SEPARATE PROPERTY SYSTEM
Property ownership in the Law of Marriage Act, 1971 is based upon the
concept of Aseparate ownership of property@ between spouses. Section
58 provides:
ASubject to the provisions of section 59 and to any agreement
to the contrary that the parties may make, a marriage shall not
operate to change the ownership of any property to which
either the husband or the wife may be entitled or to prevent
either the husband or the wife from acquiring, holding and
disposing of any property.@
1.3 Section 59 of the LMA, 71 provides for special provisions relating to
matrimonial home. It prohibits a spouse having title to the matrimonial
home to alienate the same, while the marriage subsist without the
consent of the other. It also guarantees the interests of the non-owning
spouse of the matrimonial home.
1.4 Section 108(b) provides that, any agreement as to division of
matrimonial assets (including matrimonial home) under section 58
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must be fair to both parties.
1.5 Separate ownership of property between spouses was first introduced
into our legal system during the unification process of the law in 1969
when the Government made its proposals in Government Paper No. 1
of 196. Paragraph 19 provides that:
AMoreover, the proposed law should provide expressly that
either spouse may own his or her own separate property which
he or she owned before marriage or acquired after marriage.@
1.6 This concept, popularly known as Aseparate property system@
presupposes that whatever property, husband or wife had acquired
before and after marriage remain his or her own property absolutely.
As far as ownership of such property is concerned marriage changes
nothing.
1.7 On the other hand section 60 of LMA, 71 provides that: Awhere during
the subsistence of marriage, any property is acquired:
(a) in the name of the husband or of the wife, there shall
be a rebuttable presumption that the property belongs
absolutely to that person, to the exclusion of his or her
spouse;
(b) in the names of the husband and wife jointly, there
shall be a rebuttable presumption that their beneficial
interests therein are equal.@
1.8 This provision (S. 60 LMA, 71) presupposes that, during subsistence of
the marriage the spouses would each hold some sort of a Areceipt@ for
his or her property. In real life this is not the case, especially where the
wife is full time housewife with no other independent source of income.
1.9 In England the Aseparate property system@ was introduced by the
Married Woman=s Property Act of 1882. The system was introduced to
remedy the evils of the then existing Common law system of Aunity of
property@, whereby upon marriage, a husband acquired by law all his
wife=s personal property as well as her income. Also, then husband
enjoyed, at least for the duration of the marriage, certain rights in and
control over her real property.
1.10 This concept was deliberately introduced into our legal system to cure
or rectify similar mischief which, before the Law of Marriage Act, 1971
was entrenched in local customs and traditions.
1.11 After introduction of this system of property ownership in England
many other countries such as Jamaica, Australia, New Zealand, Canada
and many other Commonwealth countries have tried this system long
before Tanzania did. Most of these countries have found this system
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faulty in practice and have set themselves out to change it completely
or continue with a modified system.
1.12 The following are some of the criticisms levelled against the system:
1.12.1 The law on separate property does not provide
adequate and fair solution to the property disputes
between spouses because it is primarily concerned
with the ownership of individual items of property. In
many cases it is difficult to prove contribution to a
specific property or improvements to the property
without record. In the environment of subsistence
economy in a rural setting things are worse.
1.12.2 The law does not recognise housewifely efforts, care of
the home and family as economic activities enough to
be counted as contributing to acquisition of family
assets within the ambit of the law.
1.13 Our position in this problem, especially when it comes to division of
family assets is no better than those of other common law jurisdictions