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Q&A – 13 June 2016

Fixed term renewable marriage

I am very scared of getting permanently married as I do not want to end up tainting myself with a divorce. Can I get into an agreement of marriage for 5 years, and if we are both happy, we can continue for another 5 years? We can provide for all terms and conditions in the agreement including what we will do with the children and assets we acquire. I believe true love will prevail if I can do this. All these jokes about women being very difficult to handle are not only true but due to the structure of women and hence we cannot blame them either. We need to be realistic in this modern era. Please guide.
YY, Moshi

This answer is being given by a female attorney and excuse me if you see any bias. To begin with, the Law of Marriage Act provides the following under duration of marriage: A marriage, whether contracted in Mainland Tanzania or elsewhere, shall for all purposes of the law of Mainland Tanzania subsist until determined– (a) by the death of either party thereto; (b) by a decree declaring that the death of either party thereto is presumed; (c) by a decree of annulment; (d) by a decree of divorce; or (e) by an extra-judicial divorce outside Tanzania which is recognised in Tanzania under the provisions of section 92.

There is no provision in the law that allows you to marry for 5 years and then decide whether you want to continue with marriage or not. Marriage is a bond, and your wife is not a commodity that you can exchange after 5 years. The only way for you to exit a marriage is by way of a divorce if you are both alive at the time.

As for women being difficult, you must apply an objective test. The difficulty mainly arises because of the behaviour of men. Men do not respect the workload women carry in raising the children and working for the betterment of the family. I have read your other part of the question that we have not published and believe you might need some counselling for you to respect women before you tie the knot. Without such counselling, your short term marriage, if one was available, would not last very long either. I wish you luck.

HIV status to spouse

Is it necessary for a husband to inform his wife of the results of his HIV test? Is that not breach of his privacy?
IO, Mwanza

The HIV & AIDS (Prevention and Control) Act 2008 unambiguously states that (1) Any person who has knowledge of being infected with HIV after being tested shall- (a) immediately inform his spouse or sexual partner ofthe fact; and (b) take all reasonable measures and precautions to prevent the transmission of HIV to others. (2) The person referred to under subsection (1) shall inform his spouse or his sexual partner of the risk of becoming infected if he has sex with such person unless that other person knows that fact.

It is therefore mandatory for such a person to inform his spouse or sexual partner of his HIV positive status and if he does not, he could be held as trying to intentionally transmit the disease and be liable to imprisonment of between 5 to 10 years.

Revocation of a private ruling

There was ambiguity on whether or not VAT applies in a certain continuous trade that we are engaged in. We applied for a private ruling so that there would be certainty. The ruling by TRA was in our favour that VAT did not apply. After just six months, the TRA have decided to withdraw the private ruling on which we have been relying. What rights do we have?
YU, Dar

A tax ruling allows you certainty without having to indulge in litigation or disputes with the TRA as TRA sets out its understanding of whether or not tax applies based on facts you present it with.

Section 13 of the Tax Administration Act provides for private rulings. Section 14 however states that a private ruling can be revoked by the TRA in whole or in part by issuing a notice in writing, hence allowing the TRA to revoke its own ruling.

Nothwitstanding the above, our understanding is that the revocation cannot be retrospective meaning that it would come into force from the day or from a period going forward that TRA will have stated in its letter.

We also believe that this revocation is a decision that is appealable to the Tax Revenue Appeals Board under part VII of the act. There is a clear dispute resolution mechanism that you can trigger to attempt to resolve this impasse.

Advocate not properly instructed

We are involved in a case against a party that is not present in Tanzania. I am quite certain that the advocate representing the party is not properly instructed. Can the Court demand that we see whether or not his client has instructed him? I say so because it is quite evident that the advocate’s behaviour does not reflect the character of the party that I have worked with for the past 40 years. Kindly guide.
RT, Dar

The Civil Procedure Code states that the Court may require any advocate claiming to act on behalf of any party who has not appeared in person or by his recognized agent to produce, within such time as may be reasonable, a written authority signed by such party or, his recognized agent authorizing the advocate to act on behalf of such party.

Therefore you can either file a formal application or an oral application for the advocate to provide such proof. There have been instances where advocates are actually not instructed to represent clients yet do so for reasons best known to themselves.