Q&A – 26 February 2018

Long distance wedding

I am a very busy person working in a very large company outside Tanzania. My wife insists that we get married under Tanzania laws and I am not able to come here. Can I send in my wedding forms to the registrar in Dar es Salaam and he gets us married via skype? I know some jurisdictions that allow such type of wedding where you don’t need to be physically present. Alternatively my brother can attend and sign on my behalf under power of attorney. How can I get married and not come there?
GO, Dar

Much as we appreciate you are a ‘very busy man’ working for a very ‘large company’, you must be present in the room when you sign your marriage papers. You cannot be on a conference call, skype or send in your papers. Marriage is a very solemn ceremony and the Law of Marriage specifically provides that you must be physically present by stating that a marriage is void from the beginning unless both parties are present in person at the ceremony. We have not heard of jurisdictions that allow such type of ‘long distance weddings.’

As for your brother attending the wedding, please be informed that you cannot give him power of attorney to sign the wedding papers. For all we know, if he signs the papers, he may end up becoming the husband to your current girlfriend.

However your lawyers can further guide you.

Director versus shareholder

I am both a shareholder and director in a company. I fail to understand the difference. Sometimes we meet as a board, usually every quarter. Sometimes we meet as shareholders. The problem is that there is one of us who is only a director and not a shareholder. I am ashamed to ask this basic question especially considering that I have been in business more than 35 years. Can you explain the difference?
HF, Dar 

Shareholders and directors have two completely different roles in a company. The shareholders (also called members) own the company and the directors manage it through the management. Unless the articles say so (and most do not) a director does not need to be a shareholder and a shareholder has no right to be a director. These are different roles.

The separation in law between directors and shareholders can cause confusion in private companies. If two or three people set up a company together they often see themselves as ‘partners’ in the business. That relationship is often represented in a company by them all being both directors and shareholders. The problem with this is that company law requires some decisions to be made by the directors in board meetings (what you have been having quarterly) and others to be made by the shareholders in general meetings, which is held once every year. To complicate matters further, some decisions have to be made by the directors, but only with the shareholders’ consent.

Whether a particular decision has to be made by the board meeting or the general meeting, or both, depends on the provisions of the Companies Act and/or the company’s articles of association. For example appointment of an auditor can only be done by the shareholders. Some companies have reserved matters that the directors must consult the shareholders on, an example being entering into a large investment that will expose the company.

In your case you are both a director and shareholder and hence sit at all levels. This director and shareholder confusion has existed for years and this is nothing to get embarrassed about. Your lawyer can educate you more on this.

Impotence and marriage

I got married to a man in an arranged marriage only to find out that he is impotent. Much as I would like to help him, this is proving to be impossible because the condition is not treatable. Can this marriage stand?
ER, Dar

Generally, impotence is a physical or psychological condition that makes it impossible for a spouse to engage in sexual intercourse. However withholding sex from your spouse doesn’t qualify as impotence. Nor does the inability to produce a child.

Generally speaking if you petition your spouse for divorce on the grounds of impotence, you’ll have to prove your case. This might require you to ask the Court to require your spouse to undergo a physical or psychological examination and medical experts can be called to testify.

Section 39 of the Law of Marriage Act in Tanzania states that subject to the provisions of sections 97 and 98, a Marriage shall be voidable if- (a) at the time of the marriage- (i) either party was incapable of consummating it; or (ii) either party was subject to recurrent attacks of insanity or epilepsy; or (iii) either party was suffering from venereal disease of a communicable form; or (iv) the wife was pregnant by some person other than the husband; or (b) the marriage has not been consummated owing to the willful refusal of one party to consummate it; or (c) the wife had not attained the age of eighteen years and consent to the marriage as required by section 17 had not been given and the Court sees good and sufficient reason to set the marriage aside. 40. A voidable marriage is for all purposes a valid marriage until it is annulled by a decree of the Court.

From the above you can see that since your husband at the time of marriage was unable to consummate, the wedding is voidable ie able to be set aside and hence you can apply for a divorce. The law does not say it is void ie invalid from the beginning which would mean that you need not file for divorce. Your lawyers can guide you further.