Q&A – 31 January 2011

Prenuptial agreement in Tanzania

I am a South African national having lived in Tanzania for the last ten years. Over the years I have been dating a beautiful Tanzanian girl, whom I trust very much. Recently some lawyers from overseas were visiting our offices in Tanzania and after having told them about my planned marriage, they suggested I enter into a pre nuptial agreement with my girlfriend in case of divorce. Is this possible under Tanzanian law and are such contracts enforceable? What should I focus on in such an agreement? What are post nuptial agreements?
CB, Dar

A prenuptial agreement also called antenuptial agreement or premarital agreement, is a contract entered into prior to marriage between two parties to a marriage. The contents of a prenuptial agreement can vary widely, but commonly include provisions for division of property and spousal support, in the event of divorce or breakup of marriage. The agreement may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery and further conditions of guardianship may be included as well. It is not uncommon for high net worth individuals to enter into this agreement where one of the more important provisions is that of assets owned before marriage in that such assets would remain, in the event of divorce, with the party who owned them before the marriage. That provides for a ‘asset safety zone’ for the party that could end up paying billions in divorce settlement claims over property.

In some countries especially in Europe people prefer these contracts as they are regarded as ultimate tests of love, the only way of knowing that one is truly wanted and not just of her or his wealth. The contracts are however not free from opposition, because many religious leaders consider them as damaging to marriages for being inconsistent with the continued importance attached to the status of marriage.
In Tanzania, the Law of Marriage Act is silent on the issue. The Courts have also not been brought to test this and hence our answer is based on our reading of the subject in addition to the general legal framework in Tanzania.

The legality of these type of agreements in Tanzania will very likely depend on the way the pre nuptial agreement is drafted. If it undermines morality or if it is against public policy, the agreement will likely be held to be void. The next question is what types of provisions would undermine morality or would render the agreement against public policy. This will likely be a subjective test and the background of the parties, their religion and culture may likely play a key role in determining this.

The law here looks at marriage as a life time bond. This might have been a strong notion when the law came into effect in the early 70’s but with decreasing tolerance levels amongst couples today, increased level of openness and awareness of the law have resulted in record high divorce rates at the moment. This is not only true in Tanzania but all over the world. If the Courts were to look at a public policy from a broader angle considering the changing times (we are not sure if they would), we do not see why these agreements should be held illegal.

However as said above, this has not been tested in Courts here and much as you would like us to, we cannot give you a firm answer.

There is however no harm in drafting this kind of agreement and we highly recommend that you do so. It would not only save a lot of time, money and energy to litigants but also lessen the burden on Courts. If the agreement is held not to be tenable or executable in a court of law, it can at best be an indication of the intent of the parties. A clause to exclude any provisions of the agreement that are held to be illegal should be included so that the other provisions of the agreement may be held to be enforceable.

To answer your last part of the question, postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married. The bargaining power after marriage is obviously much limited and we do not recommend you wait till after marriage to sign any such agreement.

Smoking by dala dala conductors

I am visiting Dar es Salaam and use the buses commonly known as daladala. In a recent journey from town to Gongo la mboto the conductor started smoking which sparked a heated debate between the passengers and the conductor, who said he was the boss and the bus was his property. The conductor also used abusive language towards the passengers. Is smoking in buses legal? What appropriate legal steps could we have taken against the conductor?
LO, Mbeya

The conduct of omnibuses conductors are regulated by the Traffic (Motor Omnibuses) (Conduct of Drivers, Conductors and Passengers) Rules. Under the said rules, the conductor is prohibited from smoking in or on a motor omnibus during a journey or when it has passengers on board. Again the conductor is under obligation to take all reasonable precautions to ensure the safety of passengers in or on entering or alighting from the motor omnibus. The conductor is also not allowed to use obscene or offensive language and he should conduct himself in a civil and orderly manner.

The quickest step to take is to report the incident to a police officer who after investigation may take this matter to Court. Upon conviction, the accused would have to either pay a fine or be imprisoned for a period not exceeding one month, or both pay a fine and imprisonment.