Division of matrimonial property in presumed marriages in TZ

DAR ES SALAAM: I WAS recently having a conversation with my peers about presumed marriage and a question came up that made me think about the practical side of the law.

We often discuss whether the law recognises couples who have lived together for years without formally getting married. But someone asked, “Sawa, lakini hawa watu wakiachana, process inaanzaje? Unaenda wapi? Na unadaije mali mlizochuma pamoja?”

In other words, when the relationship ends, where do you begin, and how do you claim the property you acquired together? It is a question worth asking because, in our society, people build entire lives together without necessarily having a marriage certificate.

A couple may spend ten years together, raise children, build a house, buy land and start a business.

Their families know them as husband and wife. Their neighbours know them as husband and wife. Then the relationship breaks down and suddenly one person says, “The house is mine. My name is on the title deed.”

The other is left wondering whether all those years of contribution count for anything. This is where presumed marriage moves from a legal concept to a very practical concern.

The question is not simply whether the relationship existed, but how the law can be approached when the parties disagree about what should happen to the property they built together.

First, does the law recognise the relationship?

Section 160(1) of the Law of Marriage Act, Cap. 29, provides for a rebuttable presumption of marriage where a man and a woman have lived together for two years or more in circumstances that give them the reputation of being husband and wife.

The important point is that two years of cohabitation alone does not automatically establish a presumed marriage.

The surrounding circumstances matter and the presumption may be challenged. So, if you find yourself in this situation, the first question is whether the facts support a presumed marriage under the law. How did you live together?

Were you regarded by your families and community as husband and wife? What evidence can support that position? These are not merely details about your private life.

They may become important when the court is asked to determine the legal status of the relationship.

Where do you begin?

Once the relationship breaks down, it may be tempting to go straight to court and ask for half of the house, the land or the business.

But there is an important legal step that cannot simply be skipped: the court must determine the question of presumed marriage before proceeding to the consequential reliefs.

In Gabriel John Musa v Voster Kimati, Civil Appeal No. 344 of 2019, the Court of Appeal of Tanzania explained that a court should not proceed directly to divide alleged matrimonial property without first determining the question of presumed marriage.

The Court also emphasised the need to address the appropriate decree of divorce or separation before granting consequential reliefs.

Furthermore, under Section 76 of the Law of Marriage Act, concurrent matrimonial jurisdiction is granted to Primary Courts, District Courts, Courts of Resident Magistrate and the High Court.

Choosing the appropriate forum depends on the value of the property involved and the applicable law, including customary or Islamic law principles in Primary Courts and the statutory limits applicable to higher subordinate courts.

Parties must also take note of Section 101 of the Act, which generally requires matrimonial disputes to be referred to a Marriage Conciliation Board before instituting divorce proceedings. What does this mean in practice?

The claim must clearly put the existence of the presumed marriage before the court for determination. It should explain the history of the relationship, the period of cohabitation, the circumstances in which the couple were regarded as husband and wife, and the relief being sought.

The appropriate procedure and documents should be confirmed with an advocate or legal aid provider, because a claim based on presumed marriage should not automatically be treated as identical to proceedings involving a formally contracted marriage.

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What evidence will you need?

Now, let us talk about evidence, because this is where the matter can become complicated. It is one thing to say that you lived together as husband and wife and another to support that claim when it is disputed.

Evidence may include testimony from relatives, neighbours or community members who knew you as a couple, as well as relevant records showing the nature and duration of your shared life.

Documents relating to children, a shared home or other aspects of the relationship may also be relevant, depending on the circumstances.

For the property itself, keep purchase agreements, land documents, construction receipts, bank statements, business records and other evidence showing how the assets were acquired. Evidence of contributions is particularly important.

You may have paid for building materials, contributed money towards purchasing land, managed a business or played a significant role in maintaining the household while your partner earned an income.

Do not assume that a contribution only counts when money passes directly from your bank account to the seller.

Domestic work, caring for children and supporting the household may also be relevant to assessing contributions.

However, the court must consider the evidence; a claim cannot succeed merely because one party says they contributed.

Section 114 of the Law of Marriage Act empowers the court, in the circumstances to which it applies, to divide assets acquired during marriage through the parties’ joint efforts.

In determining the appropriate division, the court considers factors including each party’s contribution in money, property or work, relevant debts contracted for their joint benefit, and the needs of any children of the marriage.

The law also provides for consideration of assets owned before the marriage but substantially improved during it. The principle is important, but it must be applied carefully in presumed marriage cases.

The court must first determine the legal status of the relationship and follow the applicable process before granting the relevant reliefs. The title deed is important evidence, but the question of entitlement must be considered in light of the applicable law and the facts established before the court.

What if the presumption is rebutted?

There is another possibility: the court may find that the presumption of marriage has been rebutted, meaning it has not been established that there was a presumed marriage. Does that mean the conversation ends there? Not entirely.

Section 160(2) specifically provides that, where the statutory conditions are satisfied, the woman may apply for maintenance for herself and every child of the union. The court may also grant other reliefs, including custody of children, within the scope of its jurisdiction under the Act.

These provisions are important because the legal consequences of a rebutted presumption are not necessarily the same as those of an established presumed marriage.

However, a claim for division of property cannot simply proceed on the assumption that Section 114 applies in exactly the same way after the presumption has been rebutted.

Any separate claim concerning property would need to be assessed under the appropriate legal basis and supported by evidence. Do not assume that you have no rights simply because there was no formal wedding.

At the same time, do not assume that years of cohabitation automatically guarantee you half of everything. Establish the facts, preserve your documents, seek legal guidance and make sure the claim is brought through the appropriate procedure.

When two people build a life together, the end of their relationship can leave more than heartbreak. It can leave questions about a home, land, children and years of shared effort. Understanding the law is an important first step towards addressing those questions.