Q&A – 26 November 2018
Polygamy for man is natural
I want to challenge this global concept of marriage where a man must marry one wife. It is not possible considering the nature of a man’s structure and his natural tendencies. Tens of hundreds of years ago this concept of one man one woman did not exist where a man would only have one wife. It is the feminists who have managed to bring this into existence and it has proven a disaster. Women are unhappy (they used to be happier) and man are also unhappy. Who can I sue and how can you assist?
PT, Moshi
Your question is more philosophical than legal and we can only answer it to the extent of Tanzania’s Law of Marriage Act. This Act provides for the meaning of marriage: (1) Marriage means the voluntary union of a man and a woman, intended to last for their joint lives. (2) A monogamous marriage is a union between one man and one woman to the exclusion of all others. (3) A polygamous marriage is a union in which the husband may, during the subsistence of the marriage, be married to or marry another woman or women. This law also provides for two kinds of marriage that is to say (a) those that are monogamous or are intended to be monogamous; and (b) those that are polygamous or are potentially polygamous. This law states that a marriage contracted in Tanzania whether contracted before or after the commencement of this Act, shall (a) if contracted in Islamic form or according to rites recognised by customary law in Tanzania, be presumed, unless the contrary is proved, to be polygamous or potentially polygamous; and (b) in any other case, be presumed to be monogamous, unless the contrary is proved.
Hence under our laws, depending on your religious or cultural background, you have the option of entering into a monogamous or polygamous marriage contract. We do not see the need of you suing anyone.
Suing father in law
I got married in a very lavish ceremony and we agreed that the costs for the hotel that hosted us would be paid directly to the hotel and be split between myself and my father in law. I have paid my portion, but my father in law hasn’t. Can I sue my father in law?
FD, Mwanza
Apart from the friction the law suit will cause between you and your wife and her family, we see no reason why you cannot sue your father in law. However, if the agreement was between him and the hotel, we don’t see how you can sue him as there is no cause of action or harm caused to you. We are not sure what you intend to claim.
You might want to contact both a marriage counselor and a lawyer before embarking on this ‘suing journey.’ It might prove a lot more unexciting than you think.
Bank intending to sell our matrimonial house
Bank officers visited our house and informed me of their intention to sell it following my husband’s default on a loan agreement. I was informed that the house was mortgaged and a spousal consent was presented. After inquiry it came to my knowledge that the spousal consent was signed by the second wife who resides at my husband’s other house in Kigamboni. Is this mortgage legal?
PU, Dar
In Tanzania our Law of Marriage Act is very clear that a spouse cannot dispose of or encumber an interest in a matrimonial home unless the other spouse consents. Section 59 provides that where any estate or interest in the matrimonial home is owned by the husband or the wife, he or she shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, gift, lease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds.
Further the Land Act of 2004 reflects the same position by imposing a duty on the mortgagor to disclose any existence of a spouse or spouses. The Act further requires the consent to be of the mortgagor’s spouse residing in the matrimonial home which is the subject of a mortgage. Section 114(1)(a) stipulates that a mortgage of a matrimonial home including a customary mortgage of a matrimonial home shall be valid only if any document or form used in applying for such a mortgage is signed by, or there is evidence from the document that it has been assented to by the mortgagor and the spouse or spouses of the mortgagor living in that home.
Based on the circumstances of this case, your husband was duty bound to disclose the presence of both wives to the bank. He was also supposed to present a spousal consent from you since you are the one residing in the mortgaged home failure of which renders this mortgage invalid.
Furthermore, the law has advanced to the stage where the mortgagee is required to exercise due diligence in ascertaining whether the mortgagor has a spouse(s) and whether she/they have consented. The law further requires the mortgagee to ensure that the spousal consent obtained is genuine. This duty is imposed under the Land (Mortgage) Regulations of 2005.
However, if your husband knowingly gave a false statement to the bank on your nonexistence and swore an affidavit to prove the same, then the mortgage might be deemed to be valid. From the facts you have presented we are unable to gauge what Courts might hold as it seems there has been some serious mischief that your husband has engaged in. Your lawyer should look at all the facts and guide you accordingly.