Christian marriage is a one-man, one-woman union until death does them part. However, from this family court decision, I will look at a man in a Christian marriage who meanders and concubines with other women without seeking a divorce from his first legal wife and proceeds to write a will that disowns his legal wife as a lawful will! That will, in my opinion, shouldn’t be allowed to stand! The family court has legalized such bastardized unions, justifying them based upon some irrelevant precedents depriving the legal family of their just dues. This article is asking one question: since when has Tanzania’s marriage act legalized bigamy in a Christian marriage?
This story begins with the death of a prominent businessman in Dar-es-Salaam, Joseph Mfugale, who died on 31st July 2021, leaving behind three families and some 15 issues or so. His first wife is no longer with us so two other wives survive Mfugale. His first wife, Maulicia, now deceased, and Mfugale married on 14th October 1964. It was a Roman Catholic marriage of one husband and one wife. The marriage was never annulled until Mfugale had passed away. On 16th September 2015, Mfugale, who owns the famous Peacock Hotel among his other businesses, made a will that empowered his second wife, Kalvarina Mfugale, and her children as sole administrators of his properties and wealth!
In that will, the children of his second wife were allotted shares of the Peacock Hotel on condition they would share the unspecified dividends with the offspring of the first family. This became one of the critical points the family court parlayed to justify the legality of the will. The court ruled that the first family was not left empty-handed. Therefore, the will was and still is a legal document for execution!
A marriage between a man and a woman is a contractual relationship with rights and obligations. It is not a matter for parties to a contract to behave as they wish. There should be consequences when parties to a marriage contract violate the clear terms of a marriage contract without seeking a divorce. A spouse in a Christian marriage cannot dispose of matrimonial properties in the form of a will or otherwise as if he were a sole owner; that is the gist of this discourse.
The first casualty of bigamy is defined as a coexistence of polygamy within monogamy or the crime of marrying one who has a spouse who is still living, of whom he has no valid divorce that has been effected. One who is in a Christian marriage cannot and shouldn’t be allowed to enter into unholy unions with other women while he is still subsisting with his or her Christian spouse. This amounts to bigamy.
Even if one claims bigamy is an illegal importation from the Western world, one still has to accept the legal consequences of violating clear provisions of the first Christian marriage. What does it mean to have a Christian marriage with its terms of engagement obliterated without a notice of intent and a divorce to follow?
Family Court Judge Hon. Sarwatt took solace on two irrelevant precedents to legalize bigamy, and hence, it was not objectionable to a will performance for extramarital families. The two decisions were Benson Benjamin Mengi vs. Abdiel Reginald Mengi and Another case no. 39 of 2019. The second case was Innocent Mbilinyi (1969) HCD No. 283. The two cases were considered and applied to justify the conduct of the testator of a will before he die, which qualifies the legality of the will!
My problem is that in the case of Reginald Mengi, the facts of the case and applicable laws have zero bearing on the case at hand, rendering it irrelevant in the determination of the matter. In the case of Reginald Mengi, the complainant was not the second wife but the children of the first wife. Both first wives in the two cases were deceased, with their husbands being the only conspicuous similarity. In the Mengi case, the first wife was legally divorced, and her estate was not under dispute, unlike in the case we are discussing here. In this case, the first wife’s share of the marriage properties was never apportioned to her before death. The Mengi subsisting wife was lawful under a legal marriage, while the second wife in the case here isn’t.
The dispute in the Reginald Mengi case was the legality of the will based on the non-availability of witnesses as per the requirement of the law. Also, the mental soundness of the testator was also an issue of bitter confrontation. Mental soundness was not under consideration in this case. In this matter, the issue of legal witnesses didn’t surface. In this matter, the dispute against a will is about an unlawful wife replacing a lawful one in the mandate execution of the deceased’s estate; in the Mengi case, it was the opposite. How Judge Sarwatt saw there were similarities with the Mengi case defies logic and commonsense.
The case of Re Innocent Mbilinyi, deceased [1969] HCD No.283, illustrates how Tanzania Courts apply the mode of life test. The deceased was a Ngoni married to a Chagga woman under Christian marriage rites. Both were staying in Dar es Salaam. The deceased had left Songea when he was still of the tender age of about 7 years. He was educated outside Songea until he graduated with a Bachelor of Arts. Both rarely visited Songea or Moshi. They had three children from the marriage. Innocent died intestate, and the matter was brought before the High Court to determine which law was to apply in the administration of the deceased’s estate.
The Judge held that, “on these facts which are in no way controverted I am satisfied that it can be said that the deceased had abandoned the customary way of life in favour of what may be called a Christian and non-traditional way. There is satisfactory evidence that he was largely alienated from his family and that his children had no connection whatsoever with them. Accordingly, I would direct that the law to be applied in the administration of the estate of the deceased should be the Indian Succession Act”.
The Mbilinyi case is inapplicable to our situation because the facts of the case and the applicable laws are very different. In the cited case, there was no dispute of having a concubinage wrangle as in our case. Therefore, drawing up similarities makes no sense. Besides, the law of inheritance has evolved to recognize matrimonial property doesn’t belong to either husband or wife alone. It is co-jointly owned. Therefore, matrimonial properties cannot be disposed of by one spouse for a simple is not his or hers alone. Such inheritance rights have also been enshrined in the land laws. Matrimonial properties can nowadays be disposed of by the cosigners. Such legal developments were not captured in the Innocent Mbilinyi case, making it irrelevant in the determination of the matter before the family court.
The plaintiffs have vowed to appeal, and they should because the case laws applied bear no resemblance at all to the case that was decided.
Read more analysis by Rutashubanyuma Nestory
