Hamisi Abdallah Mkwekea vs. Darini Selemani Mrope (PC Civil Appeal No. 17 of 2023) [2024] TZHC 1109 (20 March 2024)

Family Law – division of matrimonial property – factors to be considered in dividing matrimonial property – criteria to be used to identify matrimonial property – Law of Marriage Act, cap 29, RE 2019, section 114.

Family Law – custody and maintenance – maintenance of infant children vis-à-vis children over 18 years – meaning of infant child – whether maintenance orders could be issued for children above 18 years old – Law of Child Act, cap 13, RE 2019, sections 26, 48 and 44.

The appeal revolved around whether the trial court and the first appellate court had correctly divided the matrimonial property between the parties and made provisions for the maintenance of the children. The court discussed the factors to be considered in identification and division of matrimonial property. Further, it held that maintenance orders could be issued for children above 18 years old provided it was proved that such children were still pursuing education.

Brief facts

The appeal originated from the appellant’s petition for divorce and division of matrimonial property before the Primary Court (the trial court). The trial court decided that the marriage between the parties had not irretrievably broken down, and therefore, divorce was not granted. Dissatisfied, the appellant appealed to the District Court (the first appellate court) which reversed the decision of the trial court and declared that the marriage between the parties had irretrievably broken down, hence it proceeded to grant a decree of divorce.

Following the grant of divorce by the first appellate court, it ordered the case file to be returned to the trial court for the determination of issues related to matrimonial division and child maintenance. The trial court subsequently complied with the order and distributed the matrimonial property to both parties.

In terms of maintenance and custody, the trial court ordered both maintenance and custody of one child T to the appellant. That decision was grounded in the fact that among the six surviving children, T was the sole child under the age of 18 requiring maintenance. As for the other children, the trial court's perspective was that since they had exceeded the age of 18, the Law of Child Act [CAP. 13 R.E. 2019] did not compel the appellant to provide maintenance for them.

The respondent was aggrieved by the trial court’s decision regarding the division of the matrimonial property and faulted the trial court for failing to order the appellant to provide maintenance for children over 18 years old who were still dependent and undergoing education. The respondent thus appealed to the District Court.

The District Court held that the division of matrimonial properties was generally proper, except for the house located at Kibangule Mbagala Dar es Salaam. That decision was reversed, and the house was awarded to the respondent. Conversely, the house at Likotwa, which had been awarded to the respondent at the trial court, was given to the appellant. Regarding the maintenance of the children, the District Court required both parties to persist in providing support for the well-being of their children. It found that parents were duty-bound to support their children, regardless of whether they had reached the age of 18, as long as the children remained dependent on them.

That decision aggrieved the appellant prompting the filing of the instant appeal.

Issues

1. What were the criteria used to identify matrimonial property?
2. What were the factors to be considered by the court when dividing matrimonial property?
3. Whether maintenance orders could be issued for children above 18 years old.

Relevant provisions of the law

Law of Marriage Act, cap 29, RE 2019,

Section 114

(1)The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale.

(2) In exercising the power conferred by subsection (1), the court shall have regard to: -

(a) the customs of the community to which the parties belong;

(b) the extent of the contributions made by each party in money property, or work towards the acquiring of the assets;

(c) to any debts owing by party which were contracted for their joint benefit; and

(d) to the needs of the infant children, if any of the marriage, and subject to those considerations, shall incline towards equality of division.

Law of Child Act, cap 13, RE 2019

Section 26

(1) Subject to the provisions of the Law of Marriage Act, where parents of a child are separated or divorced, a child shall have a right to -

(a) maintenance and education of the quality he enjoyed immediately before his parents were separated or divorced

Section 44

A court shall consider the following matters when making a maintenance order-

(a) the income and wealth of both parents of the child or of the person legally liable to maintain the child;

(b) any impairment of the earning capacity of the person with a duty to maintain the child;

(c) the financial responsibility of the person with respect to the maintenance of other children;

d) the cost of living in the area where the child is resident; and

(e) the rights of the child under this Act.

Section 48

1. Notwithstanding the provisions of section 47, the court may continue to enforce a maintenance order after a child has attained eighteen years if the child is engaged in a course of continuing education or training.

