Our society typically devotes huge attention to marriage since it takes up almost 75% of our lives at some point. But a problem arises with the continuation of the marriage; that’s, of course, a real challenge, and here we are mostly left with separation as the most likely outcome in the worst-case scenario.

The real question is: what happens to the property that the two spouses acquired during the time they were married, and what separates that property from the property that the partners might have acquired before meeting the spouse and entering the marriage?

This property that is acquired during the course of the marriage with the joint effort of the husband and wife is called matrimonial property or assets.

Matrimonial Assets as envisaged by Section 144 of the Marriage Act and as elaborated in the Court of Appeal Case of Bi Hawa Mohamed vs. Ally Seif Civil Appeal No. 9 of 1998, which gave details on Matrimonial Assets of Family Assets to be “those things that are acquired by one, another, or both 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 parties: (1) those that are of a capital nature, such as the matrimonial home and the furniture in it; and (2) those that are of a revenue-producing nature, such as the earning power of the husband and wife.”

One may raise a question about the status of the property he or she acquired before marriage. This question usually faces spouses during separation. For example, the husband built the house before the marriage, and during the marriage, it was used as the house for the family.

According to Section 144(3) of the Marriage Act, “assets acquired during the marriage include assets owned before the marriage by one party that have been substantially improved during the marriage by the other party or by their joint efforts.”

From the provision above, it is clear that if the said property is used in the course of the marriage and was improved by both spouses, then the property becomes matrimonial property.

Another question that a spouse may inquire about is what the extent of the Joint effort is mentioned by the law.

This question is answered in the case of Amon Benedictor Buchwa v. Aisha Shabani Hamisi (PC Matrimonial Appeal 11 of 2019) [2020] TZHC 118, the court had this to say;

“Our courts have established a principle that recognizes each spouse’s contribution to the acquisition of property and this contribution may be direct or monetary. When distributing the property of such divorced couple, it is immaterial that one of the spouses was not financially endowed.”

As a general rule, marriage does not disentitle one spouse from having a property in exclusion of another. A property acquired in the name of one spouse is presumed to belong to that spouse unless the presumption is rebutted. However, a property acquired during marriage by joint effort is a matrimonial asset that belongs to both spouses and is liable to be distributed to both spouses upon divorce.

The High Court of Tanzania in a recent case has widened the scope of matrimonial assets to cover even a property acquired by adultery during marriage. The Court was of the view that when it is proved that a party who cheated, obtained an advantage in the process while the other party maintained the family at that time, the accruing benefit is nothing but matrimonial property because the efforts the honest party puts in caring for the family is enough contribution towards acquisition of that property. Based on that reasoning, the Court awarded half of the value of the property obtained through adultery to the honest party. If this decision isn’t overturned, the Court can order the division of the properties acquired by your wife through adultery if at the time of the acquisition of those properties you were taking care of the family.

Therefore, it is simple to state that matrimonial property is all property that a husband and wife developed and acquired together with their joint efforts as a family.

KKB ATTORNEYS AT LAW