Tanzania Media Women Association (TAMWA) Zanzibar

Analysis of Section 5

of the Kadhi’s Court Act (No. 9, 2017)

on prescriptions related to

actual contribution to matrimonial assets

July 2018

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Marriage creates a status in which the state is vitally interested

and under which certain rights and duties incidental to the

relationship come into being irrespective of the wishes of the

parties i.e. essential incidents of a marriage- Graham v. Graham

The Shariah is all justice, kindness common good and wisdom.

Any rule that departs from justice to injustice…or departs from

common good to harm…is not part of the Shariah even if it is

arrived at by literal translation.- Ibn Qayyim

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Abbreviations

App Appeal

CA Court of Appeal

Cinn L Rev Cincinnati Law Review

Civ. Civil

e.g. For example

etc. Etcetera

ISANA Islamic Society of North America

J. Judge; Justice

LMA Law of Marriage Act

MCA Matrimonial Causes Act

No. Number

p. Page

RGZ Revolutionary Government of Zanzibar

TDHS Tanzania Demographic and Health Survey

TLRC Tanzania Law Reform Commission

UMDA Uniform Marriage and Divorce Act

URT United Republic of Tanzania

v. versus

ZLR Zimbabwe Law Review

Tshs. Tanzania shillings

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SACCOS Savings and Credit Cooperative Societies

CEDAW Convention on the Elimination of all Forms of Discrimination

against Women

SC Supreme Court

Glossary*

Adat according to Encyclopedia Britannica it customary law of the indigenous peoples of Malaysia and Indonesia. It was the unwritten, traditional code governing all aspects of personal conduct from birth to death; oxford university studies online defines it as customs, accepted practice. The functional equivalent of urf.

Dharaa harm

Fiqh refers to the scholarly efforts of jurists (fuqaha) to elaborate the details of shariah through investigation and debate. Muslims understand shariah to be an unchanging revelation, while fiqh, as a human endeavor, is open to debate, reinterpretation, and change. Fiqh is distinguished from usul al-fiqh, the methods of legal interpretation and analysis. Fiqh is the product of application of usul al-fiqh, the total product of human efforts at understanding the divine will. fiqh relied heavily on adat/urf to formulate cultural rules (e.g., dress, mannerisms etc)

Islamic Law

Musawah

Nafaqah the financial obligation of a husband toward his wife during marriage and for a time after he divorces her. A husband is expected to pay for housing, food, and his wife's clothes according to her social class or their agreement at the time the marriage was contracted.

Shariah refers to God's divine law as contained in the Quran and the sayings and doings of Muhammad (hadith). Literally translates to “the path leading to the watering place”), the law constitutes a divinely ordained path of conduct that

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guides Muslims toward a practical expression of religious conviction in this world and the goal of divine favour in the world to come. Shariah was systematized during the 2nd and 3rd centuries of the Muslim era.

Taa obedient or obedience. Wives are expected to be obedient to their husband to qualify for nafaqah

Talak/q repudiation; some translate it as divorce.

Tawid

Urf In the central Islamic countries, it is the common name for unwritten customary law, in contrast to written Islamic law codes or other legal canons According to the Malikis and some Hanafis such as Ibn Abidin, urf is considered to be a source of law

Wajib obligatory; compulsory

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TABLE OF CONTENTS Abbreviations ................................................................................................................................................ ii

Introduction .................................................................................................................................................. 1

1.0 Context Analysis ...................................................................................................................................... 3

1.1 The Nature of Property ....................................................................................................................... 4

1.2 Problematizing evidence of contribution ........................................................................................... 4

1.3 Property Systems and Gendered Implications ................................................................................... 5

2.0 Comparative Analysis .............................................................................................................................. 7

2.1 The Law of Marriage Act 1971, Tanganyika. ....................................................................................... 7

2.1.1 The marriage regime introduced by LMA. ................................................................................... 7

2.1.2 Matrimonial property under the LMA. ........................................................................................ 7

2.1.3 What is contribution to matrimonial property? .......................................................................... 8

2.2 Matrimonial Property Act, Kenya. ...................................................................................................... 9

2.3 The Uniform Marriage and Divorce Act, United States. ................................................................... 10

2.3.1 What is contribution? ................................................................................................................ 11

2.4 The Matrimonial Causes Act, Zimbabwe ........................................................................................... 12

2.4.1 What amounts to contribution? ................................................................................................ 13

3.0 Matrimonial Property in Muslim Jurisdictions ...................................................................................... 15

3.1 Matrimonial property under Qur’anic edicts. ................................................................................... 15

3.2 The Practice in Muslim Majority Countries....................................................................................... 17

3.2.1 Administration of Islamic/Muslim Law Enactments, Malysia. ................................................... 18

3.2.2 Code of Personal Status 1956, Tunisia. ...................................................................................... 18

3.2.3 Personal Status (Amendment) Law (No. 100 of 1985), Egypt.................................................... 19

3.2.4 Code of Personal Status 1957-1958 (Moudawana), Morocco. .................................................. 19

4.0 Proposal on Identifying & Assessing Contribution to Family Assets. .................................................... 19

4.1 Questions raised at juncture of this discussion ................................................................................ 19

4.2 Towards a formula for allotting matrimonial property .................................................................... 20

4.2.1 Clarity over key definitions and standards ................................................................................ 21

4.2.2 Identify and value each party’s contribution ............................................................................. 21

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4.2.3 Work towards apportioning "equitable" shares ........................................................................ 22

4.2.4 Determine a framework for guiding the allocation of assets .................................................... 22

4.2.5 Award a remedy that is effective ............................................................................................... 24

5.0 References ............................................................................................................................................ 30

1

Introduction

On 13 September 2017 a coalition of civil society organisations in Zanzibar issued a joint

statement on the Kadhi’s Court Bill. The Bill was fervently opposed on several grounds by

various quarters. A number of shortcomings were identified including constitutional

violations, administrative violations and procedural drawbacks. Despite the uproar, on 1

November 2017 the President of Zanzibar, Dr. Ali Mohammed Shein assented to the Kadhi’s

Court Act 20171.

Section 5(1)(a) of Act No.9/2017 empowers the Kadhi’s Court to have jurisdiction over

matters related to marriages and divorces2. Specifically, Section 5(1) (f) alludes to the

division of matrimonial assets where there is proof of actual contribution. Nowhere in the

Act is the term matrimonial asset or property defined. Examining the economy of marriage

and divorce in changing socio-economic contexts Stockreiter asserts that from 1900

Zanzibar Kadhis defined maintenance claims predominantly in monetary value a trend that

may continue absent alternative frameworks of reference3.

Social justice and gender activists expressed concern about the lack of definition in the law

in light of the constitutional and legal protections that were stripped under the 2017

legislation. Section 6 of the Act makes Islamic law as well as Islamic rules of evidence

exclusively applicable in Kadhis Court, a major departure from practice since 1964 where

the law of evidence and civil procedure were applied ensuring that male and female;

Muslim and non-Muslim persons; have an equal status before the court.

Jurisdictions from a common law background overwhelmingly fail to recognize women’s

equal contribution to matrimonial property4. Common law property including gifts and

inherited property are considered to be separate property5. In examining court practice in

making property allocation upon divorce, Baiden argues that because courts are allowed

much discretion in such cases6 the tendency is to divide property according to who has

financially contributed to its acquisition. As a result many women do not pursue cases in

courts for fear of not being able to prove substantial contribution.

Baiden’s assessment tallies with the situation in Kadhi’s courts in Zanzibar where Stiles

rarely recorded disputes over ownership of property in marital contexts in rural Zanzibar

1. Act No.9/2017 which repealed Act No.3 of 1985. 2. This is to be read with S.17 of Act No.9/2017. 3. See p.116 4. Regina Lule Mutyaba, “A Comparative Study of the Status of Women Under the Law of Divorce and of their Economic Status in Uganda, Britain and Bangladesh”, in Voices of African Women p. 218. 5. Normally proof of financial contribution or need is required before a party can raise a claim to such property. 6 Bernice Baiden, “Discrimination in the Traditional Marriage and Divorce System in Ghana: Looking at the Problem from a Human Rights Perspective”, in Voices of African Women, p.213-4.

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due to wide perceptions of what is joint property in a marriage. Women may therefore be

reluctant to claim what traditionally is not understood to be family or joint property, an

outlook that is also informed by the dominant teachings on marriage and rights in

marriage.

Historically, Zanzibar has not had a uniform law to govern the relationship between

married persons. Zanzibar, at different times, has enacted laws to regulate the

solemnization of marriages and divorces7. Chief among them are Cap 91 and 92 of the laws

of Zanzibar which provide for the Marriage and Divorce (Muslim) Registration and the

Marriage (Solemnization and Registration) Decree respectively8.

