Abstract

This Article explores the unique legal issues surrounding polygamous marriage and divorce in mainland Tanzania, and submits that the Law of Marriage Act of 1971 (LMA) should be amended to include a provision that governs co-wives’ property interests in the case of divorce. Moreover, it proposes awareness-raising efforts to increase legal literacy and to promote the rights of co-wives. Under Section 10(1) of the Act, a marriage is defined as “the voluntary union of a man and a woman, intended to last for their joint lives,” and may either be monogamous or polygamous (or potentially polygamous). Further, under Section 57, no wife in a polygamous marriage holds a superior position in matrimonial homes than any other wife. Effectively, under the LMA all co-wives have equal rights and obligations while they are married. But what about after a divorce? Although a plain reading of Section 57 could logically extend equal rights and obligations to co-wives upon divorce, Tanzanian courts have not interpreted it this way. In Maryam Mbaraka Saleh v. Abood Saleh Abood, a senior co-wife was unsuccessful in reopening divorce proceedings concerning her husband and a former co-wife. Previously, the ex-wife had won her case before the Court of Appeal, which held that she was entitled to forty percent of the marital property, based on her contribution. The fact that the husband was engaged in a polygamous marriage was never raised until the remaining co-wife sought to secure her share of the assets. The Court of Appeal declined her request for relief because she was not a party to the original divorce proceedings. Thus, although the LMA contemplates both monogamous and polygamous marriage, it only appears to contemplate the divorce of monogamous couples. Because non-divorcing co-wives cannot be a party to divorce proceedings, and only parties can claim a stake in marital assets, the LMA currently offers no means for non-divorcing co-wives to claim a stake in marital property. This Article argues that the LMA fails to protect the property rights of all co-wives upon divorce, and that reform is imperative as Tanzanian divorce rates increase. Numerous articles have been written about succession and property rights relating to marriage in Tanzania, but no scholarship specifically examines these rights within the context of a polygamous marriage, which account for approximately one fourth of all Tanzanian marriages. To the extent that divorce is on the rise in Tanzania, this issue is both timely and consequential.

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