Adoption
On the Mainland only the High Court makes an adoption order (Law of the Child Act, s. 54), after six months of care and a social welfare report, a foreigner must have lived in Tanzania for three years (s. 74), and on Zanzibar no foreigner may adopt at all (Children's Act 2011, s. 94).
| Court (Mainland) | High Court for an adoption order; resident magistrate's or district court for an open adoption by a relative (Cap. 13, s. 54(1)) |
|---|---|
| Who may apply | Husband and wife jointly, or a parent alone or with a spouse; relatives for open adoption (s. 55) |
| Applicant | 25 or over and 21 years older than the child, or a relative over 25, or a single Tanzanian woman; a man alone only for his son unless special circumstances (s. 56(1)-(2)) |
Full detail: Adoption
Childcare
Two statutes run side by side on the Mainland: the Law of Marriage Act (Cap. 29, ss. 125 to 137) for children of a marriage that is being dissolved or annulled, and Part V of the Law of the Child Act (Cap. 13, ss. 34 to 51), which applies to any child and is the route for parents who were never married. Section 26 of the Child Act gives every child of separated or divorced parents a right to the standard of maintenance and schooling he or she had before the split, to live with the parent best able to raise the child, and to visit and stay with the other parent whenever he or she wishes unless school or training suffers. Zanzibar has its own rules in Part VI of the Children's Act 2011 (ss. 55 to 71).
Under s. 125(1) of the Law of Marriage Act the court may place a child with the father or the mother or, where exceptional circumstances make that undesirable, with another relative or a child-welfare association. It weighs the parents' wishes, the child's own wishes if he or she can express an independent opinion, and the customs of the community (s. 125(2)). The order may fix the child's residence, schooling and religion, hand day-to-day care to someone else for a time, give the other parent or a relative visits or access, and forbid taking the child out of Tanzania (s. 126); an injunction against removal abroad is available while proceedings are pending or when one parent has custody to the exclusion of the other (s. 137). A parent can be declared unfit to have custody, and then has no automatic right to the child on the other parent's death (s. 127); where a marriage is a nullity or is annulled, the mother has custody unless an agreement or order says otherwise (s. 128). A custody or maintenance order may be varied or rescinded if it rested on a misrepresentation or mistake of fact or if circumstances have materially changed (s. 133).
The Law of the Child Act lets a parent, guardian or relative who is caring for a child apply for custody, in the same proceedings as a parentage declaration if need be, and lets the court move custody to another person or an approved residential home later (s. 37). A person who cared for the child before a custody order may seek periodic access (s. 38). In deciding, the court considers the child's best interests and 'the importance of a child being with his mother', the age and sex of the child, the preference for keeping a child with parents unless their rights are persistently abused, the child's views if independently given, keeping siblings together and continuity of care (s. 39). Unlawfully removing a child from lawful custody, or failing to supply a child's necessities when legally liable, is an offence punishable by a fine of TSh 500,000 to 5 million or six months to three years (ss. 40 and 51).
Maintenance is a separate order. A father must support his children whether or not they are with him, and a mother must contribute where the father is dead, cannot be found or is unable to pay (Law of Marriage Act, s. 129). The Child Act lists who may apply (a parent, guardian, the child through a next friend, a social welfare officer or a relative, s. 42), the factors (both parents' income and wealth, any impairment of earning capacity, the payer's other children, the cost of living where the child lives, s. 44), and a time frame against an alleged father: the mother may apply before the birth, within 24 months of the birth, or within 24 months after the man returns to the Mainland, and the court refuses unless it has reasonable cause to believe he is the father, the claim is made in good faith and he was asked to provide and refused or gave too little (s. 43). The court may order a DNA test and decide who pays for it; refusing is an offence punishable by a fine of at least TSh 500,000 or three months (s. 36). An order expires when the child turns 18, takes up gainful employment or dies, and may continue past 18 for a child in education or training (ss. 47 and 48); it is enforced like a money decree (Law of Marriage Act, ss. 124(4) and 135). On 1 July 2022 the High Court at Shinyanga upheld a primary court's order of TSh 100,000 a month plus school and medical expenses for three children and rejected the father's argument that he was already paying fees and bills, saying a father's willing support does not displace a court order.
On Zanzibar the Children's Act 2011 lets a court award custody to a parent, a guardian, a person who applies with a parent's or guardian's consent after three months of actual custody, or anyone who shows cause (s. 58(3)); custody carries guardianship unless the court directs otherwise (s. 59). The court weighs the child's rights, age and sex, the right of access to both parents, the child's views gathered independently of the parents and the effect of change (s. 61). A maintenance claim against an alleged father fails unless there is reasonable cause to believe he is the real father (s. 65(2)). A court may order an employer to pay part of the debtor's earnings straight to the child or the custodian (s. 69), and disobeying an order is punishable by a fine of up to TSh 5 million or three years (s. 71).