The concern of both legislations is procedural, to regulate the marriage act and not the

rights and obligations that ensue from the same. While section 9 and 10 of Cap 91 and

section 21 of Cap.92 talk about the entry of certain particulars of the parties to the

marriage in a registry none of the particulars relates to the marriage regime the couple is

entering to; or a declaration of investments the couple brought individually to the

relationship. The entries are overly concerned with the rituals of marriage as perceived by

law and custom and less so with the terms and content of the relationship as envisaged by

the parties entering into the matrimonial union9.

Prior to 1963, Islamic law was acknowledged as “fundamental law,” and used for all family

law matters. The law in Kadhi’s Court is not codified and there is no family code in

Zanzibar. Kadhis are not bound by doctrine of precedent and can interpret laws and

pronounce judgements as they see appropriate. However Kadhis are required to write

decisions in a standard format and always cite legal sources; decisions may also be

reviewed by other Kadhis. Recent ethnographic research in a rural court shows how Kadhis

navigate between Islamic law, state law, and local norms in marital disputes10.

TAMWA Zanzibar and like-minded organisations, who have long campaigned for an

egalitarian marriage regime welcome the opportunity to influence constructive measures

in the law directing the division of matrimonial assets towards an equitable distribution

and amicable dissolution. The objective is to ensure that existing provision and rules are in

harmony with policy objectives of gender equality as well as securing and uplifting the

wellbeing of families.

7 For example, the Royals Marriages Decree passed on 30 December 1940. 8 Cap 91 was passed on1 January 1936 while Cap 92 was passed on 2 August 1915 with the 19936 legislation intended to provide for Muslim marriages only while the 1915 provided for non-Muslim marriages and divorces. 9 This has not changed. 10. Erin Stiles (2009)

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1.0 Context Analysis

The population of Zanzibar is estimated at 1,303,569 million. Women are 672,892 and men

are 630,677. The Zanzibar House Hold Budget Survey of 2014/15 reveals that the average

family size in Zanzibar consists of 5.6 persons. Moreover the proportion of the female-

headed household accounts for 22.8 percent of all households with Mjini District recording

the highest proportion of female headed households at 31.1percent11.

The average marriage life span among the rural population is between 10-15 years while in

urban area it is less than 10 years. Various studies have indicated an increasing rate of

unilateral divorce and family abandonment in Zanzibar. Between 2012 until the first three

months of 2016 a total of 2,841 divorce cases before Kadhis Court at Mwanakwerekwe

while maintenance cases during the same period were 26812. A total of 546 cases were

reported to the Kadhi’s Court from January to August 201713 while from Jan to March 2018,

286 cases were reported. Most divorces are not registered. There is no legal effect in

registering divorces except to legalize subsequent marriages.

Most divorce cases are filed by women14. Over 90% of cases files involved matrimonial

disputes ranging from divorce suits and claims for maintenance. The Ministry responsible

for Social Welfare as well as the Kadhis Court are inundated with maintenance claims from

struggling mothers. Households headed by women are amongst the poorest.

Purportedly one of the cures the new Act introduces is the pronouncement of enforceable

awards following divorce or maintenance claims by the Kadhis. The necessary tools to

guide the court, e.g. rules of procedure under section 7, are yet to be adopted. Majamba

avers that the institutional and administrative structure of the Kadhis Court system in

Zanzibar is in essence prejudiced against females as it is overwhelmingly male15. Moreover,

Kadhis court apply a legal framework that is in essence bias, out of synch with national

policy objectives and unsuitable for contemporary notions of family and family

relationships. This examination is hence timely.

This paper is organized in four distinct parts. The first part is an examination of the

pertaining context in Zanzibar. The second part offers a comparative analysis of how

different jurisdictions have grappled with the issue of defining matrimonial property and

11 Zanzibar 2012 Population and Housing Census. 12 Muhammed Khamis (2016) “Talaka zilitolewa kwa kasi Z’bar” 06/01/2017 13 See, for example, Faraja Masinde, “Kasi za Talaka Mahakamani Yatisha”, Mtanzania Sunday 1 February 2017 14 Majamba p.11 and Stiles 2009 15 Majamba p.10. This was also a key criticism by gender activists in Zanzibar in view of the reluctance to appoint women Kadhis or arbitrators.

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distributing the same. The third part of the paper looks at how jurisdictions purporting to

apply Islamic Law have approached the issue of matrimonial assets. The last part of the

paper proposes key elements that should inform a framework to identify, assess and allot

matrimonial property in the event a marriage is dissolved.

1.1 The Nature of Property

Couples usually purchase property to secure their future and that of their offspring16.

Property is the most visible outputs of joint efforts and increasingly a marker of family

prosperity. Among family property commonly tracked by the TDHS include household

appliances, vehicles, mobile devices and land. According to the 2010 TDHS 29% of

households in Zanzibar own a television while 71.7% own a radio. Half of households in

Zanzibar own a bicycle, 69.8 own a mobile phone. Just under half of households in Zanzibar

own agricultural land. The National Plan of Action to end Violence against Women and

Children 2016-2022 indicates that 9% of women own land; 11% own a house; and 16%

own a bank account. These figures suggest that there is a basis for inquiry so as to establish

and compute the contributions made by each party towards the acquisition, preservation

and improvement of family assets.

1.2 Problematizing evidence of contribution

Section 5(1) (f) requires proof of actual contribution to entitle a spouse to make a claim of a

share of matrimonial assets, if present. As already noted this is problematic in a culture

where record keeping is low and women in a matrimonial relationship often take the back

seat with regards to public or family matters. This has led to the belief that women make

little contribution, financial or otherwise in family wealth and wellbeing, a notion that has

been perpetuated institutionally.

However, official data indicates that a high number of women work even if it is not visible

or tangible. The 2010 TDHS data, for instance, indicates that in the agricultural sector, the

biggest employer of women, the majority of women working in this sector are not paid (72

percent). Similarly, employment arrangements may disadvantage women. For example, 42

percent of women employed in the agricultural sector are employed by a family member,

while 57 percent are self-employed and 82 percent work seasonally. Among women

employed in non-agricultural work, 87 percent earn only cash income, and 7 percent

receive payment in cash and in kind. 63 percent of women in this sector are self-employed,

and 74 percent work all year.

The Survey also established that nine in ten currently married women age 15-49 were

employed in the 12 months preceding the survey. Among employed, currently married

women, only 30 percent are paid in cash for their work compared with 56 percent of men.

Moreover, 53 percent of women are not paid for their work compared with 28 percent of

16 See John Chigiti, How courts distribute matrimonial property?

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men. And although 73% of married women reportedly earn less than their husbands17 an

important trend to note is that an increasing number of women (14.8 percent) in Zanzibar

earn more than their husbands. Over 80% of women who earn have a say over how their

earnings are spent.

Perhaps the more relevant issue in examining the question of contribution is earning

power. Female employees constitute only 36 percent of the total employees in the formal

sector. Of these only about 9 percent are in supervisory and technical posts. The majority of

women are found in the informal sector engaged in petty business, small farming, pottery

and handicrafts. While low paying jobs and engagement in the informal economy may

diminish the value of contributions women make, it does not negate the fact that they

contribute actively and consistently towards the creation or acquisition of family assets.

It is important to keep such facts in perspective lest outdated assumptions about gender

roles continue to be used to the detriment of non-earning or low earning spouses.

Certainly, the phenomena of women’s unpaid work has been highlighted and proposals

have been made to review economic indices to include non-traditional economies becomes

pertinent18.

1.1. Property Systems and Gendered Implications19

The review established, in most jurisdictions, two main types of property regimes

governing the matrimonial relationship- common law and community property systems.

Although they are similar in terms of classification they are distinguishable.

There is diversity in the content and application of the matrimonial property systems.

France, for example, speak of a community fund which encompasses all property acquired

through the gainful activity of the spouses; Germany operates a differed community

property system which forbids spouses from disposing of household goods or disposing of

their property without the consent of the other spouse. While the common law system

assumes that personal property belongs to husband the reading of the Equal Rights

amendment Act forces courts in the UK to adopt a presumption of joint ownership.

Traditionally, common law courts granted the needy spouse alimony for a limited period so

that the spouse could rehabilitate themselves into their new reality. Alimony is the award

of future payments that are normally paid from the future earnings of the paying spouse in

17 National Plan of Action to end Violence against Women and Children 2016-2022 p.3

18 See generally See https://www.oecd.org/dev/development-gender/Unpaid_care_work.pdf or

https://link.springer.com/chapter/10.1007/0-387-36218-5_17 and www.unwomen.org/en/news/in-focus/csw61/redistribute-unpaid-work. 19 For perspective on marriage regimes and property rights see Andreea-Lorena Codreanu, Applicable Law Principles for Matrimonial Property Regimes.

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recognition of inability to self-support or earn due to a long marriage or full time

responsibility for young children. Alimony payments can be permanent and varied if

circumstances of the parties changes.

Alimony provisions have been criticised for failing to consider the socio-economic realities,

in view of sometimes negligible awards. Alimony perpetuates the theory that women only

have a "privilege" not a right to what belongs to their husbands, and should be generously

afforded with a share of it to assist them. It assumes that a woman needs to be looked after.

