Q&A – 2 August 2010
Religious versus customary marriages
I was married under customary law in 1989 and blessed with three children. In 2004, my husband wanted to marry a second wife while still married to me, to which I had no objection. He celebrated a Christian marriage with this new woman and had two more children. We lived in harmony as all of us were well maintained by my husband. In 2008 my husband died without a will, and the brother of my husband was appointed as administrator. After the burial ceremony, much to my surprise, the administrator disinherited me and my children and all properties of my husband were given to the 2nd wife and her children. I was told that my marriage with the deceased was not legally recognized and the Christian marriage with the 2nd wife was superior to the customary marriage. Is this true? How do I fight for my rights? Am I not a wife of the deceased to whom I have been married longer than the second wife? Please advice.
MM, Dar
The law of marriage act recognizes two types of marriages- polygamous and monogamous marriages. All types of marriages fall under these two categories. Further the law recognizes Christian, Islamic, customary or civil marriages with the same status and none is superior to the other. Customary, civil and Islamic marriages are presumed to be polygamous meaning that a man can have more than one wife. Christian marriages are strictly monogamous.
Also the law of marriage act specifically prohibits a man who is in a polygamous marriage or potentially polygamous marriage to contract a monogamous marriage with another woman in exclusion of his other wives.
In your case, the 2nd marriage which your husband contracted was void and is of no legal force because legally he was in a potentially polygamous marriage and he could not contract a monogamous marriage while still married to you.
What you can do is object to the distribution of the deceased’s assets by the administrator.
I don’t know who to sue
I own a piece of unsurveyed land in Dar es Salaam. I have recently found ‘fundis’ constructing a wall on my land under instructions of the man who they simply referred to as their boss. My efforts to identify the alleged boss and his whereabouts have so far been futile. What should I do in the situation whereby the fundis are speeding up construction and I have no clue who to take to task?
TB, Dar
Not being sure of whom to sue should not mean you allow the fundis to continue building the wall. The fundi himself might be the trespasser! In such a situation, the law allows you to sue jointly all involved in the construction of this wall.
You may sue the company constructing, the fundis in the company and any other person or company you reasonably believe is involved in this illegal activity. During the pendency of the suit, you should seek for temporary injunctive orders to restrain further construction of the wall.
Maintenance of pregnancy
I am a 20 year old woman who had an affair with a man for the past six months before we broke up. Two months after separation I found out that I was pregnant. When I approached the man for maintenance of the child he refused and said that the child is not his. After finding out that I was pregnant, I was also fired by my employer where I worked as a house girl. Do I have any legal recourse against the man considering I am not legally married to him and the baby is still unborn?
LM, Lushoto
Unfortunately due to the backlog of questions, the answer to this question might be overtaken by events ie you might already be a mother.
In the question you have not confirmed whether you believe the child is that of the man you were having an affair with. Assuming he is the father, the reason of not being lawfully married to a man does not legally disentitle an expectant woman the right of claiming maintenance of the pregnancy against the responsible alleged biological father of the child.
The law imposes a duty upon such a man to maintain the expectant mother of the child. If it can be proved, which with technology you can, that the man is responsible for your pregnancy, you can file an application in Court for maintenance. You are indeed entitled to be maintained.
Another observation is that of being terminated by your employer. Our opinion is that such termination on grounds of getting pregnant is illegal and you have a good cause of action against the employer.
There is no law in Tanzania that prohibits a woman from getting pregnant, let alone not being allowed to work when she is pregnant.
Effective vis a vis date of contract
I signed a contract in June 2009 and started performing my duties as a supplier under the contract. I completed my work in August 2009 only to be told that the commencement date of the contract was not June 2009. In the vast experience that I have, it comes to me as a great surprise how such a large company has misbehaved. Does such a provision in a contract make sense to you?
GG, Dar
It is unfortunate that in this ‘vast’ experience of yours, you have not come across a contract that has an effective date (commencement date) which is different from the date of signing of the contract. The date of signing does not automatically mean that you have to perform from that date. The effective date or commencement date is what applies as to when the performance of the contract should begin.
In your instance, you have completed the work before the completion date and hence the delay in payment. It is very difficult to guide you on what to do without having read the entire contract, but one thing is certain that the company cannot go back and deny that you have performed, unless the service rendered is technical and one that has strict time frames.
The company is estopped from reacting in this manner if at the time you were performing the contract the company had notice that the performance had begun, and it did not take any steps to inform you of the effective date. This can get very complicated depending on the wording of the contract.