PROPERTY RELATION BETWEEN HUSBAND AND WIFE

Property relation is among legal effect of marriage and it can be viewed into two positions that is in common law context and in Tanzania context.

At common law it is the duty for the husband to maintain the wife and wife can even sue the husband for failure to do so. Even this duty at common law in the past, one a woman was married she was required to surrender all her properties to her husband, since it is the duty of husband to maintain the wife the husband become the trustee of wife’s property.

Due to life stress it was observed that men died earlier than women. When the husband died all the property was vested to wife and children but it arose the problem when the wife was the first to die. That when the wife dies first all the property were vested to children and the property were taken form the possession of husband even if the matrimonial property home is the place where couple usually reside  belong to wife were taken to children. As a result, reforms were made to the law, the law changed and made women property act of [1882] was enacted under this act the position was the married woman has the right to own property obtained prior and after the marriage. [Still the position in UK to date]

In Tanzania context, the property relation is provided under Section 56 of Law of marriage Act  which provide that woman has the right to acquire property as man did and under the law of marriage Act are divided into two:-  

Personal property, provided under section 58 of Law of marriage Act . This section recognizes the existence of separate property of husband and those of wife that is marriage does not change ownership of property acquired before the marriage. It does not prevent spouse from owning, acquiring or disposing property during subsistence of marriage. The case of Abdallah Shamte v Mussa 

Joint property, joint property of married couple includes matrimonial home and other property jointly acquired during subsistence of marriage. Section 2 Law of marriage Act  defines matrimonial home as the building or part of the building which the husband and wife resides together. Matrimonial home is presumed to be under ownership of couple neither of parties can alienate one self without the consent of  the other as per Section 59 (1) law of marriage Act  the same position is reflected under Section 114 of Land Act  [as amended] 2004 according to these provision if there is not such consent from the other part in case of creation of mortgage then the mortgage will be considered invalid in eyes of law. 

The property relation between spouses during subsistence of marriage can be seen in other matrimonial properties and Section 60 of Law of marriage Act  provide for presumption of property acquired during the subsistence of marriage if the property is in the name of husband and wife then there shall be rebuttable presumption that the beneficial interest there in are equal if it is the name of husband alone or wife alone there shall be rebuttable presumption that the property belong absolutely to that person whose name appear to that property.

In the case of Bi Hawa Muhamed vs. Ally Sefu   The appellant and respondent were wife and husband respectively until the dissolution of   their marriage by a court decree of the Primary Court of Ilala District at Kariakoo, Dar es Salaam in 1980. In subsequent proceedings the Primary Court held that the appellant was not entitled to any share in the matrimonial assets as she was a mere wife and that the house was bought by the husband's money. On appeal to the High Court, the Primary Court's decision was substantially upheld. This is a second appeal.

Held: (i) Since the welfare of the family is an essential component of the economic activities of a family man or woman it is proper to consider contribution by a spouse to    the welfare of the family as contribution to the acquisition of matrimonial or family assets;

(ii) the "joint efforts" and 'work towards the acquiring of the assets' have to be construed as embracing the domestic "efforts' or "work" of husband and wife;

(iii) where a spouse commits a matrimonial mis-conduct which reduced to   nothing her contribution towards the welfare of the family and consequential acquisition of matrimonial or family assets she or he would not be entitled to a share in the property.

Law of Marriage Act [CAP 29 R: E 2002]