The overall reality has prompted for a reevaluation of the principle of fairness and sexual

equality in the allocation of jointly acquired property, a discussion that this paper hopes to

contribute to in the case of Zanzibar.

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2.0 Comparative Analysis

2.1 The Law of Marriage Act 1971, Tanganyika.

The Law of Marriage Act,20 (LMA) was enacted to unify all laws- customary, Islamic and

statute- governing matrimonial relations on Mainland Tanzania21. The LMA provides key

prerequisites when entering a valid marriage and the principles the court is to follow upon

its dissolution. The long title to the legislation indicates that its purpose is to "[r]egulate the

law relating to marriage, personal and property rights between husband and wife,

separation, divorce and other matrimonial relief and other matter connected therewith and

incidental to".

There has been various attempts to expound the law relating to marriage and its ensuing

implications. Rwezaura in his 1981 publication devotes a whole chapter on the property

rights of couples22. A number of publications by women rights organisations address

divorce23.

2.1.1 The marriage regime introduced by LMA.

Among the notable features in the marriage regime introduced by the LMA is the separate

property system. Having been incorporated in the Married Women's Property Act of 1882

of England24, the system is primarily concerned with individual items of property. It aims at

remedying the existing "unity of property" theory25 which denied a married woman her

personal and real property, and income, control of it being vested with her husband26. The

LMA also retains a fault based divorce system27.

2.1.2 Matrimonial property under the LMA28

Part IV of the LMA provides for property, rights, liabilities and status of married couples29.

Women's rights to acquire, hold and dispose of property, whether movable or immovable is

20 Act No. 5 of 1971. 21 See, para 19 of Government Paper No.7 of 1969. An additional discussion on the context of the LMA see Rwezaura 1981 p.73-74. 22 Chapter 3 23 WLAC, TAWLA 24 Section 58 of the LMA. 25 Compare with the community property system where property is considered separate property only if was acquired before the marriage, all property acquired during the marriage being jointly owned. 26 Blackstone, Commentaries on the Law of England, Chapter IV, 1765. 27 See discussion in Chapter 4 Rwezaura (1981) 28 See generally also Salma Maulidi, “Rethinking Property: Women and Matrimonial Property Rights in Tanzania”, in Voices of African Women. 29 Section 56-68 of the LMA.

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assured under the Act. The LMA recognises the proprietary interests of all spouses in

matrimonial property. Women in polygamous relationship enjoy equal rights and have

equal liabilities and status before the law, as those in monogamous unions, and with each

other30.

Section 60(b) of the LMA references property acquired, "[I]n the names of the husband and

wife jointly" and, "[a]ssets acquired during the marriage by their joint effort"31. Under the

Act, joint property presumes to cover movables or assets that are verifiable by purchase

receipts or title32.

The standard set by Section 114 as elaborated by the CA in the case of Bi Hawa Sefu is that

the assets envisaged must firstly be matrimonial assets and secondly, they must have been

acquired by the parties during the marriage by their joint efforts. The court equated the

definition of "matrimonial assets" as what is otherwise described as “family assets”.

Under paragraph 1064 of Lord Hailsham's Halsbury's Laws of England it,

refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole. The family assets can be divided into two parts (1) those which are of a capital nature, such as the matrimonial home and the furniture in it (2) those which are of a revenue - producing nature such as the earning power of husband and wife.

In the case of Scholastica Benedict v. Martin Benedict33, a widow argued that the home the

stepson wanted to inherit, constituted a matrimonial home. She was thus entitled to remain

therein regardless of her husband's death.

2.1.3 What is contribution to matrimonial property?

Mapigano, J. captures the two main positions pronounced by the courts with regards to

what is contribution to matrimonial property. These positions are an attempt to interpret

the legislative intent of Section 114 of the Law of Marriage Act. The justice referred to a

narrow and broad perspective on joint efforts: those who maintain that under Section 114

the term joint effort is limited to direct contribution by a spouse by way of money, property

and work, to the acquisition of the asset in question and that housekeeping and raising the

children count for nothing; and those who take the view that household work must be

30 Section 57 of the LMA. 31 Ibid, Section 114(1). 32 Section 60 reads: "Where during the subsistence of a 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. 33 Mwanza Court of Appeal, Civ. App. No. 26 of 1988.

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regarded as part of the joint effort or contribution towards the acquisition of any asset by

the husband and the wife's.

Bi. Zawadi Abdallah v. Ibrahim Iddi34 ruled that domestic duties of a spouse do not

constitute "contribution" within the meaning of section 114 of the Act, and thus do not

entitle a spouse to a share of the matrimonial assets. The court refused to equate

housework and childrearing, with the husband's paid work when evaluating contribution

to matrimonial property. For a long time the dominant position interpreted housework to

be an extension of a wife’s conjugal obligation35.

Bi. Hawa Mohamed v. Ally Sefu36 reversed the dominant position that housework' did not

amount to a "contribution" within the meaning of Section 114 of the Law of Marriage Act,

1971. The Court of Appeal held that a spouse's domestic services, rendered during the

subsistence of the marriage, amount to an "effort" and "contribution" within the provisions

of Section 114 of the Law of Marriage Act which entitles one to the distribution of the

matrimonial property. The Court observed that the words "their joint efforts" and "work

towards the acquiring of the assets" have to be construed as embracing the domestic

"efforts" or "work" of husband and wife and in performing their domestic duties are to be

treated as working not only for their current needs but also for their future needs.

2.2 Matrimonial Property Act, Kenya37.

The Kenya’s Matrimonial Property Act passed in 2013 defines matrimonial property as the

matrimonial home(s), household goods, any other immovable and movable property jointly

owned and acquired during the subsistence of the marriage. Ownership of matrimonial

property vests in the spouses according to the contribution towards its acquisition. During

divorce or dissolution of marriage, such property will be divided between the spouses.

The Act defines contribution to mean “monetary and non-monetary contribution and

includes domestic work and management of the matrimonial home, child care,

companionship, management of family business or property and farm work. where the

properties are registered in the name of one spouse the following principle is applicable in

division of matrimonial property: “Where the disputed property is not registered in the

joint names of the spouses but is registered in the name of one spouse, the beneficial share

of each spouse would ultimately depend on their proven respective proportions of financial

contribution either direct or indirect towards acquisition of the property. However, in

34 Dar-es-Salaam High Court, Civ. App. No. 10 of 1980, (1981) TLR 311. 35 See Lawrence Mtefu v. Germana Mtefu Civil Appeal No. 214 of 2000 36 Court of Appeal of Tanzania, Civil Appeal No. 9 of 1983 (Unreported). 37 For elaboration on this section see John Chigiti, How courts distribute matrimonial property? May 27, 2015

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cases where each spouse has made a substantial but unascertainable contribution, it may

be equitable to apply the maxim 'equality is equity'".

2.3 The Uniform Marriage and Divorce Act, United States.

The American discourse on matrimonial property is captured in the Uniform Marriage and

Divorce Act (UMDA) a law which like the LMA intended to bring new meaning to a marital

relationship far removed from the traditional concept38. The matrimonial relationship

assumed the status of an economic venture with partnership features, and in which each

party was to have an interest39. Property was the most tangible asset acquired from the

joint venture.

In the United States, matrimonial property falls under two categories: community property

and common law property. The disposition of property following a dissolution of marriage

is elaborated under Section 307 of the UMDA. Two alternatives are provided by the section

for each system of matrimonial property. Alternative A is designed for common law states

and directs the court to equitably and finally apportion between the parties the property

and assets belonging to either or both, however and whenever acquired, and whether the

title thereto is in the name of the husband, wife, or both.

The effect of the section is to make all property of the couple joint assets available for

distribution. Among guidelines to guide in the distribution is the duration of the marriage

or prior marriage, ante-nuptial agreements, the age, health, income, occupation,

employability of the parties and their contribution40. Fault, though taken into account by

some common law jurisdictions in deciding whether to grant a divorce, is not to be

considered when making the actual award. Under the common law regime spouses have no

statutory right to claim a share of each other’s property upon divorce but courts can

apportion all of the property of the spouse even if held separately or if acquired before

marriage if contribution is interpreted broadly to mean enhancing the value of the property

not just acquiring it.

Alternative B provides for the community of property system. It directs the court to assign

each spouse's separate property to the individual spouse and divide community property

without regard to marital misconduct, in just proportions after considering factors such as

the contribution of each spouse, the value of the property set apart to each spouse, the

duration of the marriage, each spouse's economic circumstances after the division and, in

some states, awarding the family home to the custodial parent.

38 Herma Hill Kay, ”Equality and Difference: A perspective on the no-fault divorce and its aftermath”, 56 Cinn L Rev. 1, 44-45 (1967) cited in Wendy Williams et al, Cases and Materials on Gender Discrimination, at p.77. 39 Stephen D. Sugarman, Dividing Financial Interest on Divorce, in Divorce Reform at the Crossroads, 130, 139-141. 40 Comment to Section 307 of the UMDA.

