The Two Years Principle in the Law of Marriage.

Pmanase
The two years rule as applied in the law of marriage, particularly section 100 of the LMA of Tanzania.

Tumaini University Makumira April 2012 4/1/2012

Introduction The two years rule is a rule or principle that bars parties to a marriage from instituting proceedings for divorce before the expiration of a period of two years from the date of the marriage. This rule proceeds from the understanding of a marriage as defined in the case of Hyde .V. Hyde (1866) and in section 9 (1) of The Law of Marriage Act1 as being intended to last for the rest of the joint lives of the two spouses.2 Origins This rule has its origins in the English ecclesiastical courts. The English ecclesiastical courts adopted the doctrine of indissolubility of a marriage. Under this doctrine, ecclesiastical courts had no power to pronounce a decree of divorce vinculo matrimonii3 which would permit the parties to remarry. They could only pronounce decrees of restitution of conjugal rights and divorce mens et thoro.4The only way in which a party could obtain a divorce vinculo matrimonii was by an act of parliament, the expense of which was sufficient to put relief beyond the hope of most. It was until 1937 that the grounds for the dissolution of a marriage were extended by permitting either spouse to base his/her petition on the others cruelty, desertion or supervening incurable insanity, whereas before 1938 it had always been necessary for the petitioner to show that the respondent had committed a

(Cap 29 R. E. 2002) A marriage is defined as a voluntary union of man and woman intended to last for their joint lives. 2 Andreas Rahmatian, Termination of Marriage in Nigerian Family Laws: The Need For Reform and the Relevance of the Tanzanian Experience, International Journal of Law, Policy and the Family 10, (1996), 281-316. 3 Vinculo Matrimonii is a Latin term that means "from the bonds of marriage." it is a term that refers to a complete divorce, as opposed to a partial divorce, called a mensa et thoro which means from board and hearth. it is a kind of divorce which does not dissolve the marriage bond, but merely authorizes a separate life of the husband and wife. this is similar to a court-sanctioned separation where the husband and wife are not legally obligated to live together, but their marriage has not been dissolved.(source http://definitions.uslegal.com/a/a-mensa-et-thoro/) 4 LB Mchome Lecture notes.

matrimonial offense.5 However, a counter balancing restriction was placed upon the presentation of a petition during the first 3 years of the marriage; no petition could be presented during this period, partly to prevent persons from rushing into marriage and partly to prevent them from running out of it again without at least having some time to try make success of it.
6

It was only where an arbitrary application of this rule would bring injustice to some petitioners, that the court had power to grant leave to present a petition before the expiration of such a period, if the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent.
7

However, when The Matrimonial and Family Proceedings Act 1984 came into effect in England in October 1984 the time bar for divorce the minimum interval of time which has to elapse between the date of marriage and that of being able to file a petition for divorce was reduced to 12 months with no discretion. No petition can now be filed under any circumstances within the first year of marriage.8 The Law of Marriage Act of Tanzania; The Law of Marriage in Tanzania has its origins from the colonialists especially the British who introduced it through the Tanganyika Order in Council (T.OC.) of 1920. Due to this, a similar counterbalancing restriction applies in Tanzania albeit for a different length of time. Section 100 of The Law of Marriage Act emphasizes that no person shall be allowed to petition for the divorce before the expiry of TWO years except where leave is granted by the court. It further provides that, leave shall not be granted to petition for divorce within two years of marriage except where it is shown that exceptional hardship is being suffered by the person applying for such leave.9

5 6

Ibid. The Law of Marriage and Divorce, Kenya Sweet & Maxwell, London 7 Ibid. 8 David Hodson , An In-Depth Review Of Family Law in Britain, A Policy Report By The Family Law Review ( 2009) 9 Law of marriage Act Tanzania Cap 5 of 1971 Re 2002, Section 100 (2)

In enacting this section and indeed the whole Act, Parliament was endorsing the sanctity of the marriage contract as a binding and permanent commitment, not to be lightly entered into on the spur of the moment, or on a 'trial' basis, or in order to gain advantages of residence or citizenship. So too divorce is not available on demand but only on specified grounds leading to the conclusion that the marriage has broken down irretrievably.10 This restriction has an intention of enabling the two parties to reconcile and continue holding to their promises.11 It promotes the stability of marriage and family life and sees divorce as the last resort. Therefore, divorce can only be granted after two years from the date of the marriage which it is sought to dissolve. (s100).12 As shown above, this rule is not absolute. In cases where injustice can be occurred by the arbitrary application of this rule, the courts will always grant leave to petition. However this is only where the applicant has proved exceptional hardship or depravity. What amounts to exceptional hardship or depravity? The courts have declined to fetter their discretion by laying down any general rules for its exercise, but it should be noted that the hardship or depravity must be exceptional, so the mere fact that the respondent committed adultery or cruelty cannot per se be a ground for giving leave.13 However the following case law may shed some light. In the case of Maswabi V. Maswabi14 it was postulated that, hardship or depravity suffered by a spouse must be shown to be something out of the ordinary, judged by prevailing standards of acceptable behavior between spouses.

