Q&A with FB Attorneys

Divorcing a concubine

I contracted a customary marriage with a woman in my village. Soon after, I left the village to start a new life in the city of Dar es Salaam. I have been living with another woman as husband and wife and we have been blessed with two children. Unfortunately, this city woman no longer wants to live with me and has requested for a divorce and to divide the properties we acquired during our time together. I was wondering whether it is legally possible to divorce this city woman even though we were never formally married. Kindly guide me.

HZ, Dar es Salaam

This is a very interesting question considering that you have admitted you never married this woman. First and foremost, you need to understand that matters concerning marriage are governed by the Law of Marriage Act [Cap. 29 R.E. 2019] (LMA). According to section 9 of the LMA, a marriage means the voluntary union of a man and a woman, intended to last for their joint lives. This provision clearly shows that there is no such thing as a formal or informal marriage. On the issue of divorce, section 99 of the LMA gives any married person the right to petition to the Court for a decree of divorce on the ground that his or her marriage has broken down. This decree of divorce, as per section 112(1) and (2) of the LMA, will dissolve the marital status of the parties and a marriage which has been dissolved will not be an impediment to the subsequent marriage of either of the parties thereto.

Legally, a customary marriage is the only marriage that you have contracted because as per section 25(1)(d) of the LMA a marriage may be contracted in Tanzania where the parties belong to a community or to communities which follow customary law, according to the rites of the customary law. On that note, your life with the city woman is what is known as living with a concubine. Even though you lived with this woman like a married couple and were blessed with children, you had no capacity to contract another marriage since from what you have stated the customary marriage was never dissolved. It is therefore impossible to divorce the city woman because according to the law a decree of divorce must be granted where there is a valid marriage in the first place.

On division of properties, it is important to note that according to section 114(1) of the LMA the Court will have power when granting or subsequent to the granting of a decree of divorce, to order the division between the parties of any assets acquired by the couple during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale. This provision presupposes that there was a valid marriage between the parties, something that does not exist in your case. In that regard, there is no possibility to divorce the city woman. You may still find other means to divide the properties you acquired together as the two of you move on with your separate lives. Your lawyer can guide you further.

Neighbourhood watch military group

Armed robbery is a big problem in our area. Every year we witness a number of incidents in our?neighbourhood and had a meeting where someone suggested we raise a neighbourhood watch group who will be trained and equipped to operate as a military force. Many people seconded this idea because we believe it will give the criminals a test of their own medicine. However, we want to know the legality of this initiative. Please guide us.

KK, Pwani

We are sorry to hear about the trouble of armed robbery in your neighbourhood. Much as we sympathize with your suffering, we are sorry to inform you that you cannot raise a military group or armed force of any kind. Article 147(1) and (2) of the Constitution of the United Republic of Tanzania, 1977 clearly provides that it is prohibited for any person or any organization or any group of persons except the Government to raise or maintain in Tanzania an armed force of any kind. Only the Government of the United Republic may, in accordance with law, raise and maintain in Tanzania armed forces of various types for the purposes of the defence and security of the territory and the people of Tanzania. We advise that you seek the assistance of the Tanzania Police Force to find a solution to the armed robbery problem.

Creating a national park

I read in a tourism magazine that Tanzania is the leading African country in terms of the number of national parks. This information has made me curious on how national parks are created. Please guide me.

GH, Manyara

According to section 3 of the National Parks Act [Cap. 282 R.E. 2002] (the Act), the President may, with the consent of the National Assembly, by proclamation published in a Gazette, declare any area of land to be a national park. Of course, there must be some factors that the President will consider before making this declaration. This includes, among other things, the presence of wild animals and plants in the area, the conservation needs and effects of the declaration on communities surrounding the area amongst others. According to section 4 of the Act, once the declaration of an area of land to be a national park is finalised and in force, no proclamation of a national park will be amended, varied or revoked except under the authority of an Act of Parliament, provided that the President may, with the consent of the National Assembly, by proclamation published in the Gazette, alter the boundaries of any area declared to be a national park under the provisions of section 3 of the Act.