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Five principles have been devised in the allocation of matrimonial property upon

dissolution, including:

The fault principle that punishes the responsible party for the breakup

The need principle requires the financially able spouse to support the spouse in need until such need ends, either through death, remarriage or other event as long as it does not punish a spouse who might not be responsible for the situation of the needy spouse.41

The status principle

Rehabilitation principle

The contribution principle recognises that marriage is an economic partnership with interests. The principle considered the fairest way to determine allocation of matrimonial property upon dissolution and takes into account both financial contributions as well as services e.g. housework, child rearing and nurturing as part of a concerted joint effort in an economic relationship aimed at benefitting the family unit. Both parties thus have an interest in these benefits and each party contributes towards them in different, mutual ways42.

2.3.1 What is contribution?

Case law has played a critical part in illuminating the scope of matrimonial property in the

US. Painter v. Painter43 for example held that marital property is not identical to

community property. An important step, hence, is to first determine what assets are

available for division. These can include houses, businesses, pensions, furnishings, vehicles,

savings and real estate.

Courts have expanded the meaning of property so as to encompass other factors initially

not contemplated as contribution to matrimonial property. O’neil v. O’neil44 ascertained the

legislative intent of the term ‘contribution’ which was ambiguous and held that a

determination of each spouses contribution within the meaning of General Statutes

includes monetary as well as non-monetary contributions such as investments of human

capital in home making has worth and should be evaluated during property settlement

upon dissolution.

Postema v. Postema introduced the concept of ‘concerted family effort’ involving mutual

sacrifice and effort by both spouses. Finding that marriage is an economic partnership to

which spouses contribute in diverse ways the court ruled that a law degree was a marital

asset. The court observed that concerted family efforts is reflected in many ways tangible

41Areen, 714. 42Ibid. 43 cite 44 Connecticut Appellate Court 1988

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and intangible such as providing the other with the necessary time and energy to pursue an

end product e.g. study and attend classes for a degree.

2.4 The Matrimonial Causes Act45, Zimbabwe

Before the passage of the Matrimonial Causes Act, the law in Zimbabwe did not recognize

any claims to property nor control of the same by a wife save that property which was

customarily recognized as belonging to the woman or her mother46. Thus in most cases a

woman left her marriage with nothing. The general law system47, provided for two

proprietary systems of marital property: The marriage in community of property and

profit and loss; and the separation of property system or marriage out of community of

property.

Community of property and profit and loss merged property into a joint estate in which

spouses hold equal shares regardless of their contributions. The husband was granted wide

and excessive marital powers and he could sell, donate unwisely or destroy the property

causing the wife hardship and with no recourse for obtaining damages for the property48.

The marriage out of community of property allowed the parties to retain their separate

estates with mutual and total legal independence upon marriage.

The assumption was that the separation of property system regime allowed a wife equality

and independence in managing her property but such perception has been debunked in

practice. It is improbable that during the subsistence of a marriage each spouse owns and

administers his/her separate estate with no interference or help from the other49. The

regime was also faulted for failing to recognize the substantial contribution of the majority

of women, who were not in wage employment, hence failing to treat women fairly or

equitably50.

The Matrimonial Causes Act was enacted in 1985 and unified laws in respect to the

distribution of property following divorce51. Section 7 of the Act overrides any Customary

Law on the distribution of the marital property upon divorce52. The court's powers of

distribution of matrimonial property extends to all general law marriages that are out of 45 Chapter 5:13 46 These are the motherhood beast property, which a married woman acquires as a mother of a married daughter; and hands property, which a woman acquires through her own personal labors such as by using her skills in handicrafts, as a midwife or herbalist. For the wage earner her income falls under this latter property. The problem, however, is proving it. 47 Roman-Dutch common law and Statute Law. 48 Such property wherever situated included that which is present or future, movable or immovable and debts. 49 Welshman Ncube (1987), “Underprivileged and inequality: the matrimonial property rights of women in Zimbabwe”, p.8 50Ibid, p.9. 51 Albeit without the express repeal of other laws affecting the holding and reallocation of matrimonial property at divorce. 52 This section is similar to Section 114 of the LMA but is more extensive and elaborative.

13

community of property greatly minimizing the potential and scope of internal conflict of

law.

The guidelines directed that the allocation of the matrimonial property should apply

equally to property and maintenance orders53. The proprietary rights of the spouses

remain undefined and unpredictable during the subsistence of the marriage operating only

when such relations end. The section gives courts wide powers to make appropriate

orders making the law uncertain and unpredictable: a lot depended on the material facts of

each case and the discretion and attitude of the judge.

The law is criticised for attracting extensive litigation and high costs on society and the

litigants. This is impractical in a country like Zimbabwe, where access to the courts is still

not a reality for most. Moreover, the 1985 Act has no bearing on succession which is still

governed by either general or Customary Law54. A woman is thus better off terminating her

marriage than waiting until her husband dies to acquire proprietary interests in the

matrimonial property, particularly in intestate succession.

A commendable feature of the Zimbabwe Act is the thorough elaboration of the factors to

consider in property allocation. The factors explicitly recognize the value and importance

of domestic work to the contribution and preservation of the matrimonial property. Ncube

advises the courts to assume that such contribution is equivalent though different, but

equally beneficial to the welfare of the family55.

2.4.1 What amounts to contribution?

A rigid property system operating before 1985 risked to undervalued contributions made

by a woman towards matrimonial property. In Charomo v. Katsidzira56 a wife who had

directly contributed money to extend the matrimonial home and supported the family

singly from her personal resources, was found not to have a claim to co-ownership to the

home since she did not contribute in the initial purchase of the house. Her only claim

entertained by the court was for the return of her contributions and reimbursement of her

increased contributions to the maintenance of the family.

53 Section 7 of the Matrimonial Causes Act reads; (1) subject to the provisions of this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, the court may make an order with regard to:

(a) the division, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other; (b) the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favor of one or other of the spouse or of the any child of the marriage.

54 A detailed discussion on succession is contained in Julie Stuart (1987) Playing the game: Women's inheritance of property in Zimbabwe. 55 Ncube, supra, p.19. 56 (1981) ZLR 418.

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In contrast a decision passed a year after the passage of the Marriage Causes Act shows a

departure in defining contribution. In Muchada v. Muchada57 a wife had taken care of the

couple's children and supported them from her income. She also conducted extensions to

the matrimonial home with some financial assistance from her absent husband. The court,

using Section 7 of the Matrimonial Causes Act, held that she was entitled to half the share of

the proceeds from the sale of the home. In reaching its decision the court considered the

inconvenience the building process was to her, her raising the children as sole custodian

and her industry which transformed the state of the property.

There are calls to reject the concept of marital power in favour of joint management and

administration58 encouraged through the "deferred community" system while at the same

time allowing each spouse to administer their respective estates during the marriage59.

Two kinds of deferred community property systems exist; the universal and partial. In the

universal system the spouse remains free to acquire, dispose of, or deal with his/her

property in any way, but at its dissolution, the respective estates are brought together and

divided equally between them. Partial deferred system extends to property acquired

during the marriage. Others propose a tacit universal partnership model which requires

the spouse to prove their level of contribution to the estate60.

57 HC-H-346-86 58 Ncube, supra, p. 26. 59 Ibid, p.27. 60 For example, Stuart p.95.

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3.0 Matrimonial Property in Muslim Jurisdictions

As will be appreciated below the utilization and application of Islamic law has been and

remains quite varied across Muslim contexts. Certain historical processes influenced the

development of Islamic law in different contexts. Egypt for example has a mix history and

influences: Egypt was the home of the Shafii School and under the Fatimids, while the

ruling classes were Ismaili. In the Sudan family and personal affairs is based on a

combination of Shari’ah ‘urf and traditions.

3.1 Matrimonial property under Qur’anic edicts.

The Quran makes references to divorce in various passages including-:

2:228 which reaffirms each of the spouse’s rights over the other; that women are to

be released with good treatment; and to be left with all gifts;

2:231 which directs that women are to be released according to acceptable terms;

not to be harmed;

2:232 which reminds that marriage is to be upon acceptable basis and consensus i.e.

agreed to by both;

2:236 directs that even if a marriage has not been consummated women are to be

compensated in acceptable manner upon divorce as a duty for all believers;

2:237 provides that if divorced is pronounced before consummation but mahr had

been agreed upon then the woman is entitled to half of the mahr;

2:240 and 241 of the Holy Quran, provides for maintenance of widows and divorced

women respectively, separate from other property they own individually or

acquired during the marriage. 2:241 describes the provision for divorced women as

a duty;

4:1 recognises that spouses have mutual rights 61;

4:20 and 4:21 stipulates that taking back anything given to a wife during divorce is a

manifest sin and an injustice;

4:127 and 128 urges people to make terms of settlements that are best and to

observe ensuing rights;

4:130 stresses abundance following divorce;

61 See Ibrahim Adam Mohammed, The Status of Women in Islam.

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33:49 urges for a gracious release upon divorce;

33:51 sets condition of being set aside (divorced) i.e. the woman should be content

satisfied, not grieve with what they are given;

65:1 and 2 outline the terms in which divorced women are to be released i.e. within

acceptable terms 62;

65:6 instruct that women are to be lodged within means of husband; are not to be

harmed or oppressed. Whatever women do in excess of their duty e.g. breast feed it

is to be appreciated and compensated; and

65:7 instructs each husband to spend what is within his means 63.

