- Published on Thursday, 05 July 2012 02:45
- Written by FB ATTORNEYS
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I am Catholic who got married to a man four years ago and are blessed with two kids. Recently I have discovered that my husband has another wife in Dar es Salaam whom he married in a Christian marriage. Upon close follow up, I have discovered that he actually abandoned his family for me and no divorce was granted. Can my husband be married to two women?
The law of marriage in Tanzania recognizes marriage as a union between a man and a woman intended to last for their joint lives. Furthermore the law recognizes a Christian marriage as a monogamous marriage. A monogamous marriage is a union between one man and one woman to the exclusion of all others. Also the law of marriage recognizes only the following ways which could bring the marriage to an end: (a) by the death of either party thereto; (b) by a decree declaring that the death of either party thereto is presumed; (c) by a decree of annulment; (d) by a decree of divorce; or (e) by an extra-judicial divorce outside Tanzania.
Since your husband did not get a divorce before he married you, his former marriage is still valid and subsists. The law also prohibits a man in a monogamous marriage to contract another marriage. Under section 15 of the act, “No man, while married by a monogamous marriage, shall contract another marriage.” When your current husband married you, he was incompetent to do so and your marriage is likely void. We recommend you consult your attorney for further guidance. Substitution of charge after evidence Two years ago my uncle was charged of raping a 20 year old. He pleaded not guilty and the prosecution side brought three witnesses. Surprisingly, when the third witness appeared, the prosecution side substituted a charge to that of incest by male. After defence hearing he was convicted and sentenced to 20 years in jail. Was it fair to substitute a charge?
Substitution of a charge is governed by section 234 of the Criminal Procedure Act wherein the prosecution side can amend and substitute a charge at any stage of the trial for various reasons like defectiveness of the charge in its substance or form. However, after substitution, the Court shall inform the accused the right to recall witnesses to give evidence afresh or be further cross-examined by the accused. All these procedures should be indicated in the Court records. Any omission of these procedures is treated as a serious error capable in law of vitiating the decision arrived at. Since your facts are silent as to whether these procedures were complied with, your uncle might have good appeal grounds and we recommend you consult your lawyer.
Disagreement over arbitrator
I always thought that arbitration was the best way forward in disputes only to realize that it can sometimes take longer than the Court system. Our company is at loggerheads with another company in Dar and our lawyers have not managed to agree on who the arbitrator should be. It is the ninth month and the dispute on who the single arbitrator should be has not been resolved. What should we do? Can we go direct to Court?
The Arbitration Act provides for such a situation in that the Court can appoint an arbitrator where a submission provides that the reference shall be to a single arbitrator and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator.
Hence you can file an application in Court and the Court can appoint an arbitrator to enable you begin arbitration proceedings. As to whether you can go directly to Court to resolve the matter, this is not possible as both parties agreed to arbitration. However if both of you are in agreement that you skip arbitration, then the Courts will have jurisdiction to entertain the dispute. Otherwise you have to stick to arbitration.
Stabbing at bar
We were enjoying drinks at a bar one evening when a street vendor selling CDs started bothering us. He was forcing us to buy some of his CDs and despite several requests for him to leave, he persisted that we support him. One of my friends who was heavily drunk stood up and punched him in the face breaking his nose. The CD seller took advantage of this and reported the matter to the police who arrested my friend. How can my friend be charged when he was not in a proper state after heavy drinking? What do you suggest?
The CD seller did not take advantage of the punch but rather did the right thing in reporting your friend to the police. Under our criminal law, self induced intoxication does not constitute a defence. The law states that intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know what he was doing and (a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. It is very unlikely that any of these defences apply in the case of your friend. Intoxication will not absolve your friend of liability and you should consult your lawyer for further guidance.