The problems underlying the application of the doctrines of breakdown of marriage irreparably and the welfare principle in Tanzania
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Date
2001
Authors
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Journal ISSN
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Publisher
University of Dar es Salaam
Abstract
This dissertation examines two doctrines which are applied by the courts in determining whether the marriage should be put to an end because the parties to it can no longer live together in harmony.
In applying the doctrines of breakdown f the marriage irretrievably and the welfare principle problems relating to customary and Islamic laws are encountered. If is the observation of the researcher that, in some areas the people still believe in the matrimonial offence as the source of breakdown of a marriage when there is adultery by one of the spouses that is enough ground for divorce.
Under Islamic marriages the schools of thought in Islamic faith contribute a lot when determining the custody of children. The sunni school, for example, holds that custody of children is always on the material side, whereas the shia give custody to the father, except in cases of an infant. Such approaches make the application of the welfare principle difficult.
The researcher examines the conflicts which arise in courts especially the applicability of the Civil Procedure Code 1966, the Law of Marriage Act, 1971, and the Matrimonial Proceedings Rules. It seems that, under the provisions of the Civil Procedure Code 1966 does allow the courts to consider divorce by consent of the spouses.
Where both husband and the wife have agreed that their marriage has broken down beyond repair, the court need not take additional evidence to prove the facts alleged. But under the Law of Marriage Act, 1971 the courts must inquire the history of the marriage and determine whether or not such a marriage can be mended.
These pieces of legislation therefore are confusing and that, they should be harmonized
Description
Available in print form, Eat Africana Collection, Dr. Wilbert Chagula Library,(THS EAF KRD T34M34 2001)
Keywords
Marriage law, Problems, Divorce, Divorce reform act, Tanzania
Citation
Majanjara, S. I. E. (201) The problems underlying the application of the doctrines of breakdown of marriage irreparably and the welfare principle in Tanzania. Masters dissertation, University of Dar es Salaam, Dar es Salaam.