Second chance with old girlfriend

I had a girlfriend whom I loved and genuinely thought would marry. Unfortunately, things did not work out and she eventually married another man in an Islamic marriage. Lucky for me, their marriage did not last long and the Court granted them a divorce three weeks ago. I have already approached her and she seems open to giving our relationship another chance. Can I marry her immediately? With the current situations I don’t want to take a chance and wait too long.

JM, Dar es Salaam

Your enthusiasm is understandable. However, before you start wedding arrangements, there are two legal issues worth considering. First, a divorce decree does not necessarily dissolve a marriage on the very day it is pronounced. Under section 112(1) of the Law of Marriage Act (the Act), a decree of divorce ordinarily dissolves the marital status of the parties 30 days from the date of the decree, provided that no appeal or notice of appeal has been filed within that period. Where there is an appeal, the marriage generally remains until the appeal is finally determined or the applicable appeal period expires. Therefore, if the decree you are referring to was granted only 3 weeks ago, you should not automatically assume that your former girlfriend is already legally free to remarry.

There is also another important qualification because you tell us that her previous marriage was contracted in Islamic form. Section 112(3) provides a special rule where a divorce is granted pursuant to section 107(3) of the Act: unless the Court directs otherwise, the marriage is deemed to have been dissolved from the date when the dissolution would have taken effect in accordance with Islamic law. You should therefore first establish the nature of the divorce decree and the date upon which her previous marriage legally became dissolved.

Even after establishing that the previous marriage has been dissolved, section 38(1)(j) of the Act provides that a ceremony purporting to be a marriage is a nullity where the woman was previously divorced or widowed, her previous marriage was contracted in Islamic form, and she contracts another marriage during the customary period of iddat. Therefore, the fact that you may intend to marry her in a Christian, civil or other form does not allow you to bypass the iddat arising from her previous Islamic marriage. Iddat is about 3 months but your lawyer can guide you further. Hence do not merely rush and do your research properly.