My husband left Tanzania for overseas to look for employment. In the first five months of his arrival overseas he was phoning me almost every two days. Now it is 4 years and he has not phoned and I have also failed to reach him. Even his parents are asking me if I have ever heard of him because they haven’t heard from him. In this situation does the law allow me to contract another marriage?
Section 161 read together with sections 94 and 95 of the Law of Marriage Act [Cap.29 R.E 2019] expounds the procedure for contracting another marriage if a spouse has not been heard from for a long time. A party to a marriage can contract another marriage on the basis of the absence of his spouse if the spouse alleged to be absent has not been heard for 5 years by those who might be expected to have heard of him if he/she were alive. This presumption is the spouse is dead.
The spouse who wants to rely on the presumption of death in order to contract another marriage may file a petition for the Court to grant her/him a decree declaring that her/his spouse is presumed dead for not being heard for 5 years. A decree declaring that one of the parties to the marriage is presumed dead becomes effective 90 days after it is issued. However, if there is an appeal against the declaratory decree of the presumption of death, the decree becomes effective after the determination of the appeal or the second or final appeal, if any. After expiration of 90 days from the date of grant of orders, the spouse intending to contract another marriage can proceed with the process of contracting another marriage.
Furthermore, marriage is deemed to have broken down irreparably if the spouse petitioning the Court for divorce has proved that he/she has been deserted by a marriage partner for 3 years consecutively. If the Court is satisfied with the proof of desertion and further proof that the desertion is willful, the Court can proceed to grant a decree of divorce after which you proceed to contract another marriage.
Since it is only 4 years since your husband has not been heard or seen by those who would have been expected to hear about him had he been alive, you cannot petition the Court for declaratory decree that your husband be presumed dead for absence. You can only petition for divorce on the basis of desertion for 3 years if you can prove that his absence from home is willful. If the divorce petition is granted, you can proceed to contract another marriage otherwise you will need to wait for 1 more year.