IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
TEMEKE SUB-REGISTRY
(ONE-STOP JUDICIAL CENTRE)
AT TEMEKE
MATRIMONIAL CAUSE NO. 4727 OF 2024
B- M.................................................................................................... PETITIONER
VERSUS.
D. K.................................................................................................... RESPONDENT
JUDGMENT
26th & 26th September, 2024
BARTHY, J.:
This case revolves around a petition for divorce filed by the petitioner,
(who will be referred to B.H.M.), against his wife (referred to as D.K). Their
once flourishing marriage, was celebrated in a Christian ceremony at St.
Joseph Church in Dar es Salaam on 21st of June, 1998, has now reached a
turning point.
What began as a journey that took them across continents—from
Kigali, Rwanda, to eventually settling in the U.S., is now overshadowed by
years of separation and estrangement. Together, they raised two children,
i
but cracks in their relationship became apparent when the petitioner began
periods of separation. His relocation to Central Africa for work has now
resulted in nearly three years of separation.
In the wake of this separation, the couple mutually decided to part
ways, culminating in this petition for divorce. The deed of settlement they
signed outlines the terms of maintenance and division of assets, leaving the
court with the task of determining the final and most crucial question:
whether the marriage has indeed irretrievably broken down.
At the hearing of this matter, both parties were duly represented. The
petitioner was represented by Mr. Othman Omary, learned advocate, while
the respondent was represented by Mr. Greyson Laizer, learned advocate.
The petitioner, testifying as PW1, stated that he married the
respondent in 1998 at St. Joseph Church. They lived in various countries,
including Rwanda and the U.S., and have two children together: M.M., aged
24, and K.M., aged 23. He testified that although they lived happily for some
time, differences arose, leading to their separation. He explained that he
moved to Central Africa for work and has been living separately from the
respondent for nearly three years.
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The petitioner further confirmed that he converted to Islam in 2020
and sought assistance from the Marriage Conciliatory Board (MCB) before
filing this petition. He tendered a certificate from the board as proof of
conciliation efforts, which was admitted as Exhibit Pl. The petitioner
concluded his testimony by praying that the court finds the marriage
irretrievably broken and grants the decree of divorce in accordance with the
deed of settlement signed by both parties.
The respondent, testifying as DW1, confirmed that their marriage had
indeed faced difficulties, particularly a breakdown in communication. She
stated that although the petitioner had left home on several occasions, his
move to Central Africa in 2022 marked a permanent separation, as it was
evident he had planned to leave permanently.
The respondent expressed no objection to the dissolution of the
marriage, acknowledging that the petitioner had long intended to end the
relationship. She also testified that she had requested medical insurance and
maintenance due to her unemployment, which the petitioner had agreed to
provide as per the terms of the deed of settlement.
Having heard the evidence from both parties, the central issue before
this court is whether the marriage has irretrievably broken down. From the
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evidence presented, it is clear that the petitioner and respondent celebrated
a Christian marriage and lived together for almost 24 years. The petitioner
testified that their differences were referred to the Marriage Conciliatory
Board (the MCB), but due to the respondent residing in the U.S., conciliation
efforts were unsuccessful. The MCB is required to issue a certificate in that
regard under Section 101(b) of the Law of Marriage Act, Cap 29 R.E. 2019
(LMA), which was admitted as Exh. Pl.
The key issue now to be determined is whether the marriage has
irreparably broken down. The petitioner cited various reasons in his petition
as grounds for seeking a divorce, but he has provided evidence in court
regarding their prolonged separation, which falls under Section 107(2)(f) of
the LMA as grounds for divorce.
Both parties have acknowledged that they have been separated for
nearly three years and have mutually agreed that their differences cannot
be reconciled. The respondent, in her testimony, raised no objection to the
petition for divorce, affirming that the marriage has reached an irreparable
state.
Based on the evidence and the mutual agreement between the parties,
the court is satisfied that the marriage has irretrievably broken down under
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Section 110(l)(a) of the LMA. In the case of Tumaini M. Simoga vs
Leonia Tumaini Balenga (Civil Appeal 117 of 2022) Court of Appeal at
Morogoro [2023] TZCA 249 (12 May 2023), it was affirmed that no decree
of divorce shall be granted unless it is proven that the marriage has
irretrievably broken down.
Both parties have signed a deed of settlement, which addresses
maintenance and the division of assets. This further demonstrates that they
have resolved their marital issues amicably.
In light of the foregoing, the court finds that the marriage between the
petitioner and the respondent has irretrievably broken down. The following
orders are made:
1. A decree of divorce is hereby granted, dissolving the marriage between
the petitioner and the respondent. The decree for divorce will be issued
after 45 days from the date of this judgment.
2. The deed of settlement signed by both parties, made under Rule 38(b)
& (c) of the Law of Marriage (Matrimonial Proceedings) Rules (Cap. 29
R.E. 2002), which addresses maintenance and division of assets, is
adopted as part of the court's decree as follows:
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i) The house located in New York, USA, shall be sold, and the
proceeds from the sale shall be used to purchase a new house
in the U.S. for the benefit of the two children of the marriage.
ii) The house located in Kigali shall be awarded to the
respondent.
iii) The status of the house in Mbezi kwa Msuguri [Mbezi
Shamba], Dar es Salaam, currently occupied by the
petitioner's mother, shall remain unchanged.
The petitioner shall also:
a) Pay the respondent USD 2,000.00 as a monthly maintenance
allowance, payable from the date of registration of this deed
of settlement as a court decree. This allowance shall remain
valid until the petitioner retires.
b) Provide and cover the respondent's health insurance, valid
from the date of registration of this deed of settlement as a
court decree, until the petitioner retires.
c) The payment of the monthly allowance and health coverage
for the respondent by the petitioner shall cease immediately
upon the petitioner's retirement.
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Given the nature of relationship of the parties, each shall bear their
own costs for the case. I order accordingly.
Dated at Temeke this 26th September, 2024.
G.N. BART
JUDGE
Delivered in the presence of Petitioner in person, Mr. Othman Omary learned
advocate for the petitioner, Mr. Greyson Laizer learned advocate for the
respondent, respondent present virtually and Ms. Bernadina Tayari, RMA.
