards the acquiring of the assets have to be construed as embracing the domestic efforts or work of husband and wife. So, it is now clear that domestic contribution counts as contribution towards the acquisition of matrimonial assets though not fifty fifty. In another case of Bibie Maurid v. Mohamed Ibrahim, it was stated that; Act No. 5 of 1971CAP 29 of the Laws of Tanzania (R.E 2002A) (1983)TLR 32 In this case, the appellant and respondent were wife and husband respectively until the dissolution of their marriage by a court decree of the Primary Court of Ilala District at Kariakoo, Dar es Salaam in 1980. In subsequent proceedings the Primary Court held that the appellant (a wife) was not entitled to any share in the matrimonial assets as she was a mere wife and that the house was bought by the husband's money. On appeal to the High Court, the Primary Court's decision was substantially upheld. The appellant further appealed to the court of Appeal where the decision of the primary and the High Court were reversed. Nyalali CJ, in the case of Bihawa Mohamed v. Ally Sefu (1983)TLR 32, pg. 33 (1989)TLR 162 In this case, the parties were married under Islamic Law in 1979. In 1986 the respondent issued talaka in accordance with Islamic Law. Their dispute had been referred to a Marriage Conciliation Board which certified that it had failed to reconcile the spouses and the Primary Court granted a decree of divorce. On appeal to a District Court, at the instance of the husband it was held that there was no evidence that the marriage had broken down irreparably and the decree of divorce and the order of division of matrimonial assets were set aside. Appellant appealed to High Court where the decisions of the subordinate Courts were reversed.

The performance of domestic duties amounts to contribution towards such acquisition but not necessarily 50%. The amount to be awarded therefore will normally depend on the extent of contribution made by each party. Precisely, domestic contribution is taken into consideration by the court when dividing matrimonial assets. Another important thing to note is that the misconduct of any spouse shall not count to the division of the assets but it shall be regarded important during the acquisition of the property. In Bihawa Mohameds case, the judge stated among other things that; Misconduct of a spouse reduces nothing to her contribution towards the welfare of the family and its consequences to the acquisition will count to reduce her share. Maina J in the case of Bibie Maurid v. Mohamed Ibrahim (1989)TLR 162, pg. 162 Nyalali CJ, in the case of Bihawa Mohamed v. Ally Sefu (1983)TLR 32, pg. 36

It is now clear that all properties acquired by the spouses during subsistence of their marriage and through their joint efforts are liable for distribution in terms of section 114(3) of the Law of Marriage Act No 5 of 1971, CAP 29 of the Laws (R.E 2002). Also all properties acquired by either party prior to the marriage but substantially improved during the subsistence of their marriage and through their joint efforts are also liable for such distribution.