Annulment of marriage
I have discovered that my wife was pregnant with another man at the time we contracted our marriage but she did not disclose this to me. Our marriage has subsisted for about 10 months and we have acquired one house since we contracted the marriage. However, with the above facts, I am disappointed and want to get out of this marriage. What can I do? Is she entitled to a share of the house we have acquired during subsistence of this marriage?
RT, Mtwara
In view of section 39 (a)(iv) of the Law of Marriage Act [Cap.29 R.E 2019], the marriage becomes voidable if at the time of contracting it, the wife was pregnant by another man. In order to get out of this voidable marriage, the husband is required to petition the Court under section 96 of the Law of Marriage Act for annulment of marriage.
However, for the annulment petition to succeed, the husband has to establish that: (i) the petition for annulment was filed within 1 year since the date of contracting the marriage; (ii) at the time of contracting the marriage, the husband was not aware of the pregnancy he is doubting; (iii) marital sex has not taken place since the husband discovered that the wife was pregnant by another man at time of contracting the marriage.
The Law of Marriage Act does not contain express provisions for division of matrimonial assets subsequent to the annulment of a voidable marriage. Section 114(1) of the Act only addresses the division of matrimonial assets when the Court is granting or subsequent to the grant of divorce or separation and not upon annulment of a voidable marriage. However, section 98(1) saves anything lawfully done during the subsistence of the voidable marriage. This, in our view, likely means that a wife has the right to a share of the properties lawfully acquired during subsistence of the voidable marriage. A mere fact that the marriage was voidable right from the time of contracting it does disentitle a spouse to a share of the properties jointly acquired during subsistence of such voidable marriage. We also suggest you consult your attorney for further guidance.