LEGAL RIGHTS AND PROCEDURES TO PETITION FOR DIVORCE FOR FOREIGN NATIONALS DOMICILED IN TANZANIA.
Divorce is a dissolution of a marriage by the Court on the ground of its irreparable breakdown . Proceedings shall commence with the filing of a petition in the Court of law after obtaining a Certificate from the Marriage Conciliation Board.
A spouse in a Marriage on the following grounds may file a Divorce petition:
- Adultery committed by the Respondent;
- Sexual perversion on the part of the Respondent;
- Cruelty, whether mental or physical, inflicted by the Respondent on the Petitioner or the children, if any in the marriage;
- Willful neglect on the part of the Respondent; and
- Desertion of the Petitioner by the Respondent.
In order for a Court of Law to Grant a Divorce Decree the Court shall have regard on the above-mentioned factors amongst many other factors that may arise.
Dictionary of Law 6th Ed, L.B Curzon, pg 140..
A Foreign National domiciled in Tanzania may petition for divorce, the Law of Marriage Act Cap 29 allows and provides for foreigners to petition for divorce in the Courts of Law of Tanzania under Section 77(3)(a). However, the Law goes further under Section 77(3)(b) and gives an exemption to 77(3)(a) that a person petitioning for divorce must have been a resident in Tanzania for at least one (1) year immediately preceding the presentation of the petition.
PROCEDURE FOR PETITIONING FOR DIVORCE
Section 101 of the Law of Marriage Act, Cap. 29 provides the procedure for petition for divorce, whereby, it prohibits any person to petition for divorce unless he or she has first referred the matrimonial dispute or matter to a Board (Marriage Conciliation Board) and the Board has certified that it has failed to reconcile the parties.
However, the law provides a waiver under Section 101(a) that where a petitioner alleges that he or she has been deserted by, and does not know the whereabouts of, his or her spouse, the application of the provision under Section 101 above shall not apply.
To meet the abovementioned legal requirements, the petitioner is required to first secure an introduction letter from the Local Government Authority at the area he or she resides and submit the introduction letter to the Ward Offices. Upon submission of the Introduction Letter to the Ward Offices for setting a date for the Marriage Conciliation Board to hear the matrimonial matter, the petitioner will also be required to submit the following documents:
- Certified copies of the parties’ Residence Permits that is the Petitioner’s Residence permit and Spouse’s Residence Permit;
- Certified copies of the parties’ valid Passports; and
- Certified copies of the parties Marriage Certificate.
Where the Petitioner has proof of being deserted by, and does not know the whereabouts of his spouse, he or she can petition to the court for divorce without having to go through the Marriage Conciliation Board.
Otherwise, it is mandatory to refer the matter to the Marriage Conciliation Boards.
Furthermore, where the Petitioner intends to use Desertion as one of the grounds to petition for divorce he/she will have to have vivid proof the desertion of the petitioner by the Respondent for a period of not less than three (3) years, and the court has to be satisfied that the desertion is willful as provided under Section 107(2)(e) of the Law of Marriage Act, Cap. 29.
It is also important to note that Section 103 (2)(a) of the Law Of Marriage Act Cap.29, further requires the matter to be taken to the Board having Jurisdiction to handle the matter, whereas in this case the Board or any of the Board established for the ward within which the petitioner or intended petitioner resides, or, where the petitioner or intended petitioner is not a resident in Tanzania, the Board established for the Ward within which the spouse or the intended spouse resides.
It is worth noting however that, the Law under Section 104(8) of the same Act states that “when the matter is referred to the Board no Advocate/Attorney shall appear or act for any party in any proceeding before the Board and not any party shall be represented by any person other than a member of his or her family, without first obtaining leave of the Board”.
Nevertheless, Section 105(2) of the Law of Marriage Act, Cap. 29 gives room where a petition for a decree of divorce includes an allegation of adultery on the part of the respondent, the petitioner, may and if so directed by the court, shall make the person with whom the adultery is alleged to have been committed a co-respondent.
In view of the foregoing, having given the position of the law on the legal rights and procedures under which Foreigners domiciled in Tanzania may Petition for Divorce, a Petition shall have to be supported by relevant evidence and proof in all stages of the proceedings.
FURTHER INFORMATION:
This editorial is intended to give you a general over view of the Law. If you would like further information on any issue raised in this column, please contact.Haika-Belinda Macha
Partner
E: hb.macha@vemmaattorneys.co.tz
M: +255 688 305 999