Despite these provisions a sizeable portion of Islamic literature reviewed did not have any

substantial coverage of matrimonial property. This oversite is glaring and is indicative of

the non-readiness to address an important issue in Muslim societies.

Maghniyyah’s volume on Five Schools of Islamic Law provides the blue print in how most

writers and scholars approach the topic i.e. confined under the topic of maintenance64. A

common feature among the five schools in their positions with regards to maintenance is

that it is not an automatic right and is dependent on many things on the part of the wife65. It

may cease without notice. What is wajib (obligatory) on the part of the husband is food,

clothing and housing which are determined according to the financial status of the parties.

Also maintenance is only treated during marriage and divorce but not as a consequence of

divorce.

Although functionaries at various agencies, religious and non-religious, involved in family

matters overwhelmingly subscribed to the notion that the division of matrimonial assets

was alien to Islamic practice they failed to link this with the text. Also, a perusal of cases at

the Kadhis Courts suggests that most judgements are concerned with pronouncing divorces

but not making awards.

Otherwise, courts tend to adopt strict interpretations of Islamic law. For example, even in

the famous case of Bi. Hawa, the trial court had been content with her former husband’s

readiness to pay a sum of 2,000/= as a parting gift to her in accordance with his religious

tenets.

62 also repeated in 2;241 63 In many passages including the listed ones the Quran warns husbands against stinginess 64 Muhammad Jawad Maghniyyah (ed.) The Five Schools of Islamic Law. 65 On a summary of obligation of husband and wife under various Muslim Codes see Welchman pp.170-180

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It was important to list the totality of Quranic texts on divorce here to understand not just

the content of the text but also the spirit of the message and the context in which it is to be

understood. For instance instead of denying or down playing the question of shares to

matrimonial assets it is crucial to recognize that in most passages, the Quran never ceases

to tie the discussion on divorce to mutual rights; justice of both parties, civility and an

acceptable settlement. For these conditions to be fulfilled, those with the power and means

are urged to be gracious, considerate and honest. Surely, these provisions on their own

defeat prevailing notions of a unilateral divorce which signals a shift in our thinking about

the matrimonial relationship.

The act of divorce is also not delinked from the totality of the matrimonial relationship and

the principles under which such a relation is to be governed. The Quran, for instance insists

on key virtues of consultations, humanity, humility, mercy, affection, respect, generous,

gracious, contentment, consensus, fairness, appreciative when parting far removed from

notions of a husbands sole prerogative. Moreover, it is important to emphasize that the

Quran makes provision or allotment to the spouse upon divorce wajib, a religious duty and

a sign of belief.

Another important principle advanced by these verses is the prohibition against harm

(dharaa). During a marriage a husband who harms his wife is liable to compensate her.

Harm has been defined broadly by numerous scholars to not only include physical harms

but also emotional, moral and financial harm. These verses also extend it to the ebb of the

marriage where husbands are exhorted not to engage in any act or practice likely to harm

the wife including not compensating her investments in a marriage and leaving her

economically vulnerable.

Stiles notes that the lack of uniformity in practice between the Kadhi of Mokotoni and of

Mfenesini where the later claimed to apply strict Islamic rules while the other was more

accommodating. Stiles finds evidence of fault based system in application in Mkokotoni

Kadhi’s Court66. There is also an indication of bias in the practice of Kadhis. For example,

Stiles found that Kadhis have been awarding men more than they are entitled for instance

in Khulu amounts claimed while women’s suit for maintenance are often forgone67. The

question of Kadhis being biased as well as corrupt is not novel and was captured by Gray

over a century and a half ago68.

3.2 The Practice in Muslim Majority Countries

66 At p.211 67 Stiles at … 68 See, History of Zanzibar from Middle ages to 1856.

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3.2.1 Administration of Islamic/Muslim Law Enactments, Malysia.

Like Zanzibar, the majority of Muslims in Malaysia are Shafii69. Personal laws governing

Muslims are compiled in the Administration of Islamic/Muslim Law Enactments and

consists of classical law as modified by Malay custom and adat. The court system is made

up of three levels of shariah courts in a system parallel to and independent of the civil

courts: Shariah Subordinate Courts, Shariah High Court and Shariah Appeal Court.

In Malaysia the following is required to be specified for a judicial application for divorce70:

amounts of payments of nafkah edah (idda period maintenance); mutaah (consolatory gift); and maskahwin (dower) he intends to make; and provision for the division of harta sepencarian (matrimonial property).

A wife divorced without just cause may apply for maintenance during her idda and mutaah,

levels of which are to be set by the court. The court also divides assets acquired by joint

effort during marriage, and may also order the division of assets acquired by sole efforts,

with consideration of the contribution made by the other party in terms of housework and

caring for the family, though the other party will in all cases receive the smaller portion.

The divorced wife is also entitled to reside in the marital home during the idda or until the

expiry of her custody or her remarriage, if the former husband cannot provide other

suitable accommodation. Malaysia acceded to the CEDAW in 1995.

3.2.2 Code of Personal Status 195671, Tunisia.

Tunisia is one of the pioneering countries in adopting an egalitarian marriage system in the

Muslim world. The Maliki School is the predominant school in the Tunisia. Law of Personal

Status inspired by unofficial draft codes of Maliki and Hanafi family law passed soon after

independence. Sharia courts were abolished in 1956. Divorce is a strictly judicial matter;

extra-judicial talaq has no validity.

The marital relationship is one of collaboration and accountability as prescribed by law.

Where divorce is not by mutual agreement the court may award compensation for mental

and material injury arising from the divorce72. If the injured spouse is the wife, this may

take the form of a lump sum or of regular alimony payments until she no longer has need of

them by cause of death or remarriages or her social circumstances change. Tunisia signed

the CEDAW in 1980 and ratified it in 1985 with a number of declarations and reservations.

69 Except where such may conflict with public interest. In such instances, the Councils (with the approval of State authorities) may follow minority Shafii views or interpretations from other three major Sunni madhab. 70 Extra judicial divorces are outlawed. 71 Amended in 1981. 72 See Article 31.

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3.2.3 Personal Status (Amendment) Law (No. 100 of 1985), Egypt.

The Hanafi School is the predominant school of fiqh in Egypt. Islamic jurisprudence is the

principal source of legislation.” Sharia courts were integrated into the national court

system in 1956. Family law is administered within the National Courts by judges trained in

sharia. Appeals are heard by regular judges in the Courts of Appeal and, ultimately, the

Court of Cassation.

A wife repudiated without cause or her consent is entitled to maintenance during her idda

and compensation (muta al-talaq) of at least two years maintenance73. The court will

consider the husband’s means, the circumstances of the divorce, and the length of the

marriage. No upper limit for compensation is stipulated. Maintenance claims for the Idda

period can be heard up to one year from the date of the divorce. A divorcing husband must

provide independent accommodation for his former wife who has custody of their minor

children. Egypt signed the CEDAW in 1980 and ratified it in 1981.

3.2.4 Code of Personal Status 1957-1958 (Moudawana)74, Morocco.

The Maliki School is the predominant madhhab in Morocco. Sadad courts are courts of first

instance for Muslim and Jewish personal law. Sharia sections of regional courts also hear all

matters of Islamic law affecting Moroccan Muslims. All judicial divorces are irrevocable

except divorce granted because of the husband’s oath of abstinence or inability to maintain.

Regulations relating to khul are based on classical law. The divorcing husband is obliged to

pay compensation if the talaq was on his part75. The 1993 amendments to the Code add to

this that the Kadhi shall assess the injury sustained by the arbitrarily divorced wife in

awarding compensation, with no upper or lower limits set to compensation awards.

Morocco acceded to the CEDAW in 1993.

4.0 Proposal on Identifying & Assessing Contribution to Family Assets.

4.1 Questions raised at juncture of this discussion

The context analysis of what is happening in Zanzibar, in the region, as well as in other

Muslim contexts raises a number of issues worthy of contemplation that need to be

discussed thoroughly before the next stage of recommending a formula for the division of

matrimonial property. These are discussed below.

Foremost it is important to determine what is the theory of the family that is being

contemplated in Zanzibar? Is it traditional? Non-traditional? Is it as contemplated under

73 This provision was introduced in 1985 to amend the 1920 law. 74 major amendments made by Law No. 1.93.347 1993. 75 Injury is also recognized in Iraq (Art 39) and Jordan where the upper limit for tawid is 3 years.

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Article 41 of the Turkish Constitution where the family was redefined as an entity that is

‘based on equality between spouses’?

