Q&A – 26 September 2011
Use of ex husband’s name after divorce
I was madly in love with a woman whom I married 15 years ago. Due to differences with inlaws, we had no choice but to get divorced. I come from a family with a very big and powerful surname. Despite repeated demands that my former wife changes her surname, unfortunately she continues to use it 5 years after our divorce. What are the chances of stopping her from using my name?
FT, Dar
Unfortunately we have not come across any case law in Tanzania that has dealt with this issue. There is also no specifi c law that addresses this. In the absence of both a case law and specifi c law, we answer this question based on similar instances in the United Kingdom and India, from where we have adopted our legal system under common law. We must mention at the outset that the authorities and law cited below are merely persuasive and not binding on Tanzanian Court’s.
The Laws of England provide that, upon divorce whether petitioned by the husband or wife, the wife has the right to use her husband’s name and the Court has no authority to order otherwise unless the husband can prove that the continued use of his name by his former wife will cause him injuries which are recognized by the law. The said right to continue the use of her former husband’s name continues even if she re-marries.
On the other hand, the High Court of India has held in a number of cases that a divorced woman has no authority to use her former husband’s name as she will cause confusion as to whether they are still married or not. It doesn’t matter whether your name is big and powerfulthe same law applies to any name.
Either of the two positions may be taken by our Court’s, depending on the circumstances your case.
Personal loan to friend
One of my best friends companies is in need of funds. It is a genuine situation and I do want to help him but want to make sure that the law allows me to lend money to him. I shall also be charging interest for the funds as the amount is in excess of Tsh 750M. How should I protect myself?
IH, Mwanza
There is nothing illegal about lending money to someone. However unlike what you read in the scriptures, in business there is nothing like a best friend. It all boils down to the money. You seem to be unsure about a few things- on one hand you want to help him, on the other you want to charge him interest and are perhaps trying to reach a balancing act somewhere.
The best relations turn sour normally because of financial issues. It is hence better to make sure that all is clear before embarking on the transaction. It is also not unwise to appoint your lawyer to handle this for you.
We recommend that you enter into a proper loan agreement and also ensure that the borrower, your best friend, gives you some sort of security for the loan in addition to personal guarantees. Think of all the eventualities- he might die, you might die, his business might fail, you might need the funds earlier, he might sell his company and so on. You also need to make sure how he runs his business. Does he have other shareholders? Do they know about the loan? Is there a board resolution to borrow the money from you? oes the company have power to borrow? What are the funds going to be used for? What is their cash flow position like? Why is this best friend borrowing from you and not from a bank? How much pressure is on you to lend? Always remember high pressure lending has greater chances of turning into a bad debt.
Since this is your best friend, you might sound too commercial if you table all these items. Your lawyer can perhaps handle it better than you. When lending money, think of what you will do in case the borrower defaults. Do not venture into this without having adequate protection- life is full of ups and downs. Don’t be blindfolded by the fact that it is your best friend.
Transfer of a trial Judge
I have a civil suit pending in Court in which I am a Plaintiff. The case has reached the defence hearing stage with the plaintiff having closed its case. With only one witness left to be called by the defence, we are informed that the trial Judge has been transferred. My friends tell me that the case will have to be reheard before a new Judge and all witnesses called again. Can I apply for the same judge to proceed with the case? Will the new assigned Judge understand the case as it is almost at completion?
RD, Dar
Your friends are misguiding you on the fact that the case shall have to start afresh after transfer of the trial Judge. The judiciary does not revolve around one Judge. The transfer of the presiding Judge should not normally affect your case as the Court file has a complete record of all proceedings. Practically you should however expect a delay as the case shall have to be assigned to a new Judge and that does take a long time if you do not follow this carefully. The key advice we can give you is to follow up closely so that your file can be assigned to a new Judge.
On whether you can choose the same Judge to continue, apart from it being impractical as he or she may be assigned a new station, our legal system does not allow a litigant to choose a Judge. The assignment of cases is done randomly by the Judge in charge.