Key points
| Custody test (marriage) | Child's welfare paramount; parents' wishes, child's own wishes, community customs (Law of Marriage Act, s. 125(2)) |
|---|---|
| Custody test (any child) | Best interests and the importance of being with the mother; views of the child, siblings kept together (Law of the Child Act, s. 39) |
| Under-seven presumption | Rebuttable: with the mother, having regard to disruption from a change (Marriage Act, s. 125(3); Child Act, s. 26(2)) |
| Who may apply for custody | A parent, guardian or relative caring for the child (Child Act, s. 37(1)) |
| Order against removal abroad | Condition in a custody order (s. 126(2)(e)) or injunction (s. 137) |
| Maintenance duty | Father, whether or not the child is with him; mother if father dead, untraceable or unable (Marriage Act, s. 129) |
| Claim against alleged father | Before birth, within 24 months of birth, or within 24 months of his return (Child Act, s. 43(1)) |
| Duration of an order | To 18, gainful employment or death; beyond 18 for education or training (Child Act, ss. 47 and 48) |
| Penalty (removal; non-support) | TSh 500,000 to 5 million or 6 months to 3 years (Child Act, s. 51) |
| Zanzibar: breach of a maintenance order | Fine up to TSh 5 million or up to 3 years (Children's Act 2011, s. 71) |
In practice
- If you were never married to the other parent, apply under the Law of the Child Act rather than the Marriage Act: custody (s. 37), access (s. 38) and maintenance (s. 42) can be sought by a parent, guardian or relative, and the court may first call for a social inquiry report from a social welfare officer (s. 45).
- Ask for the conditions you need in the custody order itself: residence, schooling, religion, visits for the other parent and, if there is a flight risk, a bar on taking the child out of Tanzania (Marriage Act, s. 126(2)); the court may also require property to be settled on trustees to secure payments (s. 131).
- Prepare the evidence the court weighs under s. 44 of the Child Act: both parents' pay or business income, the payer's other children, school-fee and medical receipts and the cost of living where the child lives; ask expressly for education and medical costs, as the Shinyanga order did.
- Against an alleged father, file before the birth or within 24 months of it, show that you asked him to provide and he refused or gave too little (s. 43(2)(b)), and ask for a DNA test and an order on who pays (s. 36(2) and (3)).
- Once an order exists, enforce it as a money decree under the Civil Procedure Code (Marriage Act, s. 124(4)) and go back to the court if the child's needs or the payer's means change (s. 133).
Cost and coverage
The sources opened for this page give no court-fee schedule for custody or maintenance applications; the only monthly amount found in a ruling is TSh 100,000 plus school and medical expenses, upheld for three children by the High Court at Shinyanga on 1 July 2022.
Where to go
- Primary court, district court, resident magistrate's court or High Court, all of which have matrimonial jurisdiction (Marriage Act, s. 76), and the same courts for applications under Part V of the Child Act; in matrimonial proceedings an appeal from a primary, district or resident magistrate's court goes to the High Court within 45 days (Marriage Act, s. 80).
- District social welfare officers, who prepare social inquiry reports on custody, access and maintenance (Child Act, s. 45).
- On Zanzibar, the Children's Court of each region for maintenance, custody and parentage claims, with the Kadhi's Court keeping its jurisdiction over Muslim law on personal status, marriage, divorce and maintenance (Children's Act 2011, s. 18).
Worth knowing
The two Mainland statutes end child maintenance differently: s. 132 of the Marriage Act expires an order at 18, whereas s. 47 of the Child Act also ends it on gainful employment or death and s. 48 allows it to continue past 18 for a child in education or training.
Frequently asked questions
Can a mother who never married the father claim child maintenance?
Yes, under s. 43 of the Law of the Child Act: before the child is born, within 24 months of the birth, or within 24 months of the man's return to the Mainland. The court refuses if it lacks reasonable cause to believe he is the father or if he was never asked to provide, and it may order a DNA test (s. 36).
Does the child decide which parent to live with?
The child's view counts but does not settle the question: the Marriage Act has the court consider the child's wishes where he or she is old enough to give an independent opinion (s. 125(2)(b)), and the Child Act looks at views that have been independently given (s. 39(2)(d)); neither text fixes an age.
Until what age must a parent pay maintenance?
A Child Act order expires at 18, on gainful employment or on the child's death, and may continue beyond 18 if the child is in education or training (ss. 47 and 48); under the Marriage Act an order expires at 18 unless it names a shorter period (s. 132).
Sources
- Law of Marriage Act, Cap. 29, Revised Edition 2023 (Attorney General's Office, official revised text) — ss. 124 to 137 (custody and maintenance of children), Revised Edition 2023
- Law of the Child Act, Cap. 13, Revised Edition 2023 (Attorney General's Office, official revised text) — ss. 26 and 34 to 51 (child's rights on separation, parentage, custody, access, maintenance), Revised Edition 2023
- Children's Act, Act No. 6 of 2011 (Zanzibar), assented 6 July 2011 — ss. 58 to 71 (custody, guardianship, access, maintenance) and s. 18 (Children's Courts)
- Anthony Kidima Kaliwa v Rosemary Lengwa Samweli, PC Matrimonial Appeal No. 3 of 2021, High Court at Shinyanga (1 July 2022) — High Court, Shinyanga, 1 July 2022: custody under s. 125(3), TSh 100,000 monthly maintenance plus school and medical costs upheld
The general article: Childcare · Compare with another country
Inheritance
There is no single succession code on the Mainland: the estate is shared under customary law, Islamic law or the Probate and Administration of Estates Act depending on the deceased (s. 88), the 1963 customary rules give a widow no share where the deceased left clan relatives (Rule 27), and in 2015 the CEDAW Committee found that these rules had violated two widows' rights.
| Applicable law (Part IX estates) | Tribal law, unless the deceased professed Islam and intended Islamic law; Islamic law for a Swahili, unless customary law intended (Probate Act, s. 88(1)) |
|---|---|
| Primary court | May administer an estate under customary or Islamic law where the deceased had a fixed abode in its area (Magistrates' Courts Act, Fifth Sch., para. 1) |
| Small estate | Gross value not above TSh 100 million; district court (Probate Act, ss. 2 and 6) |
Full detail: Inheritance