Once this has been answered the next question to clarity is what marriage regime operates

or ought to operate in Zanzibar? This discussion is important as it will form the basis of

models that will guide or inform.

Zanzibar has a secular constitution. The super imposition of religious law on personal lives

is tantamount to violation of the constitutional order. Similarly the practice of identifying

Zanzibar according to a specific madhab (in this case Shafi) needs to be interrogated. The

identification with a particular madhab not only informs the prevailing discourses and

outlooks but also restricts the avenues for reform even within Islamic tools.

Does Act No.9 of 2017 withstand constitutional muster in so far as protecting the

citizenship rights of men and women in Zanzibar and Tanzania? Does it violate the

principles of equality and non-discrimination? Do the rules used (or proposed) in Kadhis

Courts promote patriarchal notions contrary to Fundamental Objectives and Directive

Principles of State Policy and in opposition to numerous laws, policies and measures

towards the promotion and advancement of Zanzibar/Tanzania women?

Some Islamic writers/ scholars assert that the duty of provision and support is incumbent

on men alone. Women are to be taken care of all their lives76. While such a preposition

may sound attractive does placing women under paternal power not deny women, as

individual and as a class capacity or agency with little regard to due process or equal

protection under the law (Art. 11 and 12)?

How do Muslim communities realize harmony between the ideal and the outcome in

matrimonial relationships? Is it fair for religious leaders to command women to remain at

home, to raise their children and to be obedient to their husbands with regards their

mobility and professional advancement then punish them by requiring proof of

contribution when the marriage breaks down? If women are not given the tools to

contribute to family assets but are then questioned (and penalized) for not contributing

can such logic be Islamic?

Does the practice of unilateral divorce promote the notion of family welfare and stability?

What practical benefits are there in preserving such a system? What disadvantages are

there in retaining such a practice?

4.2 Towards a formula for allotting matrimonial property

The purview of domestic relations encompasses the moment of formation of such relations,

the duration of the marriage and the dissolution of family relations as well as the rights and

76 For example, Shaykh Abdu Rahman Abdul Khaliq, ISANA p.13-4.

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obligations that flow from the relationships. This should be the central reference of any

discussion about family rights instead of discussing each stage in isolation.

4.2.1 Clarity over key definitions and standards

The lack of clarity over definitions, standards and property regime are among the key

challenges in identifying and ultimately apportioning property acquired or enhanced

during the subsistence of a marriage. For example by valuing monetary contributions over

nurturing, child rearing and upkeep roles defining the parameters of power in the

matrimonial relationship?

For a long time legislators as well as functionaries in Zanzibar have assumed that the

‘Islamic’ label was sufficient or problem free and thus have desisted defining terms or

developing bodies of law that embody policy objectives and individual rights. As has been

appreciated in the examples from Muslim majority countries this has not been enough.

Governments have often had to intervene to harmonise public policy, statutory laws,

customs and religious traditions of the populace.

4.2.2 Identify and value each party’s contribution

The lack of a clear standard in assessing each party's contribution and the stringent

standard the courts required in these matters complicates the determination of who should

get what? The issue is that presently narrow frames are used to assess contributions and

the tendency is to value monetary contributions to non-monetary contributions.

While there seems some reluctance even by the courts to value non-monetary

contributions this is changing. Hirsch in her study of marital disputes in Malindi Kadhis

Court asserts that both men and women characterize household duties as women’s

contribution to the marriage and depict this labour as balancing men’s financial

contribution.

Courts in the United States have gone further and assess the contributions of the parties to

the acquisition, preservation and appreciation in the value of the estate. It is equally

important to take stock of contributions outside the scope of the traditional "wifely/

domestic" duties. Investments made by couples in the form of education, shares in stock,

better opportunities professional or otherwise, whereby one spouse forgoes the

companionship, aid of the other, or a standard of living with the hope of investing for a

better future are active ways in which either spouse contributes to the acquiring of joint

assets77.

77 For example when one of the parties, usually a man, leaves for further studies or for better working opportunities a wife not only misses his companionship but also his services and has to make do largely uncompensated.

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The TLRC contemplated section 114(b) on the extent of contributions made by each party

in money, property or work in acquiring the assets and recommended including wifely

duties and housework78. The challenge is how do we compute domestic work? One

approach that can be used is to make a finding of how much it costs to eat at a hotel, daily,

to launder clothes, professionally, and to have live in help. The costs for these services can

be put together to determine their worth, and revised in case of devaluation. In case of the

emotional "wifely duties," the principle of (emotional) damages in the law of Torts can

govern, or the legislature can come up with a formula along those lines to govern the

situation.

In assessing the value of contributions courts consider the market value of the property or

subject of division; forgone opportunities sustained; enhanced value etc. Likewise, any

private property of the parties that is likely to be jointly used or improved, e.g., a house,

business, etc., can be valued at the time of contracting a marriage and re-valued upon

dissolution to determine the other party's contribution and improvement. The value of

assets should be evaluated professionally.

The court will, following the formula set, compute the value of contribution made by each

party in terms of money or services, and apportion the asset accordingly. The evaluation

should bear in mind inflation and other economic considerations.

4.2.3 Work towards apportioning "equitable" shares

Ghana’s constitutional court using Article 22 (3) (b) ordered maintenance or the transfer of

movable or immovable property to reach a settlement that is equitable. Postema v.

Postema held that for property division to be considered fair and equitable between the

parties it must be a product of a marital partnership. In Charomo v. Katsidzira, the woman's

contribution was clearly more than that done by the man and overlooking this factor may

defeat the purpose of the Act in ensuring justice to the parties involved.

To be assessed is the extent of efforts; sacrifices and contributions made. The court must

then go on to determine the appropriate remedy or means of compensation that is fair and

equitable. It is heartening to see that many verses of the Qur’an also urge believers to reach

a settlement that is equitable such that all parties are content.

4.2.4 Determine a framework for guiding the allocation of assets

Jurisdictions in the US have proposed frameworks for guiding the allocation of assets upon

divorce. Among these are the length of marriage; the age of the parties; the health of the

parties; sources of income; occupation; employability; liabilities; needs of each party79.

78 Law Reform Commission Report on the LMA, (1994), p. 14. 79 See Connecticut General Statutes 466-8

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Section 7(4) of the Matrimonial Causes Act provide for the following factors to be

considered when making a determination of the division, apportionment or distribution of

the assets of the spouses:

a. the income, earning capacity, assets and other financial resources which each

spouse and child has or is likely to have in the foreseeable future;

b. the financial needs, obligation and responsibilities which each spouse and child

has or is likely to have in the foreseeable future;

c. the standard of living of the family, including the manner in which any child is

being educated or trained or expected to be educated or trained;

d. the age and physical and mental condition of each spouse and child;

e. the direct or indirect contribution made by each spouse to the family, including

contributions made by looking after the home and caring for the family and any

other domestic duties;

f. the value to either of the spouses or to any child of any benefit, including a pension

or gratuity, which such spouse or child will lose as a result of the dissolution of the

marriage;

g. the duration of the marriage;

and in doing so the court shall endeavour as far as is reasonable and practicable and,

having regard to their conduct, is just to do so, to place the spouses and children in the

position they would have been in had a normal marriage relationship continued between

the spouses.

The identification of separate property at the time of contracting of a marriage can be done

by incorporating it among the details in the marriage certificate indicating how such

property or future property should be treated. Upon dissolution, a court will resort to the

marriage certificate in determining what property is subject to division or not. This will

require monitoring of compliance with existing requirement of registering marriages80.

Among family investments courts in Kenya consider include real estate, farming, shares

and other lucrative opportunities, motor vehicles and investments carried out under legal

regimes such as partnerships, companies, limited liability partnerships, SACCOS and other

loose legal arrangements. If the asset cannot be physically apportioned then one party

should pay the other the difference if they do not want it sold. The parties can also agree to

80 Sections of Cap 91 and Sections 42-55 of the LMA.

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use the asset jointly, where contract law or partnership principles can be used to resolve

future problems.

4.2.5 Award a remedy that is effective

The appellate court set aside the order of the trial court directing the division of three

houses equally among the parties together with sixteen sewing machines81. An order for

maintenance at Sh10,000 per month effective from the date the case was filed was also

made. Instead the appellate court replaced it with an order that the respondent is given the

house at Tandika as her share in the matrimonial assets to sidestep the difficult for the

Applicant in accessing the two houses situated on clan land. In this way, the remedy to the

respondent was seen to be more effective than the remedy granted to her by trial court.

In Rose v Rose82 the court held that a marriage of short duration with no evidence of

significant co-mingling of assets between parties the court should endeavour to leave

parties in a position they would have been had no marriage taken place. There was

therefore no need to engage in a protracted process of apportioning assets.

The sale of property so as to apportion the same should be a last resort since this involves

high costs as the property will have to be valued and auctioned. Moreover, fair valuation of

the property requires an effective monitoring scheme by the court which is not always

forthcoming.

