Q&A – 3 October 2011

Court divorce rejected by Church

I was married for five years after which my wife sued for divorce and the Court granted us a divorce decree. It is now seven years since the divorce and I want to remarry.
I am a religious man and want to marry this wonderful woman in Church. However the Priest told me that the church cannot allow me to marry someone else while I was already married. I told the priest that I have a divorce decree from Court and that my former wife was the one who petitioned for divorce. The priest said that the church does not recognize divorce and I should pray to have my wife back. How can I convince the Church to be able to remarry? I am stuck, please help.
UP, Dar
There are three types of marriages recognized in Tanzania which are civil, religious and customary marriages. The religious marriages are managed by the rules of that particular religion. Tanzania being a secular state does not interfere with any religious rules or teachings. Marriages contracted under Christianity are meant to last through out the life of the couple and the church does not recognize Court divorce.

The law does not force religious bodies to recognize divorce granted by the Courts. There is no way that the State or the Court can command the church to allow you to marry someone else just because you are divorced.

Unfortunately it seems like you will not be able to remarry in Church. The only option you have is to contract a civil marriage which recognizes a Court divorce.

Procedures in Murder cases

In September 2008 my brother was arrested and charged of killing his neighbour. Since then he was appearing before the District Court every few weeks. What surprises me is that every time he appears before the court, he was told not to say anything. In January 2010 he was brought before the Court and very long proceedings were held, referred to by the magistrate as committal proceedings. Since then he has not been brought to Court and we don’t know what is going on. My brother wrote a letter to the District magistrate in charge inquiring status of the matter. The reply he got from the magistrate is that the case is no longer at the District Court but at the High Court.
Upon inquiring from the High Court, we are now informed that he shall only be taken to the Court on a date to be fixed by the Registrar. Can you explain to us what is going on? We are all confused.
YT, Tabora

Your brother’s case is on the right track, at least as far as the procedure is concerned. The only issue is the High Court has delayed fixing hearing of the case. The District Court was right to disallow any reply by your brother because murder case is determined exclusively by the High Court. The case was filed in the subordinate court as an administrative step pending the investigation. When the Director of Public Prosecutions (DPP) is satisfied that there is enough evidence which warrants putting the suspect on trial, he shall draw information (charge) accompanied with statement of witnesses. Upon receipt of the copy of information (charge) the subordinate Court shall summon the accused person and conduct committal proceedings as was the case here.

Committal proceeding is the process where the court reads the information, statements of prosecution witnesses and documents. The accused has a right to also mention his intended witnesses and thereafter the accused is brought before the High Court for trial.

You have not told us whether the DPP preferred information for murder or manslaughter- if it is murder, your brother will not be entitled to bail as it is not a bailable offence.

Wife trespassing on my property

I was married for nearly 10 years before I left my wife as life was hell with her around me. I left her and the children in my house whose right of occupancy is in my name. We have been separated but not divorced and I need her to vacate my house as I am in need of funds and wish to rent it out. I politely asked her to leave because she is trespassing on my property but she has refused. I want to take legal action against her. Can I evict her by force?
OO, Dar

The Law of Marriage Act of Tanzania states that where any estate or interest in the matrimonial home is owned by the husband or by the wife and that husband or wife, deserts his or her spouse, the deserted spouse shall not be liable to be evicted from the matrimonial home by or at the instance of the husband or the wife who left. You can see from the above that the law is strict and you cannot evict your wife.

Further to that, you are not divorced and in the eyes of the law you are still husband and wife; the house is hence still regarded as a matrimonial home and she has a right to live there.

The division of matrimonial properties can be done if either of you petition for divorce. However be advised that even though the house is in your name, there is no guarantee that you will retain it in its entirety as under the law the wife is deemed to contribute in building of the matrimonial home simply by doing domestic chores and entitled to a certain percentage of the house.

Also looking at this from the Court’s perspective, your wife is taking care of your children and it is very unlikely that the Court will sympathise with you. Your situation is quite delicate and you need to consult your attorney.