The Proposed abolition of de facto unions in Tanzania: a case of sailing against the social current

Abstract

In April, 1994, the Law Reform Commission of Tanzania (LRC) recommended,inter alia, that section 160 of the Law of Marriage Act (LMA), be repealed because it constitutes “an unnecessary encroachment [on] the sanctity of marriage and [is] contrary to the spirit of the Law of Marriage Act”. Subsection (1) of the offending section enacts a statutory presumption of marriage in favour of reputed de facto unions that have existed for a minimum of two years. Subsection (2) states that once the presumption is rebutted, the woman cohabitant and the children born of that union become legally entitled to apply to the court for economic support from the male partner. In these proceedings the court has similar jurisdiction as a divorce court, including the making of orders for the division of assets jointly acquired by the couple and the determination of who is to have custody of the children. In 1971 when section 160 was enacted, it was widely recognized that de facto unions had become a social fact which the law could not ignore. Hence, the decision to extend to these unions the same legal consequences that follow a formal dissolution of a legal marriage. However, in so doing the legislature had indirectly raised and yet left open a number of important questions that have continued to engage the minds of judges.