Held

1. From close examination of the appellant’s submission, it appeared the appellant impliedly accepted the Kibangule house as matrimonial property. Thus, the appellant acknowledged the correctness of the primary court's decision regarding the division of that house, implying that the house at Kibangule Dar es Salaam was a matrimonial property. That inference arose from the fact that the primary court, after careful evaluation and analysis of the evidence, concluded that the said house was part of the matrimonial assets and proceeded to divide it to the appellant. If the court had determined during its assessment of the evidence that the house was not a matrimonial property, it would not have proceeded with its division. Therefore, by agreeing with the primary court's finding in respect of the division of that house, the appellant was implicitly admitting that the Kibangule house in Dar es Salaam was a matrimonial property.
2. Matrimonial property was property acquired by one or other spouse before or during their marriage, with the intention that there should be continuing provisions for them and their children during their joint lives. Therefore, if the subject house was built with the intention that it should be continuing provision for them and their children during their joint life, it was a matrimonial asset. Additionally, according to section 114 (3) of the Law of Marriage Act, cap 29, RE 2019 (the LMA), if the asset was acquired by one spouse before marriage but substantially improved by both spouses after marriage, it was a matrimonial asset. Based on the foregoing, it was sufficient to conclude that the house located at Kibangule, Dar es Salaam was matrimonial property.
3. The division of matrimonial assets was regulated by section 114 of the LMA. That provision offered guidance to the court regarding the various factors to be taken into consideration when dividing matrimonial assets.
4. On whether the trial court erred in awarding the house located at Kibangule, in its determination regarding the award of that house to the respondent instead of the appellant, the first appellate court noted that the instant court had directed the respondent to continue occupying pending the determination of the instant appeal. Since the proper procedure had been followed, it was not correct to reason that the house should remain with the respondent based on a previous finding by the instant court which just issued the order pending the proper procedure to be complied with.
5. The law regarding the division of matrimonial properties was clear in articulating that the court must take into account the contribution of each party while dealing with the issues of the division of matrimonial property. Furthermore, if the criterion for consideration was children, the law explicitly referred to infant children.
6. Considering the evidence from both parties, it was evident that aside from the appellant’s sale agreement for purchasing the plot, the remaining evidence concerning the construction of the house was too general and did not demonstrate the contribution of each party. The appellant claimed that the respondent found the house in its finishing stage without providing detailed clarification, while the respondent simply stated that they built it together without further elaboration. Based on that evidence, it was apparent that each party claimed to have contributed to the construction of the house. However, besides their general assertions, neither party provided detailed explanations on how they were involved in the construction process.
7. Therefore, considering how the evidence was presented, the criterion of one party retaining the house in Dar es Salaam while the other received the one in Likotwa Lindi did not appear justified. The first appellate court reasoning in revising the trial court order of division of that house was that the respondent had been residing in the house with her family throughout, hence she deserved to retain it. However, section 114 (2) (d) of the LIMA stated that the needs of infant children, if any, would be taken into account in the division of matrimonial assets, and the court should lean towards equality of division, subject to those considerations. From that provision, the court would only be inclined towards equal division after considering the needs of the infant children, if they existed.
8. While the LMA, cap 29, RE, 2019 did not provide a definition for infant or infant child, it was worth noting that the previous version of the law, LMA, cap 29, RE 2002, defined infant or infant child as a child who had not attained the age of eighteen years. Similarly, previous jurisprudence on the subject had found that an infant child was a child who had not yet attained 18 years old.
9. In the instant matter, considering the evidence in the records, among the six surviving children of the parties, the youngest was 13 years old and was placed in the custody of the appellant, while the rest were over 18 years old. It was clear that even if the first appellate court magistrate intended to consider the provision of section 114 (b) of the LMA in the division of that house, still it was not entirely correct because, based on the evidence, there were no infant children; all children, except for the one in the custody of the appellant, did not meet the definition of infant children.
10. There was uncertainty in discerning the exact criterion used by the two lower courts to ascertain which party should retain the house in Dar es Salaam and which should receive the one in Likotwa Lindi. That uncertainty stemmed from the fact that the evidence concerning the contribution to the acquisition of the said property was too general; neither party specifically delineated how they contributed to the construction, although each asserted their involvement in their testimonies. Based on that observation, there was a misapprehension of the evidence by the two lower courts, necessitating intervention by the instant court in their findings. Accordingly, upon reviewing the evidence on record, it was fair and equitable for each party to receive a share in those two houses.
11. Since the evidence indicated that the appellant was the one who purchased the plot on which the house in Kibangule, Dar es Salaam was built, in dividing that property, he was awarded 60% share and allocating 40% share to the respondent. As for the house in Likotwa, Lindi, the appellant was awarded 50% share and the respondent was awarded 50% share. However, either party had the option to compensate the other party for their share and retain the matrimonial property.
12. On the issue of maintenance, based on the records and the submission presented by both parties, the only child under the age of 18 was T, who was allegedly 13 years old and under the custody of the appellant. The remaining children were all above 18 years old.
13. According to section 129 (1) of the LMA, the obligation to maintain children was imposed on the male parent. That provision should be read together with section 44 of the Law of Child Act, cap 13, RE 2019 (the LCA) which outlined the circumstances to be considered when issuing a maintenance order.
14. Section 26 (1) (a) of the LCA provided for the right of a child to receive maintenance and education of the same quality as they enjoyed immediately before the separation or divorce of their parents. Section 48(1) of the LCA addressed the conditions under which maintenance orders could continue in certain situations. It stated that the court could continue to enforce a maintenance order after a child had attained eighteen years if the child was engaged in a course of continuing education or training.  Considering that provision, it was evident that maintenance orders could be issued even for children who were above 18 years old, only if there was evidence that such children were still pursuing education.
15. The maintenance order by the first appellate court decreed both parents to provide for their children's maintenance, yet neither the trial court nor the first appellate court delineated the precise amount of maintenance costs each parent should bear. Without a clear indication of the amount, such an order became unenforceable.
16. On the foregoing premises, the absence of specified maintenance costs rendered that obligation practically unattainable. Therefore, the court record should be remitted to the trial court before the same magistrate for the assessment and determination of appropriate maintenance costs after hearing the parties. In the event that the trial magistrate was unavailable, another competent magistrate would take over.

Appeal partly allowed with no order as to costs.

No order as to costs.