4.2.6: Align National Policies to legislative and judicial decisions

Kimariyo, J. in Naftal Joseph Kalalu v. Angela Mashirima83 stated that State authority and all

its agencies are obliged to direct their policies and programmes towards ensuring among

other things that human dignity is preserved and upheld in accordance with the spirit of

the Universal Declaration of Human Rights, the foundation of International Human Rights

Law, which lays down the minimum standards of Human rights to be observed by the

nations.

The Constitutions of the United Republic of Tanzania 1977 and Zanzibar recognise and

incorporate the Bill of Rights under article 12-29. Among such rights is equality of all

human beings and equality before the law – (Article 12 and 13 of the Constitution). In other

words discrimination is barred by the Constitution84.

Justice Kimario is unequivocal that customary and similar practices which discriminate

against women violate the constitution. Accordingly laws should be investigated in terms of

81 Civil Appeal No. 214 of 2000 82 Supreme Court of Alaska 1988 755 P2d 1121) 83 Civil Appeal No. 145 of 2001 especially pp. 242 and 243 84 She made similar statement in Lawrence Mtefu v. Germana Mtefu supra.

25

their administration and application and how this affects the rights of individuals85. The

legal apparatus should be a mechanism of realizing and interpreting individual and

national aspirations rather than dictating solutions that have very little relevance in

people's lives.

4.2.7: Allow a clean and dignified break

The object of any division should allow parties to rebounce back in the next phase of their

lives and offer a clean break86. It is equally pertinent to consider those factors in the labor

force that make the prospect of re-joining the labour force bleak e.g. discriminatory hiring

practices, availability of positions, qualification for a post in terms of skills, and age. In

Zanzibar men regularly refuse their wives permission to work outside the home, even if

they have the qualifications. It would be unjust to then punish her ‘need for support’ upon

divorce equivalent to the time she was denied the opportunity for professional

advancement.

Thus maintenance allowances should be generous. Alternatively the court can order for a

fund to be set aside to allow the other part to finish her education or acquire skills or open

a business. The financing of such a scheme can extend to allow for a reasonable time for the

enterprise to establish itself. For example fifteen months after graduation should be ample

time for a graduate to secure some form of employment even if temporary. About three

years should be adequate to get experience in operating a business etc. The court can use

available surveys to ascertain the trends.

4.2.8: Maslaha should be a paramount consideration

In a number of Islamic jurisdictions divorce is a legal process and subject to judicial review.

Divorce proceedings in Morocco for instance are subject to judicial review. Divorce in

Zanzibar should also be regulated because its consequences are matters of public concern

and because doing so will assist the administration of the divorce decree87. Under the LMA

only a court with competent jurisdiction can issue a talak. Although this has been

challenged in some quarters purportedly as unislamic, there are a number of Muslim

85 A. Armstrong, Women and Law in South Africa, (1987), p. v-ix discusses appropriate methodologies. 86Section 308 of the UMDA provides for maintenance only if the spouse is in need being unable to support themselves reasonably or through employment due to his/her condition and circumstance. The law encouraged division of property once and for all rather than extended financial awards. 87 Presently there is a requirement to register divorces under a new law 2018

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countries that demand the same on the basis on maslaha and expediency in dealing with

the aftermath of dissolution.

Also there should be a readiness in operating beyond the comfort zone. In the case of

Masango v. Masango88 a case similar to the Scholastica case, an heir sought to evict the

widow, his step mother, from one of the deceased's properties in which she resided with

lodgers from whom she obtained rent for her upkeep. The court held that the heir should

provide a suitable alternative for her shelter if he wants her evicted pursuant to his

customary duty to care for his father's wife and children. The court did not accept the

argument of ‘entitlement’ under customary law but sought to satisfy itself of the social

benefit upholding such claims have on society. Is the object to leave widows destitute or is

it to retain them with dignity?

5.0: Recommendations and Conclusions

Amina Wadud muses that with regards to elevating women, Muslims are far from the

Quranic ideal. Muslim Women all over the world have gone to extreme lengths to realise

their rights available under constitutional frameworks or statutory laws but denied under

rigid interpretations as demonstrated in the Shah Beno case89. While the problems posed

by religious law for women rights elicits great controversy it is important to recognize that

Muslim jurisdictions have striven towards gender equality principles in their legal

system90. For instance, different types of divorce were introduced in a number of Muslim

countries to allow women to initiate divorce. Malaysia and Turkey provide for equal

division of matrimonial assets between spouses.

Thus the question of reforms in Muslim personal law is not novel. If anything it is inevitable

if whatever is decided by the Kadhi relates to the political and social lives of the parties91.

An eminent Muslim scholar asserts that Shariah must be used to promote human dignity,

human rights and welfare and issues of contemporary concerns to Muslims92. The goals of

Shariah change with circumstances and must take human welfare as its focus. The

overriding objective of the Shariah is to protect faith; life; intellect; property and lineage.

The United Republic of Tanzania ratified the Convention on the Elimination of all Forms of

Discrimination against Women since 17th July, 1980. Article 15 requires State Parties to

accord women equality with men before the law. Chapter Two and Three of the Zanzibar

Constitution. Moreover, family arrangements have changed drastically. For example the

88 From Zimbabwe SC 66/86 (unreported). 89 1985 SCR (3) 844

90 Madhu Kishwar ….. 91 Hirsch 92 Mohammad Hashim Kamal, 90-91

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single headed family is a reality to be contended with instead of ignoring it as the

exception. It is also a fact that more women survive their husbands and perhaps their

children.

The prescribed period of maintenance envisaged under Islamic law is too short to be of

significance. It is also unrealistic to expect women to depend on others for their future

needs. More realistic measures akin to social security needs to be in place to address the

needs of the non-earning spouse in an economy far removed from that classical Islamic law

operated from.

In light of the issues raised in this review the following recommendations are proposed to

supplement initiatives at developing a formula for dividing matrimonial assets:-

Law must be clear in its meaning. The Kadhi’s Court act only defines Islamic Shariah

and even so it does not do so comprehensively. Judicial activism into the

interpretation of S.114 indicate that the legislature failed to achieve a degree of

certainty in the law.

Form in which marriages and divorces are registered can be improved by inserting

particulars as to the marriage regime entered and property owned separately and

jointly as part of the rules/regulations.

Property distribution should continue to be part of divorce claim. Such a procedure

will bring some consistency in disposing of such matters. Importantly it will

facilitate the availability of data which can be used in policy development.

Judicial discretion needs to be limited and monitored so as to ensure fairness and

justice to both parties as contemplated by policy and legal provisos. In this regard

Kadhis and Kadhis Courts must abandon the myopia on women’s rights and

specifically on women’s human rights93 and instead seek to promote their rights as

citizens of Zanzibar.

It is also important to take cognizance of the fact that women’s legal status affects

her access and entitlement to property upon the dissolution of a marriage. Two

separate laws govern a divorcee and a widow, the LMA and the Succession Act with

different consequences to their property rights94. It is therefore important to

reconsider to conceptualize the status of women who are in a matrimonial

relationship be they separated, divorced or widowed.

The case of Scholastica Benedict v. Martin Benedict,95 demonstrates how former

wives are denied the protections envisaged under the LMA. The claims of the

Appellant that the home she lived in was matrimonial property was ignored by the

93 See generally Joanna Kerr Ours by Right; Women’s Rights as Human Rights 94 See, Rwezaura, Journal of Family Law, (1990-91), p. 456. 95 Mwanza Court of Appeal, Civ. App. No. 26 of 1988.

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Court of Appeal which ruled that under Haya law, a widow has no right to inherit

from her husband lest she is the last surviving member of his clan. The same court

that ruled on Bi. Hawa conveniently ignored the fact that before being widowed the

property relationship of Scholastica and to what she and her husband owned was

the same.

The concern should not solely be in establishing contribution in the acquisition of

property but also in its preservation and appreciation or depreciation in value. This

is critical from a gender perspective since valuing monetary contribution prizes

financial injection and not the labour that goes in the upkeep of a home.

First, Kadhis court must revise the view they see a marriage institution.

Overwhelmingly they see the husband as active and the wife as passive. This is an

erroneous perspective. There should also be an openness to appreciate the diverse

ways parties contribute to the matrimonial relationship. Equally important is a

preparedness to take into account legal developments in the constitutional and legal

frameworks as well as statutory obligations stipulated in the laws related to

property rights.

There is need to thrash out if arriving at acceptable definition and equitable

distribution of matrimonial property is a Q of Fiqh (jurisprudence) or Shariah

(revelation). Masud reminds of the adaptability of the Shariah to Social Change96.

The present sources of law have to be understood from the point of view of jurists

who developed/expounded on rulings from specific contexts and era. In developing

new jurisprudence we must not loose sight of the purpose or end of the law.

The Act overly concentrates on Kadhis while the the Kadhi may be in fact be the last

resort in solving marital disputes. Hirsch, for example, shows the power of clerks in

the Kadhis office: they are the gate keepers screening what goes before the Kadhi.

