In April, 1994, the Law Reform Commission of Tanzania (LRC) recommended, inter alia, that section 160 of the Law of Marriage Act (LMA), be repealed because it constitutes “an unnecessary encroachment [on] the sanctity of marriage and [is] contrary to the spirit of the Law of Marriage Act”. Subsection (1) of the offending section enacts a statutory presumption of marriage in favour of reputed de facto unions that have existed for a minimum of two years. Subsection (2) states that once the presumption is rebutted, the woman cohabitant and the children born of that union become legally entitled to apply to the court for economic support from the male partner. In these proceedings the court has similar jurisdiction as a divorce court, including the making of orders for the division of assets jointly acquired by the couple and the determination of who is to have custody of the children. In 1971 when section 160 was enacted, it was widely recognized that de facto unions had become a social fact which the law could not ignore. Hence, the decision to extend to these unions the same legal consequences that follow a formal dissolution of a legal marriage. However, in so doing the legislature had indirectly raised and yet left open a number of important questions that have continued to engage the minds of judges.
* Senior Lecturer, Faculty of Law, University of Kong Kong. An earlier version of this paper was first presented at the 9th World Conference of the International Society of Family Law held at Durban, South Africa, on 28-31 July, 1997. I wish to express my sincere thanks to Welshman Ncube, Gordon Woodman, Sufian Bukurura, Chuma Himonga, Ulrike Wanitzek and Fareda Banda all of whom read through an earlier draft of this paper and made helpful and encouraging suggestions. Ulrike Wanitzek also allowed me to use sources from our common research in Tanzania. Christabella Kaisi deserves special mention for allowing me to use her unpublished LLM dissertation and Mwemezi Mukoyogo, her LLM supervisor, for making this dissertation available to me.