Q&A – 17 August 2020

Non-consummation of marriage due to COVID-19

I am a Tanzanian married to a Kenyan and at the time COVID-19 travel restrictions were imposed by the Kenyan and Tanzanian Governments, my wife got stuck in Kenya and I am here in Tanzania. We have thus not consummated our marriage for the period of over six months now. I once heard if a marriage is not consummated for such a period it can be considered dissolved. Is it true? Can I proceed to remarry or will it be against the law.
DT, Arusha

We are sorry to hear that the COVID-19 travel restrictions have left you to be far from your wife. We do understand that such travel restrictions have affected people intending to travel for family as well as business issues. You have not mentioned whether you got married in Kenya or in Tanzania but we shall respond to you based on our Tanzanian laws assuming the marriage was contracted in Tanzania.

Under our Law of Marriage Act a marriage does not legally end or get annulled just because the parties to such marriage have not consummated the marriage even if they are both willing to do so. The marriage can be considered voidable and further get annulled if, at the time of the marriage either of the party was incapable of consummating the said marriage or if one of the party willfully refuses to consummate the marriage. In such circumstances a marriage can be a voidable marriage and after following legal procedures provided under our law, can be annulled.

In your case both of you are capable of consummating the marriage as your explanation indicates and are also willing to do so, only that you are far apart and hence unable to proceed to do so. This, therefore, cannot be a reason for the marriage to be annulled.

Even if it had to, there is a legal procedure to be followed before it gets annulled and you can, thereafter, be able to marry again. As for now your marriage is legally existing and based on it being a monogamous marriage, you cannot contract any other marriage.

We hope you are not trying to use the COVID-19 crisis and the ‘6 month rule’, which doesn’t apply, to seek for annulment as this will not work.

Forceful transfer of shares

I am British and my father used to own a company in Tanzania engaging in hunting activities and having a number of hunting blocks. He is now very old and has signed all documentation to leave the company to me. I do know he has Tanzanian partners in the company although he was the majority owner. I do not trust these people as am sure they are not honest with my father since he was in UK for most of the time. I want to remove them and own the company fully by myself. Is it possible? Where do I start?
RM, London

It is a bit strange to hear that you do not trust people who have worked or being business partners with your father for years. However for purposes of an answer this is irrelevant for now.

When you register a company in Tanzania and in this case being a company limited by shares, the owners become shareholders to the company as they own the shares. Shares can be transferred from one person to another based on certain legal procedures imposed by the law and the constitutional documents of the said company. Therefore, your father must be owning a number of shares (majority shares as you mentioned) and the other partners (shareholders in this case) must be owning a certain number of shares.

Unfortunately, and rightly so, you cannot just remove someone from the company while that person owns shares. He has to willingly and as per the constitutional documents of the company transfer the shares to you or to another person should he wish to do so. This is not a photocopying exercise and the person must agree to such a transfer.

Moreover, under the Companies Act of Tanzania, the company limited by shares can have a minimum of two shareholders. Hence, even if the other shareholders would agree to transfer the shares, you will still need to have another shareholder in the company as the law does not allow you to be the only shareholder.

In addition, apart from the above, the Wildlife laws in Tanzania requires a foreign company engaged in hunting to have a minimum of 10% shareholding owned by a Tanzanian citizen. Therefore, for a company to be eligible to be granted hunting block rights, it must adhere to such requirements of the law.

This, therefore means that even if you are to part ways with the current Tanzanian shareholders in the company, you will still require a Tanzanian shareholder or shareholders in the company who should own a minimum of 10% of the total shareholding of the company for you to be in compliance with the wildlife laws and be able to continue doing wildlife activities including hunting in the said hunting blocks. We advise you to consult your lawyer for further guidance as you seem to be oversimplifying the problem and may end up losing the block if you do not comply.

Stopping my wife from flying

My wife loves to fly and at the first possible chance she will go on a trip for work. How can I control her? Can I get an order from Court to get her to sit at home?
TY, Mbeya

The answer is no. You cannot get an order to stop your wife from flying. Your wife is not an asset on your balance sheet that you can control as you deem fit. Also, flying is legal and you cannot stop her from doing so. She has all the right to continue to fly. What you can however do, is consider a divorce with her if she is abandoning you or you have other grounds for divorce. Remember, the law looks at both partners having equal rights hence those olden days where the wives were made to sit at home and cook are far gone.

We suggest you both seek the services of a marriage counselor.