10 11

Kirby J, Kgosiemang V Kgosiemang 2008 (2) Blr 63 (Hc) Ibid. 12 Rwezaura, Tanzania: Building a New Family Law out of A Plural Legal System, University of Louisville Journal of Family Law (1994-1995) 13 Supra note 4 14 1999 (2) BLR 384 (C)

In this case the applicant wife brought an application seeking an order granting her leave to institute divorce proceedings against the respondent before the expiry of two years from the date of marriage. She alleged in her affidavit that the respondent subjected her to physical abuse and even threatened to kill her. Attempts to reconcile them failed as the respondent would beat her in the presence of the would-be conciliators. The applicant said that she was not interested in reconciliation: she had no love for the respondent and only prayed to be granted an order to institute divorce proceedings. The respondent admitted the assaults as alleged by the applicant, but averred that they were occasioned on account of the applicant's flirtation with another man. He denied that his wife had suffered any exceptional hardship and said that he was prepared to reconcile with his wife as he still loved her. After careful examination of the statements made by both parties in their sworn affidavits and in the light of the relevant authorities cited, the applicant's allegations did clearly amount to exceptional hardship suffered by instance of the respondent. In another case, Ritcher V Ritcher15 , the court held that unreasonable behavior coupled with aggravating factors such as drunkenness and extreme violence could constitute exceptional hardship particularly in a case where the health of the spouse in question had suffered. The applicant husband in this case petitioned the court for divorce within two years of the marriage. By virtue of section 21(2) of the Matrimonial Causes Act leave can only be granted within two years of marriage on grounds of exceptional hardship suffered by the applicant or on grounds of exceptional depravity on the part of the respondent. In his evidence the applicant alleged that the wife drank excessively and was uncontrollably drunk almost every night of every week. When drunk she frequently assaulted the husband with knives, stones and other missiles. As a result of the domestic situation his health suffered. her at the

15

1985, BLR 46 (HC)

In this case the evidence quite clearly showed that as a result of the wife's behavior and her treatment of the husband his health had suffered and consequently he was being caused exceptional hardship for that behavior. In the case of Kgosiemang V Kgosiemang16 nine months after their marriage, the applicant approached the court for leave to institute divorce proceedings against the respondent, pursuant to the provisions of s 21(2) of the Matrimonial Causes Act.17 He brought his application on the ground that he was suffering exceptional hardship in the marriage inasmuch as the respondent accused him of being unable to provide for her and her children from a previous marriage, she publicly accused him of infidelity and sexual inadequacy, she had threatened to assault and twice assaulted him, she was overly possessive and paranoid, she had deserted the common home taking joint property with her and meetings between the parties' parents to promote reconciliation had failed. The court held that mere irretrievable breakdown of the marriage was an insufficient ground for the grant of an order in terms of s 21(2) of the Matrimonial Causes Act.18 There had to be some added element which rendered the respondent's behavior exceptionally depraved or the hardship suffered by the applicant exceptional. In conclusion, this rule is a reflection of the importance attached to marriage as a social and economic institution and in some cases a religious act. Marriage is seen as a status and thus, requires serious reason to be undone, or it is a contract and breach of the contract requires it to be shown that one or other party has failed to fulfill his or her obligations under it.19 BIBLIOGRAPHY; Books; Eleine E Sutherland, Child and Family Law, Tottel Publishing (2006)

16 17 18 19

2008 (2) BLR 63 (HC), The Matrimonial Clauses Act of Botswana Cap 29:06. Ibid. Eleine E Sutherland, Child And Family Law, Tottel Publishing (2006) Pg 561

Journals; Rwezaura, Tanzania: Building a New Family Law out Of a Plural Legal System, University of Louisville Journal of Family Law (1994-1995) Andreas Rahmatian, Termination of Marriage in Nigerian Family Laws: The Need for Reform and the Relevance of the Tanzanian Experience, International Journal of Law, Policy and the Family 10, (1996), Cases; Maswabi V. Maswabi (1999) (2) BLR 384 (HC) Ritcher V Ritcher (1985) BLR 46 (HC) Kgosiemang V Kgosiemang (2008) (2) BLR 63 (HC) Statutes; The Law of marriage Act of Tanzania, 1971 The Matrimonial Clauses Act of Botswana, 2006 Reports; David Hodson, An In-Depth Review of Family Law in Britain, A Policy Report By The Family Law Review (2009)