Q&A – 30 April 2012
Compelling partner for HIV test
My boyfriend and I have been in a relationship for six months and intend to get married. Whilst I have accepted his proposal, I have a condition that both of us should go for a HIV/AIDS test before we proceed. Surprisingly he has refused on grounds that he is healthy and doesn’t see the need of doing the test. Should I get married to him? What can I do?
TJ, Tabora
The law in Tanzania does not allow compulsory HIV testing unless there is consent of the person to be tested. There are however circumstances where HIV testing may not require consent like where there is a Court order, donor of human organs/tissue and to sexual offenders. Your boyfriend does not fall under any of the above categories and hence you cannot force him to do the test.
On a different note, it is worthwhile to inform your boyfriend that it is an offence under our law to intentionally transmit HIV to another person. The offence is imprisonable for between 5 to 10 years.
Being healthy does not mean you are free of HIV/AIDS- we suggest both of you seek services of a HIV/AIDS counselor. And as to whether you should get married or not, unfortunately as lawyers we are not qualified to answer this question.
New husband marrying my daughter
I was married for over 20 years and our marriage was not blessed with any child. We adopted a child who we have been raising over the past many years. My husband is no more as he succumbed to Alzheimers about 5 years ago. Recently I met a nice younger man whom I got married to only to find out that he then started having an affair with my adopted daughter. I had no choice but to get divorced only to find out that my ex husband and adopted daughter now intend to get married.
My lawyers tell me that it is difficult to stop a marriage as it is a contract between two parties and I cannot interfere. What should I do?
EL, Mwanza
Your lawyers are right to the extent that marriage is a contract. However as to whether you can stop the marriage, we believe you can.
According to the Law of Marriage in Tanzania, a father is prohibited from marrying his own child or from marring the child of his former spouse(s). Your ex husband might argue that the young lady he is now dating is not his daughter, neither your daughter, as she was adopted by you. However the law recognizes her as your daughter and hence under our laws, your ex cannot marry her.
Also under our Penal Code any male person who has prohibited sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence of incest, and is liable on conviction, if the female is of the age of eighteen years or more, to imprisonment for the term of not less than twenty years. It is immaterial that the sexual intercourse was had with the consent of the woman.
Your daughter is also committing a crime. The Penal Code states that any female person of or above the age of eighteen years who with consent permits her grandfather, father, brother or son to have carnal knowledge of her (knowing him to be her grandfather, father, brother or son as the case may be) commits the offence of incest and is liable to imprisonment for life or imprisonment of not less than thirty years and shall, in addition, be ordered to pay compensation of an amount determined by the court to the victim in respect of whom the offence was committed. It can be debated whether your ex husband can be deemed to be your daughter’s father, but all in all, the crime of incest would still be committed by your ex.
You can object to the Church where the marriage is going to take place or make an application in Court. You can also report the matter to the police station for the act of incest is a criminal offence.
Purchase of land in Dar
I am entering into a contract to buy a piece of land in Dar. How do I go about it and what should I do?
ER, Dar
Firstly, make sure a proper due diligence is done of the land. Start by lodging a search at the Registrar of Titles to make sure the seller is indeed the seller and that there are no mortgages, caveats or other encumbrances on the piece of land you intend to purchase. Secondly, make sure that you take the original title deed to the Registrar of Titles for physical verification. There are a lot of fake title deeds available in the market and you need to be extremely sure that the one you will ultimately be holding is genuine. Since the land is not developed, it is important for you to make sure with the Registrar that there is no double allocation. A number of empty plots have disputes over double allocation and the matter lands up in Court.
Thirdly, it is not a bad idea to speak to the neighbours to identify the seller to you. Make sure you are dealing with the seller or his duly appointed Attorney. You should also avoid making cash payments for the purchase- amounts should be deposited into the seller’s bank account.
With the above due diligence done, you will be required to draw up a sale agreement for the land, and fill out and sign some standard land forms. A valuation report will be required for the assessment of capital gains tax, which is usually 10% and paid for by the seller, unless agreed otherwise There is also a stamp duty of 1% and a registration fee of 0.25% of the value of the transaction as approved by the government valuer, which are paid for by the buyer.
All in all, if the above is cleared, the transaction should not be complicated. It is not unwise to engage the services of your lawyer.