The Kadhis Court Act sets a high standard of proof for eligibility to share in any

wealth created or improved during the subsistence of a marriage. However couples

will have to contend with procedural requirements under the law to claim the

benefits of the law something that may prove difficult in Muslim marriages in light

of procedural violations such as not registering marriages or divorces97. In

Mohamed Kijida vs. Fransica Kijida Civil Appeal No. 199 of 2004 the court ruled that

the parties are still husband and wife until when their marriage is dissolved by

another Court of competent jurisdiction and therefore it cannot order division of

assets during a subsisting marriage.

96 See generally Khalid Masud, 97 Registration of marriages was made compulsory in 1922 see Elke p.113. Registration of talak or divorces is also required in Tunisia, Egypt, Malaysia and Singapore

29

The concept of separate property may be problematic when translated in some

traditional concepts of ownership where individual title as opposed to communal

title did not carry the same connotation envisaged by the British property system.98

Many jurists, academics and individuals approach laws or cultures impacting on women’s

status as givens and therefore non-negotiable. They hesitate to relate the law with social,

political and economic forces that prompted its adoption or application. Most, for instance,

do not factor in the impact of colonialism and post-colonialism on gender relations or even

in concepts of ownership. The pioneering work of anthropologists or sociologists is vital in

discerning the new control of meaning in the reinterpretation of gender relations.

Amadiume notes that this reinterpretation was inspired by the control over women

politically and socially. Patricians invoked alien gender ideologies which often had little

basis in the local culture to justify the exclusion of women in key spaces and structures.

Fatima Mernissi makes a similar observation with regards how text has been interpreted

and applied in dominant discourses from Islamic traditions. Muslim jurists and activists

should earnestly engage in anthropological inquiry to address prevailing misconceptions

and representations about women's social status in text as well as in religious tradition99.

98 See, Frank Mifsud, Customary Law and Land law in Africa. 99 John R. Bowen (2015) Anthropology and Islamic Law

30

5.0 References

a. Bibliography

2017 Tamko la Pamoja la Asasi za Kiraia Kuhusu Mswada wa Mahakama ya Kadhi 13-09-

2017

Amina Wadud (1999) Qur’an and Woman: Rereading the sacred text from a Woman’s

Perspective, Oxford University Press.

Andreea-Lorena Codreanu ( ) Applicable Law Principles for Matrimonial Property Regimes

National Union of Notaries Public of Romania available at

ftp://ftp.repec.org/opt/ReDIF/RePEc/rau/clieui/Fa14/CLI-FA14-A19.pdf

Anver M. Emon and Rumee Ahmed (eds.)( )A Historiography of Islamic Family Law Available online at http://eprints.soas.ac.uk/22402/

Blackstone, Commentaries on the Law of England

Elke E. Stockreiter (2015) Islamic Law, Gender, and Social Change in Post-Abolition Zanzibar, Cambridge Univ Press

Erin E. Stiles (2003) "When is a Divorce a Divorce? Determining Intention in Zanzibar's

Islamic Courts." Ethnology: An International Journal of Cultural and Social Anthropology 42

(4): 273-288.

Erin E. Stiles (2006) "Broken Edda and Marital Mistakes: Two Recent Disputes from an

Islamic Court in Zanzibar." In Dispensing Justice in Islam: Qadis and their Judgments,

editors Muhammad Khalid Masud, Rudolph Peters and David S. Powers. Leiden: Brill: 95-

116.

Erin E. Stiles (2009) An Islamic Court in Context: An Ethnographic Study of Judicial

Reasoning. Palgrave Macmillan

Erin E. Stiles (2013) "Islamic Law in East Africa." In Jonathan A. C. Brown, ed., Oxford

Islamic Studies Online (2013) and in The Oxford Encyclopedia of Islam and Law (2014).

Oxford University Press.

Erin E. Stiles (2016) "East Africa." In The [Oxford] Encyclopedia of Islam and Law. Oxford

Islamic Studies Online. Feb 9, 2016.

http://www.oxfordislamicstudies.com.unr.idm.oclc.org/article/opr/t349/e0041.

31

Frank Mifsud, Customary Law and Land law in Africa 1967

Gray () History of Zanzibar from Middle ages to 1856, Oxford University Press

Hamudi Ismail Majamba (2008) Perspective on the Kadhi’s Court inn Zanzibar, ZLSC

publications Book No. 8

Ibrahim Adam Mohammed () The Status of Women in Islam

Ifi Amadiume (1987)Male Daughters, Female Husbands: Gender and Sex in an African Society, Zed Books

Issa B. Oba (2015) Journal of Law, Policy and Globalization Vol.37.

Joanna Kerr (ed.) (1993) Ours by Right; Women’s Rights as Human Rights, Zed Books

Johanna Bond (ed) (2005). Voices of African Women: Women's Rights in Ghana, Uganda

and Tanzania. Durham: Carolina Academic Press.

John R. Bowen (2015) Anthropology and Islamic Law, The Oxford Handbook of Islamic Law

Judith C. Areen (1992) Cases and Materials on Family Law 3rd edition, the Foundation

Press Inc.

Julie Stuart (1987) Playing the game: Women's inheritance of property in Zimbabwe, in

Women and Law in Southern Africa

Lynn Welchman (2016) A Historiography of Islamic Family Law, SOAS University of

London, School of Law available at

http://www.musawah.org/sites/default/files/Welchman_statutory_provisions.pdf

Magret Schuler (ed.), in Women and Law in Southern Africa,

Mernissi, F. (1991). The veil and the male elite: A feminist interpretation of women's rights in Islam. Reading, Mass.: Addison-Wesley Pub. Co

Mohammad Hashim Kamal

Mohammed Makame Haji (216) “The Quick Sands of the Law of Marriage and Zanzibar: Some Missing Footnotes” Journal of Culture, Society and Development Vol.15, 2016 available at http://www.iiste.org/Journals/index.php/JCSD/article/viewFile/28122/28868

Muhammad Jawad Maghniyyah (ed.) The Five Schools of Islamic Law: Al-Hanafi, al-Hanbali, al-Ja’fari, al-Maliki, al-Shafi’i, Ansariyan Publications - Qum

Muhammad K. Masud Muslim (2001) Muslim Jurists’ Quest for the normative basis of

Shari’a, ISIM

32

Rewezaura B.A (1981) Sheria ya Ndoa Tanzania

Rwezaura, B. A. “Tanzania Family Law and the New Bill of Rights” in Vol. 29(2) Journal of

Family Law [1990-91] 453 at 456-458.

Sara Hossain Equality in the home: Women’s Rights and Personal Laws in South East Asia

in Rebeka J Cook

Shaykh Abdu Rahman Abdul Khaliq

Sirje Laurel Weldon (1992) The Shah Bano controversy: gender versus minority rights in

India, MA Thesis

Sisters in Islam (2009) Home Truths: A Global Report on Equality in the Muslim Family

Susan F. Hirsch (1998) Pronouncing and Persevering: Gender and the Discourses of

Disputing in an ... University of Chicago

URT (1994) Tanzania Law Reform Commission Report on the LMA

URT (2015) Tanzania Health and Demographic Survey 2015, NBS.

Welshman Ncube (1087) “Underprivileged and inequality: the matrimonial property rights

of women in Zimbabwe”, in Women and Law in Southern Africa

b. List of Cases

Charomo v. Katsidzira

Graham v. Graham, 33 F. Supp. 936 (ED Mich. 1940)

Mohamed Kijida vs. Fransica Kijida

Mtefu v. Germana Mtefu

Muchada v. Muchada

O’neil v. O’neil

Postema v Postema 471 N.W.2d 912, 189 Mich. App. 89

Rose v Rose Supreme Court of Alaska 1988 755 P2d 1121

Scholastica Benedict v. Martin Benedict

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c. List of Legislation

Code of Personal Status 1956

Index of Laws of Zanzibar

Moudawana -Code of Personal Status Morocco

Muslim Marriage and Divorce (Registration) Rules (Gambia)

Muslim Marriage and Divorce Act Chapter 42:01 Act No.1 of 1941 (Gambia)

Personal Status (Amendment) Law (No. 100 of 1985),

The Constitution of the United Republic of Tanzania 1977 (as amended)

The Constitution of Zanzibar 1984 (as amended)

The Dissolution of Muslim Marriage Act 1939.

The Kadhis Court Act 1985

The Kadhis Court Act 2017

The Law of Marriage Act

The Marriage (Solemnization and Registration) Decree Cap 92

The Marriage and Divorce (Muslim) Registration Cap 91

The Matrimonial Causes Act

The Royals Marriages Decree

The Uniform Marriage and Divorce Act (UMDA)

d. On line resources

https://dx.doi.org/10.14288/1.0086528

http://www.musawah.org

https://www.britannica.com

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oxfordislamicstudies.com

Equality Starts in the Family Campaign

https://scholarblogs.emory.edu/islamic-family-law

http://corpus.learningpartnership.org/

http://wlac.or.tz/publications/research-publications